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 1 
 
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 6 
 
k' 
 
 1 
 
 
 
 '■^,s,fVj, 
 
 'mm froin the Sii|iiiitt;^>i^#^^ 
 
 ^mvcEit 
 
 riiAi^ 
 
 VICKER HOBBS. 
 
 
 
 AND 
 
 THE ESQUIMALT AND NANAIMO RAILWAY COMPANy, 
 
 DEPBNOAKTS (RESPONDSMt^ 
 
 V 
 
 CASE ON APPEAL 
 
 C. C. PEMBERTON; 
 
 Appell tilths Solicitor. 
 
 DAVIE, POOr.EY & LUXTON, ^' 
 
 Respondents' Solicitors. 
 
 
 II- 
 
 
 f J; 
 
 ^: ,^;i 
 
 
 Q«nni*ocD, Smith a Ramoou>h. 
 Pi^irfSXS ARC BoOmiWBM. VtCMKIA, B. C, iiigB. 
 
 mi 
 
 SSSS 
 
 3BSS9S 
 
 i|> 1. ' I .ijf* 
 
 1SXX 
 
 
 
 
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ICE 
 
 mA 
 
Ill THE SUPBEHE COURT OF CANADA 
 
 On Appeal from the Supreme Court of British Columbia 
 
 lO 
 
 Between 
 
 FRANK VICKER HOBBS, 
 
 Plaintiki (Appellant), 
 
 20 
 
 AND 
 
 THE ESQUIMALT AND NANAIMO RAILWAY COMPANY, 
 
 Defenpants (Respondents). 
 
 30 
 
 CASE ON APPEAL 
 
 40 
 
 C. C. PEMBERTON; 
 
 Appellant's Solicitor. 
 
 DAVIE, POOLEY & LUXTON, 
 
 Respondents' Solicitors. 
 
 3,pr,VfV.?fU LIBRARY. 
 yiCTOHiA. B C« 
 

INnE.X TO APPEAL HOOK 
 
 PI,KAUIN(1H: 
 
 StateniBiit of Cliiini, ilaleil Nth Fehruuiy, 18!>7 --'j 
 
 Stateinmit of Dcfeiic-c, ilatwl loth March, 1H97 •' •j 
 
 Reply, dated Sth April, 1X97 '"'- " 
 
 ■VIDKNCK AND VKO<KKUIN(i» AT THIAI., IJATEl) I7tll, I'Hil AND IDtll lUNK, 
 
 1H97. 
 
 PLAISTinf's C'AHK. 
 
 Frank Vioker Hobbs, Examination in Chief of ^^ -'♦ 
 
 CrosK-Kxauiination of l.J-4'_ 
 
 Re- Examination of 42-4r) 
 
 Examined by the Court 4.)-4 < 
 
 Ralph Biauiley, Examination in Chief of 47-48 
 
 Cross-Examination of 48-49 
 
 Re-Examination of ■*' 
 
 Allan G. Murray, Examination in Chief of 49-52 
 
 Documentary and Examination Uefoie Trial Evidence Admitted ... 63 
 
 Chartres Cecil Pemberton, Examination in Chief of 53-54 
 
 Cross- Examination of j4-oj 
 
 Elijah Priest, Examination in Chief of 55-68 
 
 Cross-Examination of i)8-62 
 
 Re-Examination of 62-68 
 
 EXAMINATION EVIDBNCE IlL )RK TRIAL: 
 
 John Trutch, Cross-Examination of 68-79 
 
 Leonard Hollis Solly, Cross-Examination of 79 91 
 
 James Dunsmuir, Cross-Examination of 91-96 
 
 Thomas Sinclair Gore, Cross Examination of • • 96-100 
 
 DEPKNUANTS' ("ASK. 
 
 John Trutch, Examination in Chief of 100-105 
 
 Cross-Examination of 105-1 12 
 
 Re-Examination of 112-113 
 
 Thomas Sinclair Gore, Examination in Chief of 113-116 
 
 Cross-Examination of 115-119 
 
 Leonard Ho'Hg Solly, Examination in Chief of 119-125 
 
 vJross-Examination of 125-130 
 
 James Dunsmuir, Examination in Chief of 130-132 
 
 Cross-Examination of 132-1 42 
 
 Re-Examination of 142-143 
 
 Examined by the Court 143-145 
 
 William George Pinder, Examination in Chief of 145-146 
 
 Cross-Examination of 146-151 
 
 Re-Examination of 151-152 
 
 Further Cross-Examination of 162-153 
 
 Further Re- Examination of 163 
 
 Ephraim Hodgson, Examination in Chief of 153-156 
 
 Cross-Examination of 156-163 
 
 Ro-Examination of 163-164 
 
 ►^ ►^ I— -" - ,•• 
 
Hutchincoii (I<mIkhiiii. Kxniniimtioii in Cliii'I'of. . . Hit Hifi 
 
 (VoHH-Kxniiiiimlii)ii of Idri ItKi 
 
 R<t'K)(iiiiiiniitioii o( ... I(5<1 IH7 
 
 RfiiHoiiK f(ir •liiilf(iiii-iit nf tli<^ Hon. tlii^ Cliii'f JuHtiut* 1(17 171 
 
 Onlcr for JudKnit-iit, tliUnl I'.ttli Jiin.', |H!)" 171 I"*-' 
 
 Notice of A|>i«'ul to Full Court, rlutfd t4tli |)< ilur, I81I7 I7J-17I'. 
 
 HeaHonH for ■luilf^incnt of Kuil ('curt 
 
 Drukc, .1 177 I71» 
 
 VVali(.Mn, J I7'.t 
 
 Irving, J IHO IMH 
 
 Ordtir for Judgniont of Full Court, diitfd JOth Miinli, IS'.tS ISli l>7 
 
 Notice of A()p(ml to Suprrnir IJourl of Canmlii, diiti'd 'Jftli Mari'li, 
 
 lSi)8.' |K7 
 
 Jlond for Security of Costs, diit.'d l.'iili April, IH'.IS \H7 iss 
 
 Ordnr AllowinK Appeal an<l Approvin;^ Srcurity, dated titli Mii\, 
 
 1898 188 IK!) 
 
 Order Kxtonding Time for Filing Ciise, dated •-'tid June, 1898 1 8!l 
 
 Order Further Kxtending Time for Filing (/'use, dated .'lOlli .June, 
 
 1898 \**<.> 
 
 KXIIIIIITS I'HOimCEII AT THIAL : 
 
 Exhibit "A"- Faots Admitted liy Defendants \'M 
 
 "H" iJescription of I^and Applied for by Plaintitl', dated 
 28th Novrnd)er, 1X89, (K.^feried tons Kxhiliit "A" 
 in Kxaminiition Kvidenue Before Trial) 1911 191 
 
 "C" — Agreement Between l^efendants and Plaintill', dated 
 J8th Novendier, 1889, (Referred to as Kxhibit "B" 
 in Kxaniination Kvidenee before Trial) 191 
 
 "D" -l>;tter from Plaintill' ti) Defendants, daUfd »th April, 
 189'J, (Iteferred to as Exhibit "t!" in Kxaniination 
 Kvidenee Before Trial) 191 I9l' 
 
 "K"- letter from T. S. (iore to Plaintitl', dated (ith April, 
 1892, (Referred teas Kxhibit "D" in Kxaniination 
 Kvidenee Before Triol) 192 
 
 "F'' -Plan, encloHed in last mentioned letter, (Referred to 
 as Kxhibit "D" in Kxaniination Kvidenee Before 
 Trial) 192 
 
 "({" — Notice of Instalments from T. H. (lore to Plaintill, 
 dated - June, 189,3, (Referred to as Kxhibit "(i ' 
 in Examination Kvidenee Before Trial) I9:t 
 
 "H"— Notice of Instalments from T. .S. (iore to Plaintitl', 
 dated 15th February, 1894, (Referred to as Kxhibit 
 "H" in Examination Evidence Before Trial) 19;)- 194 
 
 "I"--Snioll Plan, prepared by L. H. Solly, (Referred to as 
 
 Exhibit "F" in Examination Kvidenee Before Trial) 194 
 
 "J"- Lt!lter from L. H. Solly to Plaintitl', dated 2n'l .March, 
 1890, (Referred to as Kxhibit "1" i" Kxaniination 
 Evidence Before Trial) 194 
 
 "K"- Letter from Plaintitl' to L. H. Solly, dated 10th 
 April, 1890, (Referred to as Kxhibit "No. 1 " in 
 Examination Kvidenee Before Trial) \'Jf> 
 
"L"— Lutttr from L. II. Solly to l'l»iiitiir,<liit.d I Itli A|>ril, 
 
 IhOfi "'•' 
 
 "M"— l*tt«!r from L. II. Holly ii> IMniiitill', dnti'd '-'Tdi 
 
 April, IH96, (IMfrrcil to «« Kxliiliit "No. •_'" in 
 
 KxaniiiiRtioii Kvldi'iirt' Ht-foii' Trial). I'"' 
 
 "N"— LhUit from l'liimr,i(l' to K. II. Solly, (liilnl -JHlli 
 
 April, IHitfi, (HcfiiiMil to IIS K\liil)ii "No. H" in 
 
 K\amiiiatioii Kvidr It.'fori' Trial) I'-"' 
 
 "O" Chnpie for |49!».00 from PliiiiitilV to Dcfi-ndantn. 
 datptl 2Mth April, IKilO, iinclogcd in laitt irn'Mtioiwd 
 
 fcttUtr "•■ 
 
 "P"- LetU-r from L. II. Solly tx> Pkiiitill, dutcd J.' April, 
 \XW, (Kcferrcd to as Kxhiliit "No .'V in l.\ i liiiii 
 
 tion Kvidencf IMon- Triol) '"< 
 
 •Q" -Reci-ipt from Di'fi'iKiiintK to I'laiiitiir 'or lialiiniT of 
 purchaiH- inoiiiy, diiti'd -Jlttli Apri" IS'Jtl, ( K.I. iiid 
 to nH Kxhiliit "No. I" ill KxBiniimtion I'Mdcin 
 
 B.'for.- Trial) ''J** 
 
 "R"--Lett.r from L. II. .Solly to Pluintiti, dat. d 8tli May, 
 l.-itt;, ( UcfciTi'd to m Kxliil>it "No. tl" in Kxuniina- 
 
 tion Kvidcncf lli'forc Trial) '•'■'^ 
 
 •S" .MKiiiornndum of Receipt for Conveyance of Defend- 
 ants, ( Keferri-d to ..s Exliiliit 'No. .^" in K\-.iiiina- 
 
 tiiili Kvideiiee liefoie Trial) I'-*" 
 
 •'T"— Form of Conveyaiice, tendered by Defendants to 
 
 PlaintitI, dated l.sl May, \X'M I!»'.» :iOl 
 
 "U"— L.-tter from PInintiH to L. II. Solly, dated !Uh May, 
 IK'.Ml. (Keferred tons Kxhiliit "No. 7" in Kxaniina 
 
 tion Kvidenoe Itefore Trial) -'^1 
 
 »V"— Letter from L. II. Solly to Pluintill, dated .in) Sep 
 
 temlM-r, IH'.tC, 201 •-'02 
 
 "W"— (,'he.|ue for iTd'.t.OO of Uefendants to Pluintill, dated 
 
 :!rd S..pteml.er, IX'Jfi -0- 
 
 ••X"— I>»-d, tendered by PlaintilV to Defendants, dated — 
 
 December, \XW 202 20;J 
 
 ••Y"— Field Niites. made by K. Priest, P. h. S., of Uiid 
 
 Claimed by Plaintiff -'<•:» 
 
 "Z"- Plan, prepared liy W. (J. Pindcr 203 
 
 ■'No. I'-Oflieial .Map of Cranberry District, 18r)9, of 
 
 Defendants 203 
 
 "No. 2"— Defendants' rejjister of Douglas District 203 
 
 .'So. T—Plan '>f Douglas District of Defendants 204 
 
 "No. 4" — Correspondence b<'tween Hunter .t Duff, actin;,' 
 
 for Plantiff, and the Defendants 204-207 
 
 /, 
 
In the Supreme Court of Canada. 
 
 ON APPEAL FROM THE SUPREME COIRT OF BRITISH COLIMBIA. 
 
 Ketween 
 
 FRANK VICKER HOBBS, 
 
 Plaintiki (Appellant), 
 
 AND 
 
 THE ESQUIMALT AND NANAIMO RAILWAY COMPANY, 
 
 Defendants (Respondents). 
 
 lO 
 
 20 
 
 Writ Issued the 30TH Day of December, 1896. 
 
 STATEMENT OF CLAIM. 
 
 1. The Plaintiff resides at the City of Victoria in the Province of British Cohimbia, 
 antl is a merchant. 
 
 2. The Defendant Company is a corporation having its head office at the City of30 
 Victoria. 
 
 3. By agreement in writing dated the 28th day of November, 1889, the Defendant 
 Company agreed to .sell to the Plaintiff the inheritance in fee simple of and in certain 
 lands, tenements and hereditaments, situate in Douglas and Cranberry Districts, Van- 
 couver Island, in the Province of British Columbia. o said agreement i« contained in 
 a receipt signed by the Land Commissioner and Agent of the Defendant Company and is 
 in the words and figures following : 
 
 •'ESQUIMALT & NANAIMO RAILWAY CO. 40 
 
 " Land Department, 
 
 " Victoria, B. C, November i8th, 1889. 
 
 "Received of Frank Vicker Hobbs the sum of one hundred and twenty dollars 
 ($120.00) being a first payment on account of his purchase from the E. & N. Ry Com- 
 pany of one hundred and si.xty (160) acres of land in Bright District, at the price of three 
 tlollars ($3.00) an acre, commencing at a point about two (2) miles west of Louis Stark's 
 Crown Grant in Cranberry District, thence running west 40 chains to Berkely Creek, 
 
th 
 m 
 
 (7 
 til 
 
 ai 
 
 p 
 ti 
 
lO 
 
 thence south 40 chains, the;icc cast 40 chains, tlicnce north 40 chains to place of com- 
 mencement ; the balance of purchase money to be paid in equal instalments of sevent)-five 
 (75) cents an acre af the expiration of one, two and three years from date, with interest at 
 the rate of six per cent, per annum. 
 
 (Sgd) "JOHN TRUTCM, 
 
 " Land Commr." 
 
 The said lands, te lements and hereditaments form part of Lot 6, Douglas District, 
 and of Lots 10 and 1 1, Range i, Cranberry District aforesaid, as shewn on the Official 
 Map or Flan of said district and more particularly described as follows : 
 
 Commencing at a post 20 chains due north, % chains due west of the northeast corner 
 post of Lot 3, Douglas District, thence due east 40 chains, thence due north 40 chains, 
 thence due west 40 chains, thence due south 40 chains and 23 links more or less to place 
 of commencement, containing by admeasurement 160 acres more or less. 
 
 4. The Es", jimalt & Nanaimo Railway Company as described in the said agreement 
 of the 28th dav of No.'cmbcr, 1889, is the Defendant Company. 
 
 5. The Plaintiff duly paid the Defendant Company the said sum of f 1 20, bf mg 20 
 the first payment mentioned in the said agreement of the 28th day of November, 1 889. 
 
 6. The agreement so entered into has been part performed, as follows : Shortly 
 after the same was entered into the Plaintiff entered into possession of the said land and 
 built a house and made certain other improvements thereon, and in the month of March, 
 1896, the Plaintiff had the land set forth in the said agreement surveyed in accordance 
 with a request by the Defendant Compa'y, and the said land was more particularly defined 
 and described as set forth in Paragraph 3 hereof, which survey was .accepted and agreed 
 to by the Defendant Company. 
 
 7. On the 28th April, 1896, the I'laintiff paid the Defendant Company the balance 
 of the purchase money due under the said agreement of the 28th of November, 1889, and 
 the interest due thereon at the rate specified in the said agreement to the time of payment. 
 
 8. On the 8th day of May 1896 the defendant Company wrote to the Plaintiff a let. 
 ter enclosing a conveyance from the Defendant Company to the Plaintiff of the inheritance 
 in fee simple of and in the said hereditaments but subject to certain reservations in the 
 words and figures following, that is to say: 
 
 " Saving and reserving to the said Company, their successors and assigns, and their 
 agents, servants, contractors, and workmen, the right to enter into and upon the said land, 
 and cut and carry away any timber therefrom for railway purposes without paying 
 compensation therefor:" 
 
 "And saving and reserving also to the said Company, their successors and assigns rights 
 of way for their railway through the said land, and the right for themselves, their agents, 
 servants, contractors and workmen to enter upon and take such parts of the said land as 
 may be required for the stations and workshops of the said Company without paying com- 
 pensation therefor." 
 
 40 
 
"And saving and reserving to the said Con.pany, their successors and assigns, all coal, 
 coal oil, ores, mines, minerals, and quarries whatsover, in or under the land hereby granted 
 or cxpre-ised so to be, with full liberty of ingress, egress aid regress at all times for the said 
 Company, their successors and assigns and their servants, agents and workmen, in, to and 
 upon the said land, anc* either with or without railways, horses or otlier cattle, carts and 
 wagons and other carriages, for the purpose of searching for, vorking, getting and carrying 
 away the said coal, coal oil, ores, mines, minerals and quarries, and with full liberty also, 
 for the said Company, their successors and a-^signs, and their servants, agents and work- 
 men to sink, drive, make and use pits, shafts, drifts, adits, courses and water courses, and |o 
 to erect and set up fire and other engines, machinery and works, and to open roads in, 
 upon, under and over the said land or any part or parts thereof, lor the purposes of more 
 conveniently working and carrying away the said mines, minerals and quarries and also to 
 appropriate and use any part of the surface of the said land for depositing, placing and 
 heaping thereon the minerals, waste, rubbish, and other substances that may be gotten from 
 the said mines, minerals and quarries, the Company, their successors or assigns, ptiying 
 reasonable compensation for such of the surface of the said land as may be taken, damaged 
 or destroyed by said searching, working, getting and carrying away." 
 
 20 
 
 9. The Plaintiff returned the said conveyance to the Defendant Company and refused 
 to accept the same on account of the said reserv.itions therein contained. 
 
 10. The Defendant Company is carrying on mining operations in the neighbourhood 
 of the land so purchased l>y the Plaintiff as described in the 3rd paragraph hereof and in 
 so doing is wrongfully running a tunnel into Plaintiffs said land and is mining the co:il 
 from the Plaintiffs said Ian''. The Defendant Company is also by its ""ants or work- 
 men wrongfully occupying the house built on the said land as mentioned in the 6th para- 
 graph hereof. 
 
 1 1. The Plaintifif has tendered a conveyance of inheritance thereof in fee simple of 
 the said lands, tenements and hereditaments to the Defeidant Company, and the Defend- 
 ant Company has refused to execute the same, or to execute any convcyan e other than 
 the one containing the said reservations set forth in paragraph 8 herein. 
 
 12. The Plaintiff claims specific performance of the above agreement and that the 
 Defendant Company may be ordered to execute a proper conveyance of the said lands to 
 the PlaintifT. 
 
 The Plaintifif claims: 
 
 30 
 
 40 
 
 (i.) Specific performance of the said agreement of the 28th day of November, 1889. 
 
 (2.) That the Defendant Company may be ordered to execute a proper deed of con- 
 veyance of the said lands to the Plaintiff. 
 
 (3.) An injunction restraining the Defendant Company, its servants, agents or work- 
 men, from mining for coal and removing coal from olT the land comprised in the said 
 agreement of the 28th day of November, 1889: 
 
(4.) An account of all coal got from the lands by the Defendant Company, its ser- 
 vants, agents and workmen and every of them and of the value of such coal 
 
 Delivered this 8th day of February, 1897, by C. C. Pemberton, of 35 Yates street- 
 Victoria, B.C., Solicitor for the Plaintiff. 
 
 To Chas. E. PoOLEY, Esq., 
 
 Solicitor for the Defendant Company. 
 
 STATEMENT OF DEFENCE. 
 
 10 
 
 20 
 
 1. The Defendants admit paragra|)hs i and 2 of the Statement of Claim. 
 
 2. The Defendants did not enter into the agreement alleged in p.iragraph 3 of the 
 Statement of Claim. 
 
 3. John Trutch in the Statement of Claim referred to was not authorised to con- 
 tract for the sale of any of the Defendants' lands, e.xcept with the reservations set out in 
 paragraph 8 of the Statement of Claim, and any contract made by him as agent of the 
 Defendants which did not contain such reservations was not within the scope of his em- 
 ployment and was wholly unauthorized by the Defendants. 
 
 4. If the said John Trutch I'id make a contract with the said Plaintiff to sell hm 
 the land claimed by the Plaintiff iii this action, and such contract amounts to a contract 
 for the sale of said land without the reservations, then such agreement was entered into by 
 mistake, as the said John Trutch neve intended to contract to sell on behalf of the Defen- 
 dant Company, nor did the Plaintiff intend to contract to buy the said land without the 
 reservations aforesaid to the Defendant Company, and the intention of the said John 
 Trutch Wi. kO deal with the surface rights only 
 
 5. The alleged contract is not under the corporate seal of the Defendant Company. 30 
 
 6. The lands mentioned in the receipt .set out in paragraph 3 of the Statement of 
 Claim are not part of Lot 6, Dougla. District, and Lots 10 and 1 1, Range i, Cranberry 
 District. 
 
 7. The said John Trutch, on behalf of the Defendant Company, on or about the 
 28th day of November, 1 889, agreed to sell to the Plaintiff the land reterred to in the 
 said receipt of that date, with the exceptions and reservations set out in paragraph 8 of 
 the Statement of Claim, and in pursuance of such agreement the said John Tr. tch gave 
 to the Plaintiff the said receipt ^et out in paragraph 3 of the Statement of Claim — such 
 agreement w as partly in writing and partly verbal. 
 
 8. One of the terms of the said agreement was that the purchase money shoiild be 
 paid as follows: — $120 on the 28th November, 1889, and the balance in three equal in- 
 stalments of seventy-five cents an acre, at the expiration of one, two and three years from 
 that date, with interest at the rate of six per cent, per annum. 
 
 9. The Plaintiff did not pay any of the said deferred payments of purchase money 
 at the times appointed for payment thereof, but abandoned the land mentioned in the said 
 receipt and dccliucd to complete his contract for the purchase thereof. 
 
 40 
 
10. After such abandonment, viz. : In or about the year 1893, tlic I'laintiff applied 
 verbally to the Defendants to be allowed to purchase the land referred to in I'ar;igra])h 3 
 of the Statement of Claim as parts of Lot 6, Dou^^las District, and of Lots 10 and 11, 
 Range \, Cranberry District, and the Defendants, by their agent, then verbally agrecii to 
 .sell the same, with the reservations aforesaid, for the same sum as the Plaintiff had origin- 
 ally agreed to pay for the land referred to in the said receipt of November 28th, 1889. 
 and the Defendants have alwfiys been and are now ready and willing to convey the said 
 parts of said Lots 6, 10 and 1 1 to the Plp.inliff, with the exceptions and reservations aforc- 
 .said, but the Fiaintiff declined to accept such conveyance. ,0 
 
 1 1. The Defendants say that the 4th Section of the Statute of Frauds has not been 
 complied with with respect to any of the said land. 
 
 12. Except in so far as the same are hereinbefore admitted, the Defendants dcn>' 
 each and all the several allegations and statements contained in each paragraph of the 
 Plaintiffs Statement of Claim. 
 
 Delivered this 15th day of March, 1897, by Charles E. Poilcy, of the firm of Davie. 
 Pooley & Luxton, of 21 Bastion Street, Victoria, Defendants' Solicitor. 
 
 To C. C. Femberton, Esq., 20 
 
 Plaintiff's Solicitor. 
 
 REPLY. 
 The Plaintiff says that . • 
 
 1 . He joins i.ssue. 
 
 2. As to the 2nd paragraph of the Statement of Defence, he says that the agree- 
 ment set forth in paragraph 3 of the Statement of Claim is the agreement of the Defendant 3° 
 Company. 
 
 3. As to the 3rd paragraph of the Statement of Defence, he says that the said John 
 Trutch was at the time of the execution of the agreement set forth in the 3rd paragraph 
 of the Statement of Claim the Land Commissioner of the Defendant Company, and agreed 
 to sell the said lands for the Defendant Company as such Land Commissioner, without 
 any reservations whatever. 
 
 4. As to paragraph 4 of the Statement of Defence he says that the agreement 
 entered into for the sale of the said lands is in writing, and i.< as set forth in the 3rd 4° 
 paragraph of the Statement of Claim, and the same was not entered into by mistake. 
 
 5. As to paragraph 4 of the Statement of Defence he says that the defendant Com- 
 pany ratified the agreement set forth in the 3rd paragraph of the Statement of Claim and 
 accepted all principal and interest that was due and payable thereunder. 
 
 6 As to paragraph 6 rf the Staten.ent of Defence he says that the lands mentioned 
 in the said agreement set forth in the 3rd paragraph of the Staten)ent of Claim form part 
 of Lot 6, Douglas District, and Lots 10 and 11 Range I, Cranberry District — having 
 
lO 
 
 been so found, by a survey made on the ground, of the said lands set forth in the said 
 agreement, which survey was accepted by the defendant Company 
 
 7. As to paragraph 7 of the Statement of Defence, he says that the agreement 
 between him and the defendant Company was reduced into writing, and is set forth in the 
 3rd para{rrnph of the Statement of Claim, and was made without any exceptions or reser- 
 vations as set forth in paragraph 8 of the Statement of Claim or any reservations whatever. 
 
 8. As to paragraph 8 of the Statement of Defence, he admits the same, and says 
 that time was not of the essence of the agreement. 
 
 9. As to paragraph 9 of the Statement of Defence, he says that the nonpayment 
 of the deferred payments at the times appointed was waived by the defendant Company, 
 and said payments were accepted, together with the accrued interest due thereon, on the 
 28th day of April, 1896, and further says that he r'id not abandon the land mentioned, 
 nor did he decline to complete his contract for the purchase there(jf 
 
 10. As to paragraph 10 of the Statement of Defence, he says that the only agree- 
 ment between him and the Defendant Company was that set forth in the 3rd paragraph 
 of the Statement of Claim, and the same is in writing that he never applied verbally to 
 be allowed to purcha.se the said land, nor did he agree with any agent of the Defendant ao 
 Company to purchase the said lands other than by the agreement set forth in the 3rd para- 
 graph of the Statement of Claim. 
 
 11. As to paragraph 1 1 of the Statement of Defence, he says that there has been 
 part performance which takes the agreement of sale of the said land out of the 4th Sec- 
 tion of the Statute of Frauds. 
 
 12. The agreement being in writing and within the Statute of Frauds, the Plaintiff 
 will object to the introduction of parol evidence to vary or alter the same. 
 
 13. The Plaintiff will object to any evidence of mistake in that the agreement is 30 
 plain in its terms and the Defendant Company cannot evade performance of it by the 
 simple statement of mistake. 
 
 Filed and delivered this 5th day of April, 1897, by C. C. Pemberton, of 35 Yates street, 
 Victoria, B. C, Solicitor for the Plaintiff. 
 
 To C HAS. E. Poole Y, EiSQ , 
 
 Solicitor for the Defendant Company. 
 
HE1 
 
 C< 
 
IN THE SUPREME COURT OP RHITISH COlUMfllA. 
 
 (Before the Honorable the Chief Justice.) 
 
 Victoria, 17th June, 1897, 1 1 a. m. 10 
 
 Hetween 
 
 FRANK VICKER HOHBS, 
 
 Plaintiff, 
 
 AND 
 
 THE ESQUIMALT AND NANAIMO RAILWAY COMl'ANY, 
 
 Defenda nt- 
 
 20 
 
 EVIDENCE AND PROCEEDINGS AT THE TRIAL. 
 
 30 
 
 Mr. McPhillips appearing on behalf of the Plaintiffs. 
 
 Mr. i'ooiey, Q. C, appearing on behalf of the Defendants. 
 
 FRANK VICKER HOBHS, the Plaintiff, being duly sworn, testified : 
 
 Examined by Mr. McPhillips . Q. Your name? A. Frank Vickcr Hobbs. 
 
 Q. And occupation? A. At present, storekeeper. 
 
 Q. What kind of a storekeeper, what business? A. Furniture. 
 
 Q. On Douglas street in the City of Victoria? A. On Douglas street, yes sir; 
 No. 135. 
 
 Q. Now. when did you first come to British Columbia? A. On the 19th of May, 4° 
 1889. 
 
 Q. Where did you come from? A. England. 
 
 Q. And upon your arrival - where did you first arrive? In what part of British 
 Columbia? A. I came right through to Victoria. 
 
 Q. And what did you engage in; any business? A. Labouring. 
 
 Q. Well how long did you pursue that in the City of Victoria? A. I am not ex- 
 actly sure, but four or five weeks. 
 
to 
 WOi 
 
 h,i\ 
 \va 
 
 A. 
 
 de( 
 do 
 
 lar 
 
 It; 
 
 ov 
 ov 
 ea 
 
 pi 
 
 Y 
 m 
 
O And later on went— A. And later on I went down the West Coast. I helped 
 to buTld that telegraph line which goes away down to Bonilla Point. I was out in the 
 woods .all summer 
 
 O. In connection with that work, you were out in the woods all summer of the 
 summer of 1889? A. Yes 
 
 Q. And after that what? A. We got through in November and wc returned to 
 Victoria? 
 
 O. What did you do in Victoria? We come to the question at issue: Did you 10 
 hwe anything to do with the E'quimalt and Nanaimo Railway Company? A. Yes. It 
 was my original intention in coming to this country to acquire land, 
 
 O. Ft was your original intention to acquire land when you came to this country? 
 A Yes. And in pursuance of that intention I had a conference with my brother, and I 
 decided to go up and look at a piece of land near Nanaimo which I had heard of while 
 down the West Coast. 
 
 Q. Was that the Ian 1 that you subsequently applied for? A, No, it is not the 
 land that 1 subsequently applied for. It is a piece in the near neighbourhood. But I ^^ 
 was told that the reservation was between the road and this piece of land. 
 Objected to as hearsay A. It would not be suitable. 
 
 The Court: You need not tell us about any conversations, or what caused you to do 
 it; just tell us what you did. A. 1 saw this piece of land. 
 
 The Court: Q. That is the land in dispute? A. Yes sir. 
 
 Mr. McPhillips: Q. Now will you just outline in what way you saw it and what 
 you did upon it, before you came to trer.t with the Defendr.ni Company? A. I went 
 over from Stark's place; that is in a westerly direction from Stark's. I had a good look 30 
 over the land, and found there were four swamps which would be fairly easy to drain , 
 easy to clear, and I thought it would suit me. I put in an initial post 
 
 Q. You sunk this post yourself did you? A. Yes. And 1 returned to Stark's 
 place and there made out the description. 
 Q. There maile out a description. 
 
 Upon request of Mr. McPhillips, Mr. Pooley poduced description of property mr.de 
 by witness. 
 
 Yes 
 
 Q. When you say you made out a description; did you write out a description? A. 
 
 40 
 
 Q. (The document handed witness) Was that it? A. That is not the one which I 
 made out there, but this a copy from that. 
 
 Q. Well, you never produced that over to the Defendant Company? A. No, I 
 gave that to the Defendant Company. 
 
 Q. I see. Well you did make out a description in writing? A. Yes. 
 
10 
 
 O And what did you do after that? A. I went to Mr. Shaw who was station 
 agent^at Nannimo. I had been told that he was actins as the Company's agent. And 1 
 told Mr. Shaw I understood he was the Company's agent and 1 w.shed to purchase a 
 piece of land up there; and he said " No, i am not the Company's agent here now. 
 Q. He said he was not the Company's agent now? A. Yes. 
 O Did he say who was? A. He referred me to Mr. John Trutch at the Com- 
 pany's office, corner of Hroughton and Government, strc :ts, Victoria. He told me he d>d 
 not sell any of the Company's land now. lO 
 
 Q. He said he did not sell any of the Company's lands? A Yes. 
 Q. Well, he was not an officer to deal with lands, well is that it? A. Not at that 
 time, that was what he told me. 
 
 Q. He could not sell any land? A. No, 
 
 O However, he referred you to Mr. John Trutch. What happened after that; did 
 you c^me down to Victoria? A. I came to Victoria; went up to the Company's office 
 and saw Mr. John Trutch. 
 
 Q. Do you remember what day that was? A. (^n the 28th of November, 1889. 20 
 O. Then you went to this office of the Defendant Company, corner of Hroughton 
 and Government streets? A. Yes. 
 
 Q. Who did you find there? A. John Trutch. 
 
 Q I think Mr. John Trutch is in the Court Room? A. Yes, I recognize Mr. 
 Trutch. I told him I wished to purchase a piece of land up there, and he sa.d, "Where is 
 it, what is it"; 1 showed him the description. 
 
 Q. You showed him a description? A. Yes. 
 
 g. That is the description you showed him (document handed witness)? A, Yes. 
 The document referred to was here put in by Mr. Mc Phillips, marked E.xhibit " H." 
 The Court : Q. You handed him that description? A. Yes. 
 Q. Which is a copy you had made up at Stark's? A. Yes. 
 
 The Court : That is produced by the Defendant Company. Mr. McPhillips : Yes, 
 my Lord. 
 
 Mr. McPhillip;,: Q. Is that your signature (indicating on Exhibit "H')? A. 
 That is my signature, yes 
 
 .^o 
 
 40 
 
 Q. 
 
 Q. 
 
 Q- 
 sec?" " 
 
 Q- 
 
 Stark's. 
 
 What did you do with this application? A. 1 left it with Mr. Trutch. 
 You produced it to Mr. Trutch, handed it to him? A. Yes. 
 What did he do with it? A. He read it and said. -Oh, up near Nanaimo. 1 
 Yes," I answered him. 
 What did you say in answer to that? A. And I told him yes, it was near 
 He then asked me was I gojng to pay for it then ; and I asked .f I would hav e 
 
tJ 
 
 20 
 
 to pay for it all then, and he told me. no, I cculd pay $120 then and the rest in one, two 
 and thr'^e years. 
 
 The Court: Q. Who said that? A. Mr- Trutch, my Lord. 
 
 Mr McPhillips : Q. Had he stated to you what amount per acre he xvould charge 
 for it? A. Three dollars per acre, yes. I had been told by Mr. Stark that it would cost 
 $3.00 per acre. 
 
 Q. But did Mr. Trutch tell you? A. Mr. Trutch told me that it was $3.00 
 
 10 
 an acre. 
 
 Q. That the price of the land was $3.00 an acre. A. Yes. 
 
 Q. Well, what happened after that ? A. Well, 1 paid him $120 and he gave me 
 a receipt. 
 
 The Court : Q. You paid him $120 then and tbc.e, did you? A. Yes sir, and 
 he gave me a receipt— with a receipt and the terms of the sale. 
 
 Mr. McPhillips: Q. Do you know who wrote that? A. Yes, Mr. John Trutch 
 wrote that in my presence. 
 
 Q. He handed you that (document handed to witness)? A. That is the document. 
 Q. The document now handed to you ; which you have always kept? Is that not 
 a fact? A. Yes. 
 
 Document re'-rred to was put in marked Exhibit " C." 
 Q. This Exhibit "C " you received from him. A. Yes. 
 Q. You .say that he wrote that in your presence? A. Yes. 
 O Did you see him write it? A. I saw him write it; yes. 
 Q. And sign it. A. Yes. 
 
 Q. And he handed it to you? A. Handed it to me. 
 
 Q. You say that has always been in your possession? A. That has alway been in 
 my possess-ion until I handed it to you. 
 
 Q Until you handed it to your Solicitors? A. 1 remember asking Mr. Trutch 
 that in the event of my not being able to get employed so as to get further money to meet 
 these payments on time-just then he said, " Oh, that won't matter much, the Company 
 wont be hard on you, they are not hard on the •••.'"••king men." 
 
 O. Well, is that all that took place between you and Mr. Trutch at that time? A. 
 ThatTs all that took place between me and Mr. Trutch at that time. 
 
 Q. As to the description. Now you handed him an amplication ; it differed some 
 from the description contained in this writing of the 28th of November? A. Yes, 
 slightly. 
 
 Q. Well, did he settle on the description— Mr. Trutch? A. Well, Mr. Trutch 
 wrote the description from nu' ilcscription, but I think Mr. Period inserted the district in 
 
 40 
 
which he supposed the land would be in. Of course I did not know what district it was 
 in. Tliis was my first visit to Nanaiino, and I was only up there a couple of days in all. 
 
 Q. You handed him the application which was in writing? A. Yes. 
 
 Q. He did not dissent from that ; he was agreeable to jjive you that land? A 
 Yes. 
 
 Q. He was agreeable that you should have that land .set forth in that application? 
 But he described it, or amplified it, whatever it may be, made it a little better, as he 
 tliought, perhaps, in the agreement? A. Yes, jq 
 
 O. That is his doing? A. That is his doing, yes. 
 
 Q. And you say that is all that took place between you and Mr. Trutch? A. 
 
 That 
 
 all 
 
 Q. Now after you got that agreement of the 28th of November, 1889, what did you 
 proceed to do in relation to this land? A. Within two days — I am not sure whether it 
 was the next day or the day after; I rather think it was the day after. Two days after 
 this I went to Nanaimo. 
 
 Q. You went to Nanaimo? A. Yes. Bought some tools, went out on the place, 20 
 got .some neighbors to assist me, and started to erect a hou.se or cabin — log cabin. 
 
 Q. Where? A. On this land. 
 
 Q. On this particular land? A. On this land which I had .seen and which I 
 described. 
 
 Q. And which you said you had put an initial post in? A. Yes. 
 
 Q. Now, speaking of this ridge, and the swamp that is referred to in that applica- 
 tion, and the post, where did you put your cabin? A. I put the cabin about i 50 or 200 
 yards from that post. ,y 
 
 The Court: Q, From whrrc you planted the initial post? A. Yes, my Lord. 
 
 Mr. McPhillips: Q. V\'ill you give the bearing from the post, north, south, east or 
 west? A. It wr.s in a southeast direction. 
 
 Q. In a south-east direction? A. As near as I can tell. 
 
 Q. Well, did you complete that building? A. No; before wc could complete it 
 a very heavy fall of snow came. It snowed until w c had three feet of snow there, and 
 we had no house to live in; we had no tent; we had to stop in a little booth of green 
 boughs; and it was too deep; we had to stop and finish the work, and I had to leave. .q 
 
 Q. Who were tho.se men who were with you at that time? A. Mr. Whittakcr, 
 who is living out in Nanaimo River Falls; a young man named Brady Stovall. We 
 prepared the logs, and when we were ready for raising — 
 
 Q. You mentioned Whittaker, Stovall and yourself? A. Yes. When we had the 
 logs ready for raising I got two other of my neighbors to come over and help us to raise it. 
 
 Q. Who were those? A. Ezra Bramley and Mr. Ralph Bramley; two brothers. 
 We got the cabin about five logs high, and at this time wc were working through about 
 two feet of snow and we had to quit. 
 
Was ill ,c) 
 
 13 
 Q. About five loRS hiRh ami you had to -luit? A. Yes. Our neighbors returned 
 home; I went up and stayed a little while with Mr, Whittakcr, 
 
 Q And then? A. The snow kept on, and it was not convenient to stay there with 
 him. so I went to Nanai.n.. and boarHe.l at the Grand Hotel there, I stayed there the 
 balance of the winter. 
 
 Q. That would be about what month that you went to Nanaimo? A, I think it 
 was in January, 
 
 Q. And when you went on the property you think was when? A. 
 November. And I was also on the place on Christmas Day. 
 
 Q. Christma.sDay of 1889? A. 1889, yes sir. I went from Stark's over. 
 Q. That would be after you had desisted from building? A Yes, There had 
 come "a frost and there was a crust on the snow, and I walked over there for a hunt. I 
 remember the circumstance well. 
 
 Q. Then, go on. When was the next time you did any work, or was on the pro- 
 perty? A. I went nut on the place again, 1 believe it was in April of 1890; went out ^^ 
 for my tool.s, 
 
 Q. Your tools had been left in the building that you had been erecting? A. Yes. 
 Q. Any one with you? A. Yes, a Mr. Murray— Mr. Allan Murray, 
 Q. Allan Murray? A. Yes. 
 
 Q. What did you do then? A. We had entered into a contract to clear .some land 
 in Nanaimo and we went out for the tools. Took the tools back and worked there all 
 summer. 
 
 Q. Well, now, you did not do an>' more work on the cabin at that time? A, No, 
 O. Well then when did you again return to the land? A. In the ball. 
 Q. Fall of 1890? A. Yes, I think October. 
 
 Q. What did you do then? A, I started to build another cabin in another place. 
 Q. In another place. You determined on abandoning this one? A. Yes it was 
 on low land and I thought I saw a more suitable site, a more pleasant outlook. 
 
 Q, The location of the ne.xt o c, considering the first one's position where was the 
 second one? A, In a southerlj' direction. 
 
 Q. In a southerly direction from the first one you had started to erect? A. Yes. 4° 
 It might be a point or two cast. 
 
 Q. And how far away. A. Maybe about 300 yards. I have never measured this 
 distance. 
 
 Q. You think in a southerly direction? A. A southerly direction? 
 O. How far would that be from the initial post which you have spoken of? A. 
 Still further from the initial post, 
 
 O. That much farther? A. That much farther. 
 
to 
 
 14 
 
 O. Well then, what did ym, do there? A, 1 In.ilt a house with the hHp of \tr, 
 Murray and the SMrk's; and stayed there— 
 
 Q. You completed this house, did you? A. Ves. 
 Q. What size dimensions was it? A It was I S liy 14. 
 
 y. That is the second house? A. Yes. I think that is the measure, if I rcmem- 
 her right. 
 
 Q. 18 by 14? A. 18 by 14. 
 O. And you completed this? A. Yes. 
 O, And after having completed it what did you do? A. I remained there most of 
 the winter. Mr. Murray returned to town. 
 
 (J. That would be about all the winter of 1890 and 1891? A. 189O and 1891 
 Q. Then after that? A. I was there till the spring, and then 1 went to Nanaimo. 
 Q. You were there till the spring of 1 891? A Yes. 
 
 O Did you do any work on the land at all? A. I done a little slashing, clearing. 
 Startc^d to build a chim.iey to n.y cabin, which I found ciuite a big job; took lots of time; 20 
 only got it up part way then. 
 
 Q Did you do anything else; plant anything or do anything of that kind? A. No; 
 1 did not plant anything there at that time. 1 had planted a few bushes when 1 was there 
 before; a few fruit bushes there. 
 
 Q. i-ruit bushes? A. Yes. 
 
 Q. This takf you up to the spring of 1S91 ; what did you do then? A. Went to 
 Nanaimo and got work. 
 
 Q. And when did you next return to the land? A. 1 was up occasionally. 3" 
 
 y. You went to Nanaimo in the spring and got work, and returned to the pre- 
 emption occa.sionally? A. Yes. 
 
 Q. Now then, that took you up to when; sometime in the spring of 1891? A. 1 
 worked in Nanaimo all the summer of 1891 and a good part of the winter of 1 89 1, 1892. 
 And 1 was on the place again at intervals in the spring of 1892. 
 
 Q. Well then, what did you after that; in the spring of 1892, what did you do? 
 A. I left the land and again worked a little while in Nanaimo; 1 got a little work there 
 and then I went to Alberni— walked to Alberni. '^° 
 
 Q. That was in 1892? A. Yes, 1892. And from Alberni 1 went back 
 again to Nanaimo for a few weeks, and then to Victoria. 
 Q. Then to Victoria? A. Yes. 
 
 Q. Now did you place yourself in communication with the Defendant Company, do 
 you remember, i- April, 1892? A. Yes; I remember just prior to going to Alberni I 
 thought I would l.ke to survey the land; thought I would like to get the land surveyed; 
 and I wrrte a letter. * 
 
«5 
 
 Q. What did you do? A I wrote to the Company. 
 
 At the request of Mr Mcl'hillips Mr I'oolcy produced letter, 4th April, 1892, from 
 i'laintiff to Defendant i.lettcr handed to witness), dated 4th April, 1S92. A. That is the 
 letter. 
 
 Q You rccofjnizc this as bcinj; the letter? A. Yes. 
 
 The letter was put in by Mr. Mc Phillips, marked Kxhibit " I)." 
 
 O. Now you speak there about — you say, " I do not know where the nearest corner 
 post is"; what do you mean by that? A. Hy tha» 1 mean that I did not know of any 10 
 surveyed land nearer than Stark's to survey from 
 
 Q. That was not your post that you were speaking of there? A. Corner post — 
 
 yes. 
 ( ». 
 
 Stark's. 
 
 " I can only survey from m>- post "; is that your post? A. Yes. 
 
 The onl>- post you knew of any surveyed land — the nearest one was what? A. 
 
 Q, Now in answer to that, ilid you get a letter? A. 1 got reply from the Com- 
 pniy's land agent at that time, Mr Gore, telling me that I could employ any Provincial '° 
 Land Surveyor. 
 
 Q. (Letter handed to witness). A. That is the letter. 
 
 Said letter was put by Mr. .VIcPhillips, marked Exhibit " E." 
 
 Q. (Reading Exhibit '■ E."i You got that letter, you say? A. Yes. 
 
 Q. And there «as an cnclrjsure in it? A. Yes; there was an enclosure, a plan. 
 
 Q, I hand you this 'plan handed to witness). A. That is the enclosure; I recog- 
 nize it. ^O 
 Same was put in marked Exhibit " F." 
 
 Q. Mr. Gore said in his letter that, as near as he could tell, the i)art coloured red 
 covered your land. Do you see the portion coloured red? A. Yes. 
 
 Q. Did it describe your land? A. .\o; not alt the land I required. 
 
 Q. It did not describe all the land you required? A. It did not describe the por 
 tion of land upon which I built my house. 
 
 The Court : Q. This description w as not accurate? A. No, I don't say it was 
 not accurate; I sa)- it did not tiescribethe land which I actually wanted and on which 1 "^ 
 built my house. 
 
 Mr. Mc Phillips: Q. Or where you had placed your initial post? A. No; that 
 post would not be on that land. 
 
 Q. That is, it did not cover your application, did it? A. No. 
 
 Q. That you left with the Deendant Company? A. No; it did not. 
 
 The Court : Q. It did not cover thcland embraced in your application? A Yes 
 
i6 
 
 Mr McPhiUips: Q. Is the land embraced in the application f.c same as John 
 Trutch's receipt; there is no variance in the two? A. There is no actual vanance ,n 
 
 them. 
 
 Q. There is no -\ctual variance? 
 
 Mr. Pooley : That is going to be a matter of evidence. 
 
 Q. Well now, that red portion covered a portion of the land? A. Covered the 
 southerly portion. 
 
 Q. The southerly portion, but did not cover the major portion to the north? A. lo 
 No it did not. 
 
 Q.. The larger portion. What did you do in reference to that after having received 
 that tracing? A. This was just prior to my going to Alberni. 
 
 O You received this letter and tracing jjst prior to >our going to Alberni? A 
 Yes ~And when I had an idea that I might enter into business at Albern. I gave up the 
 idea for the tin-.c. After that 1 came to Victoria and I did not survey. But on coming 
 to Victoria I went to the Land Commissioner's Office. 
 
 The Court: Q. You went to Alberni: how long did you stop there before coming 2o 
 to Victoria? A. I thinU about a month my Lord. 
 
 Q. And then you came to Victoria? A. To Nanaimo and then from Nanaimo to 
 Victoria. 
 
 Q That was in 1892? A. Yes, mv Lord. I did not get the land surveyed. So 
 after getting back to Victoria I called at the E. & N. Railway Co's, office and bad an in- 
 ter\iew with Mr Gore the Company's Land Commissioner. 
 
 Mr McPhillips: Q. In reference to what? A In reference tc d'.e discrepancy 
 between the land which he had markx-d red on that plan and the land which I really 30 
 wanted. 
 
 O. You saw Mr. Gore in the office of the Company, did you? A. Yes. 
 O What did you say to him? A. 1 told him that between the times of writing 
 that letter in which I got this plan " • reply-between the ti, .es of my writing that letter 
 and going to Victoria I had found certain posts there, certain corner posts marked the 
 Victoria Lumber Company's land. Also I had seen a post marked Anthony Anderson. 
 That gave me an idea as to just where on the plan my land would come. So I explamed 
 to Mr. Gore. He showed me th plan and I could show him just where I wanted this^^ 
 land. 
 
 O He showed you a plan in the office, did he? A. Ye. knowing the Lumber 
 Comp~anys posts and A.ulcrson's post-; marked on it. So on that plan I could sb" v Mr. 
 Gore where my land was. 
 
 Q. And did you show him? A. I did 
 
 Q. Well what took place when you did that? A. There was nothing that I can 
 remember of any importance that took place at that time. 
 
17 
 
 
 lO 
 
 
 Q. Did he make anj- statement about it? A. Not other t1 an they were pleased 
 to locate it nearer than th^y had; they thought it was down there farther to the south the 
 land that I wanted; and he said '' When you survey you know you can go either way as 
 long as you take an even portion — \ou mu^t join to some even portion. 
 
 Q. That is whnt they always kept insisting on, that there should be no broken por- 
 tions? A. Yes. 
 
 Q. That is what the Coi.ipan>- was particular about? A. They were particular 
 there should be no fractional portions. 
 
 The Court: Q. Thi y said when you survej'ed you could take either way so long 
 as >ou did not leave any fractioi ? A- Yes. I remember Mr. Gore saying that I could go 
 cither way a half a .section; there were three quarter sections, and I could take cither one 
 of the three. In reality the most northerly of the three was the ore I wanted. 
 
 Mr. McFhilliris: Q. There ivas no dispute tlien about your being enttled to the 
 land j-ou pointc'J out to him? A. No dispute at all. 
 
 Q. And the Company did not say they were unable to convey it to >'ou or anything 
 of that kind? A. No, nothing was said of that character. 30 
 
 Q. That was \v hen you came down to Victoria in 1892? What did you proceed to 
 do then? To embark in business? A. I embarked in business which I am now engaged 
 in. At that time I wiis kciping store on Fort street; I have since moved down to Doug- 
 las, where i have been ever since. 
 
 Q. Now what about this particular land? What posit on did you leave it in? At 
 least you had that agreement with the Defe dant Company; and what about ;t? A. 
 Well I knew the land was mine; 1 had bought and made a first payment on it and as I \\ as 
 in business and had but a very limited capital 1 could not afford to finish paying for it at 
 • h It time, I preferred to use .iiy money in my business and pay the interest that it states. -50 
 
 Q. You knew the rate of interest that it carried? A, Yes. A low rate of interest 
 i i'lwcr rate of interest than I could borrow money on. 
 
 O. Yes; the legal rate of interest? A. Yes, si:> per cent. 
 
 J. And that is the way you viewed the matter between )-ou and the Defcnilant? 
 A. Yes; ni) money was worth more to me than six per cent. 
 
 Q. Now after that, I tiiink in 1893, you received some notices from the Defendant 
 Comp:in. .ihout paying something that was owing by you under that agreement of the 28th 
 of November, 1889? A, I did. 40 
 
 Q. (Paper handed to witness). \'ou received that notice? A. Yes. 
 
 Same was put in marked Exhibit "G." 
 
 Q. You got this notice, then, Kxhibit "G." A. Yes. 
 
 Q. Where did you gr.L it? It is ad dres.se d to Krank Vicker Ilobbs, Mright District, 
 and then there is Victoria, H. C, pencilled under it? A. I was in Victoria. 
 
 Q. You got that notice in any case? A. Yes. 
 
i8 
 Q. Then >ou got another notice (paper handed to svitness)? A. Yes I got another 
 in February, 1894. 
 
 Q. This is it, February 15th, 1894. 
 The document was put in marked Exhibit " H." 
 Q. You got this notice also, Exhibit " H "? A. Yes. 
 
 Q. What did you do in reference to those ..otices? A. No; I could not afford to 
 pay for the land, and I took no action in regard to the notices. ^^ 
 
 Q At the time you received them you could not afford to put up the balance and 
 you did not take any notice of them? A. No; I looked up my agreement and I found 
 that 1 ran no risk of losing the land. 
 
 Q. That was your notion then? A. Yes; ttmt the interest was going on and that I 
 could not afford to pay it. I could better afford to pay the interest. 
 
 Q. Then you had in mind, I suppose, that statement that Mr. Trutch had made to 
 you, too? A. Yes; that the Company would not be hard on me. ' 
 
 ' Q. And relying on that you felt satisfied that the Company would not do anything? ^^ 
 A. Quite so. 
 
 Q. That was up to the 15th of November, 1894. Do you remember when you 
 next did anything in reference to this propert}'? A. Yes; in 1895. 
 
 Q What did you do then? A. 1 went down to the Company's office, on Store 
 street, and tendered payment for the balance and interest and desired to complete the 
 purchase. 
 
 g. Now tell the Court who >ou saw down at the Company's office. They were 
 then on Store street? A. Yes. ^^ 
 
 g. Do you remember what month in 1895? A. It was in 1895 and it was in the 
 fall, I think in November; I am not quite sure of that, 
 g At any rate in the fall of 1895? A. Yes. 
 {). .\nd you found who there? A. Mr. Solly. 
 
 g. The now Land Commissioner, and the then Land Commissioner of the Defend- 
 ant Company? A. Yes. 
 
 g. Was he known to you? A. No. 
 
 O You made yonrself known to him? A. I made myself known to him, I told 4° 
 him that my name was Hobbs and that 1 wished to complete the purcha.se of a piece of 
 land which I had agreed to buy from the Defendant Company near Nananno and Mr. 
 Solly told me that I was late, rather— 
 
 g That you were late—? A. Over that. > 
 
 g. Did he look up any papers or anything? A. I don't remember his looking up 
 any papers at the first part of our interview. Later he referred to a schedule which he 
 had there with regard to notices— a schedule of notices he had sent out. 
 
19 
 
 Q. At the same interview? A. Yes. He said that mj interest in that land had 
 lapsed. I made him some remark about the money which I hid paid on it, and he said 
 that he considered that had forfeited to the company. 1 wanted to know under what 
 clause in my ajfreement. I had my agreement with me at the time and I referred to it 
 and said 1 could not see any reason there why my intere.st in the land should lapse or why 
 my money should be forfeited. He asked me to alloAf him to look at it a minute and I 
 did so. He took it and looked at it and said, " I will go and .sec Mr, Dnnsmuir on 
 this subject," or some words to that effect. At any rate he retired with the agreement in 
 his possession. And after the lapse of a few minutes he came into the office again. jq 
 
 A. Yes. 
 
 He took \our agreement? 
 
 1 hat is the same one that you produce here? 
 
 A. Yes, the same one that 1 
 
 Q, 
 produced, 
 
 Q. E.x'nibit " C." And he wjiit to sec Mr. Munsmuir, yoj assume? A. Yes. 
 
 Q. That would be Mr, James Dunsmuir, was it? A. That is what I supposed. 
 On his re-entering the office he said no he had instructions from the Company to accept 
 no more payments on that land. I remarked that I thought that it was a mean waj- to 
 serve me, now that the land was likely to be of value. And I also told Mr. Solly that I 
 thought 1 could compel the Company to accept my money and grant me a conveyance — 
 or accept my money. 
 
 Q. When >'ou said you thought the land would be of value, what did you mean by 
 that? A. I had heard just previous to this that coal had been discovered in the near 
 neighbourhood. 
 
 Q. In the near neighbourhood? A. Yes; the E. & N. E.\tension Mine had been 
 discovered in the summer jirevious. I had been told this by Mr. Hodgson. 
 
 Q. When you say " value," that is relative value is it? A. Well, if there wa« a 
 coal mine started there, and made a mining comnmnity started there, certainK- my land 
 would be ver)' valuable, 
 
 y, Ihat was your view of it? A. Yes; that was m\- view of it. 
 
 Q. Not that there was coal on your land? A. 1 did not know that there was coal 
 on my land; but I knew that five acre lots within three or four miles of Xanaimo were 
 worth several hundred dollars an acre, and if there was a mining community started uo 
 around my place, why naturally my land would certainly be of more value. iq 
 
 Q. That is what you had in your n)ind. A. And Mr Solly said, " Well, if you have 
 any money to waste in law I guess we will meet you " 
 
 Q Is that all that took place between you and Mr, Solly that day? A. That is 
 all that took place. 1 left the office then. 
 
 Q. And I think you consulted solicitors after that? A. Yes; soon after that I con- 
 sulted the firm of Messrs. Hunter & Duff — Hunter, Duff & Oliver, 1 think it is — to pro- 
 ceed and try and establish my rights. 
 
♦ 20 
 
 Mr. McPhillips: There is certain corresi ontlcncc, which I do not think is material 
 in my case, which sprung between Hunter & Duff and the Defendant Company. I am 
 hnrdly in a jjosition to put it in; at the same time my learned friend is cognizant of it, 
 and I am: 
 
 Tlie Court: The witness probably knows what was the result of this correspondence 
 or whether there was any result. He can say that, and you can ])utin the correspondence 
 afterwards if necessary. 
 
 Q. The result of your consulting with Hunter & Duff was what? A. I understand 
 the firm of Hunter & Duff wrote to the Defendant Company. 
 
 The Court: Q. Did you see anything more of the Defendant Comjiany in con.se- 
 cjuence of the correspondence? That is what we want? A. Yes. 
 
 Mr. Pooley: Q. What is the witness looking at? A. I am looking at notes as to 
 dates. 
 
 Q. Were those notes of memoranda made at the time, that jnu are looking at? A. 
 No they were not. 
 
 The notes referred to were here handed to Mr. Poolev . 20 
 
 Mr. Pooley: I have no objection to his looking at it to refresh his memory. 
 
 Mr. McPhillips; Q. They are merely dates? A. They are merely dates of the 
 transactions as near as I can get at it. And I wish to refresh my memory as to dates. . 
 Mr. .Solly calle 1 at my store to see me. 
 
 O. The result of the correspondence w.is that Mr. Solly called at your store? A. 
 Yes. 
 
 Q. When? A. 1 think it was in the minth of February of 1896; and he told me -jq 
 that he would like me to come down to the offic; and have a talk over th's affair and my 
 land, he thought the Company would now gr.int me a conveyance of it, I was rather 
 busy in the store at the time and had but very little time to speak to Mr. Solly. And I 
 told him all right, what did they want? Well, he said, come down to the office, and have 
 a talk, we would rather deal with you than through a firm of solicitors. 
 
 Q. Yes? A. I had almost forgotten that at my preliminary cxamit-ation about 
 that interview. I did go down with Mr. Solly. I went down to the office shortly after- 
 ward.s. 
 
 Q, At the time you were examined you had forgotten; is that it? A. 1 had for- 
 gotten; I thought I had not gone down; but I remember; on hearing Mr. Sollv's evidence 
 it refreshed my memory, and I remember I did go down. 
 
 Q. You heard Mr. Solly give his evidence? A. Yes; and 1 recollect now I went 
 clown and I had an interview with Mr. Solly, and he showed me a plan, and told me that 
 in surveying their coal lands in the neighborhood the surveyors had located my cabin, and 
 the) knew exactly the lines of my land now. I asked Mr. Solly and he gave me a 
 tracing of that for my guidance in surveying— he promised to do so and eventually did. 
 
 40 
 
21 
 
 lO 
 
 Q. When did he do it; do yoi renicmlH;r under wliat circumstances? A. He loft 
 it ;it in)' store 
 
 y. I show you that (tracln(i handed to witness). A. That is the tracing. 
 
 Q, Tiiat was left for you? A. That was left with me, yes. 
 
 The tracing was put in, marked FIxhibit " I." 
 
 Q. That is the exhibit which is now marked " 1 "? A. Yes. 
 
 Q. And 1 sec that has on it "Lot 6, F. V. Hobhs' Cabin," on a square traced on it? 
 A. Yes, he explained it to me that that ■ quare mark there traced on it showed the posi- 
 tion of the cabin. 
 
 (j. And that tied on to the Victoria Lumber Company's Timber Limit? A. Yes. 
 
 Q. Well, you think that was in February, was it, or — A. I am not quite sure 
 of the dates. 
 
 Q. Somewhere about February, 1896? A. I think it was 1896; February or 
 March, I am nr,> exactly sure. 
 
 Q. Well, what was the position of the matter between you and the Company at that 2" 
 time? How did matters stand according to Mr. Solly, and any position taken? A. At 
 that time they were willing to grant me a conveyance of the land. 
 
 Q. He told you previously that he thought the Company was willing to convey to 
 you? A. Yes. 
 
 Q. There was no dispute standing then? A, No dispute whatever then. I also 
 got a letter from the Company giving me two months to complete the purchase in. 
 
 Q. You got a letter from the Company dated March 2nd, 1896 (handed to witness)? 
 A. Ye.s. 
 
 Q. This is the letter you received? A. That is the letter I received. 
 
 .Same was put in evidence marked Exhibit " J." 
 
 Q. In pursuance of that letter of March 2nd, 1896, what did you do? A I pro- 
 ceeded to get the land surveyed. 
 
 Q. And who did you employ? A. I employed Mr. Priest. 
 
 Q. Did you do that immediately or soon after? A. Soon after; it w • early in the 
 month of April. 
 
 Q. Early in the month of April you employed .Mr. Priest. He is one of the gen- 
 tlemen who had been previously suggested? A. Yes. 
 
 Q. In Mr. Gore's letter to be satisfactory? A. Yes. 
 
 Q. Then you employed Mr. Prie.st, of where? A. Nanaimo. 
 
 Q. Provincial Land Surveyor? A. Provincial Land Surveyor. 
 
 Q. Did you employ him personally? A. I went up to see him; I employed him 
 and Mr. Charley Holmes and another man, whose name I forget, who was living near 
 my place at thj time. I also saw Mr. Murray; he went there with me. 
 
 30 
 
33 
 
 lO 
 
 (J Mr. Priest, Mr Murray, and whom? A. Charley Holmes. 
 
 Q. Where did you jjo? A. I went to Nanaiiiio and from there to the land, 
 
 y. You went to Nanaimo and employed Mr. I'riest? A. I went to Nanaimo and 
 got Mr, Murray and went to the land, and then went to Nanaimo and got Mr. I'riest. 
 
 y. .And having got Mr. I'r'est, what was done? A. He surveyed the land, 
 
 (J. The land was surveyed? A. Yes. I handed Mr I'riest that tracing which 
 Mr. Solly had left at the store for mc; and shewed him my original paper. 
 
 Q. Of the 28th of Novcmlwr, 1889? A Of the 28th of November, 1889. 
 
 Q. K.xhibit " C ■', this writing here (indicating)? A. Yes. 
 
 I'he Court: Q. And tlu last plan you got? A. Tiic last plan I got. 1 am not 
 quite sure whether I had the one that is coloured red by Mr. Gore or not. 
 
 Mr. McPhillii»: Q. That is K.\hibit " F "? A. I might have had that; I am not 
 sure whether I handed ihut to hini or not; but I know Mr. I'r ■ st had the other. 
 
 Q. The one .Mt. Solly had given you? A. Yes. 
 
 y. Now did you .accompany Mr. Priest when he niiide the survc) ? A Yes; I 20 
 assisted to blaze the survey. 
 
 y. Do you know what point he .started from? A. He started from one of the 
 Lumber Company's posts. 
 
 y. And described in the land in a lilnck; is not that it? A. Yes. 
 
 O. Forty chains s(|uare; is that it? A. Forty chains square; that is it. 
 
 y. And where was this house of yours, in connection with that survey? A. It 
 was very near the centre of the place. 
 
 y. Vory near the centre of the place; this is the finished house? A. Yes. It 
 might be a little north of the centic; that is in my opinion; 1 could not say, of course. 
 
 y. That was consistent with your intention, you say? A. Yes; the survey took in 
 all four of these swamps, which I originally wanted. 
 
 y. It was consistent with your original application? A. Yes; strictly in accordance. 
 
 Q. Then you did not survey any different land than what you applied for? A. No, 
 but the survey proved to me that 1 60 acres was rather larger than I thought it was and 
 took in more land than I thought I would get. 
 
 30 
 
 Q. It took in more land than you thought you would get? A. 
 than I thought I would get 
 
 Took in more land 
 
 40 
 
 Q. Now, after that was done, I think you advised the Company of its being done? A 
 I did. A few days after, my Lord, I asked them had they received the field notes and 
 were they satisfied. 
 
 Mr. McPhillips: We will get the letter itself, the letter of the loth of April. 
 
 Mr. I'ooley produced the letter. 
 
Q. You wrote them a letter. Now I hand you a letter (handed to witness). A. Vc, 
 1 recognize the letter; that is the one. 
 
 The letter was put in marked Exhibit •' K." 
 
 Q That is the letter you sent? A. That is the letter. 
 
 Q Now you mention there Cranberry and Doufelas District. We will get that 
 evidence more particularly fron. the Surveyor, but as a fact it overlaps ,n Cranberry D.s- 
 trict u little? A. Yes. 
 
 Q. And it has been c.'led by the Defendant Company, Lot 6. Douglas D.str.ct? lo 
 
 A. Yes. 
 
 Q. Although >t comes into the other district and is a dividing line, runs right through 
 >our property, between the two districts? A. Yes. 
 
 (). You >?ot a letter then in reply to that, did you not? A. 1 did. 
 
 Q. Letter dated I ith of April, 1896, .handed to witness); that is the letter you re- 
 ceived? A. Yjs. 
 
 Put in evidence by Mr. McPhiUips, marked Exhibit " L ". ^o 
 
 Q. Now after getting that I think you got another communication from the Railway 
 Company? A. 1 did; stating that the time for payment was nearly up. 
 
 g. Is that it. A. Yes, that is it. 
 
 Q. You got the letter dated 27th April, 1896. 
 
 Put in marked Exhibit " M. ' 
 
 Q. You received that Exhibit • M " and wha. .lid > ou do after that? A The 
 very next day 1 sent a marked bank cheque to the Company. 
 
 The Court: y. You sent a marked cheque for the amount? A. Yt^ my Lord 
 and a letter. 
 
 g. A marked cheque upon what bank? A. The Bank of British Columbia. 
 
 g. Payable to whom? A. The E. & N. Ry Co., I believe. 
 
 At request of Mr. McPhillips Mr. Pooley produced documents. 
 
 g. You sent a letter and a marked cheque. Nov are these the ones ^handed to 
 
 30 
 
 witness) 
 
 Yes. 
 
 Letter put in marked Exhibit " N •; dated 28th April, .896: Cheque of .same date, 
 put in marked Exhibit "O." 
 
 g. Now, after sending that, did you receive my acknowledgment of having sent it? 
 A. Yes, I received a receipt. , 
 
 g. Did >-ou receive a letter (letter handed witness)? You got a letter enclosing a 
 receipt. Is that the letter ? A. Yes, that is the letter. 
 
 g. And that is the receipt ? A. That is the receipt. 
 
 40 
 
L( 
 Exhib 
 
 Q 
 
 receive 
 
 Q 
 Q 
 
 to (hai 
 L 
 F 
 
 { 
 
 ( 
 Yes, 
 1 beli 
 
 is the 
 
 the 1 
 
 Yes. 
 or ei 
 
 tliat 
 that 
 
 lane 
 
24 
 
 Letter put in marked Exhibit "P," dated April 29th, 1896: Receipt put in marked 
 Exliibit " Q,' same date. 
 
 Q. Well, what next transpired? About a week after I had a deed sent me. I 
 received a deed. 
 
 O. A letter and a deed? A. A letter and a deed, and a form of receipt. 
 
 O. And a form of receipt. Now is that the letter and form of receipt that you refer 
 to (handed to witness)? A. Yes. 
 
 Letter put in marked Exhibit " R," dated May 8th, 1896. lO 
 
 Receipt put in marked Exhibit " 5." 
 
 At request of Mr. McFhillips, Mr. Pooley produced form of deed. 
 
 Q. There was a deed in that? A. Ye? 
 
 Q. I hand you this deed to see whethrr v,"' recognize it (handed to witness)? A. 
 Yes, 1 believe that is the deed; I made no mark upon it by which I can recognize it, but 
 1 believe it to be the deed. 
 
 Same was put in marked Exhibit ''T." 
 
 Court here adjourned for an hour. 
 
 At 2:15 p. m. Court met pursuant to adjournment. 
 
 Direct examination of the witness, Hobbs, continued by Mr. McFhillips: 
 
 Q. Now you thought you recognized this Exhibit •' T, \^ hich is the deed? A. Yes. 
 
 O. Well, looking at it, lookin-: at the plan whi "ii its face (handed to witness); 
 
 is that square marked red the description of the land yoi. 1 ■ 1- A. \ cs 
 
 Q. That is the description of the land you claim? A I'hat is the description of 
 
 20 
 
 the land I ^iaim. 
 
 Q. That is called Lot 6, Douglas District. A. Yes sir. 
 
 Q. I see cabin marked on this, here? A. Yes. 
 
 y. Is that the cabin )'ou have spoken of? A. Yes. 
 
 Q. That is your house that you have spoken of. A. Yes. 
 
 Q. That is partly in Cranberry District and partly in Douglas? A. Yes. 
 
 Q. And, as you say, is the land that you claim of the Defendant Com|)an\ ? 
 Yes. That is the land that I went on, and built on, and the only land that I ev( t 
 or endeavoured to claim from the Defendant Company. 
 
 y. Of course you were on the survey with Mr. Priest? A. Yes. 
 
 Q. The land purported to be conveyed to you in this deed of the 1st of May, 1896, 
 that is Exhibit ' T," that is the same land as Mr. Priest defined? A. Is the same land 
 that Mr. I'ricst— 
 
 30 
 
 A. 
 ,ed40 
 
 Q. The sauK land that you assisted Mr. Priest to define? A. 
 land that 1 originally wanted. 
 
 Yes. And the same 
 
:}-,:•■! 
 
25 
 
 Q. Well, do you find that ridge and swamp and post? A. Yes. 
 
 Q. And Herkeley's Creek? A. Yes. 
 
 Q. Now did you read this deed over when you received it? A. I did, yes. 
 
 Q. I see it is marked on the corner " L. H. Solly, Land Commissioner." After 
 having read it over, what did you do? A. I showed it t3 my Solicitors ^-nd instructed 
 them to return it. 
 
 Q. The result of it was what? A. I returned it to the Company. 
 
 Q. Hy letter, did you not? A. Yes. 
 
 At the request of Mr, McPhillips, Mr. Pooley produced the letter, dated the 9th of 
 May, 1896, same was hn.nded to witness. 
 
 The Witness: Yes, that is the letter. 
 
 The letter was put in evidence by Mr. McPhillips, marked Exhibit " U." 
 
 Q (Reading E.vhibit " U ") That was the letter you wrote? A. That was the 
 letter 1 wrote when I returned the deed. 
 
 y. And you returned this deed, E.vhibit " T," with it? A. Yes. 
 
 Q. Now that was on the 9th of May, 1896. A. I believe it was 
 
 y. Well, did any of the officers of the Defendant Company come to you after that, 
 or did you ha\e any communication with them after that, or for some time? A. Not for 
 some time. I did not that I can remember. 
 
 Q. Not for some time? A No. The next communication 1 can remember was 
 when the Defendant Company sent me a cheque. 
 
 Q. You got a letter from them did you, from the Defend.mt Company? A. I re- 
 member them sending me a cheque. 
 
 Q. Do you know where that money is? A. I returned the moneys — 
 
 Q. Was there a letter with it? A Yes. I left the letter with Messrs. Hunter & 
 Duff, when I opened the letter. 
 
 Mr. McPhillips: Have you a copy of that letter Mr. Pooley? I have not the 
 original one; 1 don't know as there is any objection to producing that. Letter of the 3rd 
 of September. 
 
 Q. You don't know wh(.Te that letter is now? A. No, 
 
 y. Have you asked Hunter & Duft" for it. A. No. 
 
 y. I mean to say they gave you all the papers they had, or were supposed to do so, 
 at any rate; were they? You demanded the papers from them, did you not? Your Soli- 
 citors got the papers from Hunter & Duff. A. My Solicitor got all the papers. 
 
 The Court: You received the papers from your Solicitors, and that letter was not 
 among them? A. Yes, 1 have not seen the letter since. 
 
 y. You changed your solicitors? A. Yes, my Lord. 
 
 10 
 
 20 
 
 30 
 
 40 
 
agra] 
 objei 
 
26 
 
 Mr. Pooley produced copy of the letter. 
 
 Mr, McPhillips: Q. Well, you got a letter. Just read that (handed to witness). 
 A. Yes; I think that is a true copy of that letter to the best of my recollection. 
 
 Said copy of letter of September 3rd, 1896, was put in by Mr McPhillips, marked 
 Exhibit •' V." 
 
 At the request of Mr. McPhillip.,, Mr. Pooley produced cheque referred to in Ex- 
 hibit "V." 
 
 Q. (Handed to witne.ss) Is that the cheque you returned? A. Yes; I think that jq 
 is the cheque. 
 
 Put in by Mr. McPhillips, marked Exhibit "W." 
 
 Q. Well, you returned this chei|ue? A. I returned that cheejue; yes. 
 
 Q. Do you remember whether you returned it or your solicitors? A My solici- 
 tors returned it; I instructed my solicitors. 
 
 y. That would be Hunter & Duff? Ye^. 
 
 Q. Well, now, you say that you read that deed through. What was youi objec- 
 tion to the deed? A. 1 objected to the reservations The Company reserved the right '^° 
 to the coal, coal oil, ores, mines, minerals and quarries, rights of way for railway and road, 
 and timber; and when 1 bought I set quite a value on the timber that was on the land; 
 had no idea but what 1 was entitled to ail the timber antl all that was on or under the 
 land. 
 
 You had no idea r f anv reservations? A. 1 had no idea of anv reservations at 
 
 all. 
 
 
 Were there an)' notul^d to you? A. No, at no time. 
 Nothing calling )our attention to reservations? A. No. 
 
 30 
 
 (2- At any rate \ our .igreement is in writing? A. Yes; and at the time of getting the 
 agreement there were no reservations mentioned. 
 
 Q. Nothing mentioned to you? A. No. 
 
 y. C)r stated to you? A. Nothing shown or spoken of anything. 
 
 y. Well, had yru any knowledge of any reservations? A, Well, not before pur- 
 chasing I had not. ! had only lately arrived in the country and had very little oppor- 
 tunity to learn of it myhow. 1 was only in the city of Victoria a few weeks before I *+ 
 went out into the woods, and directly on coming in I made this purchase, and 1 knew 
 nothing about the Company's land or any reservations. 
 
 The Court: y. How long had you been here before you went out in the country, 
 did you say? A. A few weeks; I am not exactly sure how many now; I keep no diary 
 
 Mr. McPhillips: y. Now the reservations contained in the deed are set out in par- 
 agraph 8 of the .Statement of Claim. Then that was )our objection? A. That was my 
 objection; yes. The piece of land as set out in the deed is the piece that I wanted. 
 
27 
 
 O. In that respect you are o',;jectii)(4 to that; in fact you desire the Defendant Com- 
 |)any to coiney you the land described in the deed? A. Yes. 
 
 Q. Hut of course without reservations? A. Rut of course without reservations. 
 
 Q. As contained in your agreement; and notliing spoken to you about it? A. I 
 knew nothing of it when buying it. 
 
 Q. Now after that, what did you do? What was the first thing you did after that, 
 nturning that deed and chetjue? What next did you have to do with the Railway Com- 
 pany? A. There was nothing done until after I had instructed Messrs. Hunter & Duff ,q 
 
 O. No. You say they were acting for you then of course. Hut after that I think 
 \ou went down to the railway office did you not, with Mi. I'emberton? A, Yes, I went 
 with Mr. I'embertpn. 
 
 Q. Do you remember when that was? A. Late in December 
 
 y. In December of '96? A. Yes of '96; 22nd or 23rd, I think. 
 
 y. My learned friend does not put me to strict ])roof on this point. We tendered a 
 deed for execution to the Def n Lint Comi)any. A. Tbit was the purpose that Mr. 
 I'emberton and I went down to the office of the Defendant Company. ao 
 
 Q. Th.-it was in December? A. Yes. 
 
 Q. And tendered a deed without reservations? A. 
 that I was willing to accept. 
 
 y. That was a deed to you of the fee simple? A 
 refused to sign that deed. 
 
 y. Did you see Mr. James Dimsmuir? A. I did. 
 
 y. Do you remember what took place; what was said? A 
 
 Without reservations, a deed 
 ^'cs. Mr. James Dunsmuir 
 
 30 
 
 Mr. Pcmberton tendered 
 him the deed and wished his signature to it; and Mr. Dunsmuir refused to sign it; he said 
 they woukl issue no deeds other than deeds such as they generally 'ssucd and with the 
 reservations. These may not be his exact words, but the purjjort of what he said as near 
 as I can remember. ■ • 
 
 y. And at that time Mr. I'emberton handed him a deed for execution? A. Yes. 
 
 y. Which was a deed of this land described in Exhibit " T?" A. The same land, 
 
 y. Without reservations? A. Without reservations, yes. 
 
 The Court: Have you got that deed. >q 
 
 Mr. McPhillips; Yes, Your Lordship. There was a clerical error in this deed, they 
 did not mention the words " heirs and assigns;" but as a matter of fact my learned friend 
 has agreed with the other solicitors that he will admit this tender and I do not understand 
 his objecting on that score. 
 
 The Court: It was not any greater interest? 
 
 Mr. McPhillips: No, it was a less interest; it would have been a life interest in Mr. 
 Hobbs, if they had executed it. There would be no succession. However, nothing turns 
 on tiiat, I suppose, I understand from my learned friend. 
 
 Ji:^^ 
 
28 
 
 Tlu'dccd was put in by Mr. Mcl'liillips, marked Exliibit " X." 
 
 Q That was the form of deed tendered to Mr. James Uunsmuir h> Mr I'eiiibcrton, 
 
 in your presence? A. i believe so 
 
 y. And you have told us what he said in answer? Now, that was all that tooi< 
 
 place relative to your contract with the Defendant Compan)', is it not? A. No. 
 
 y. Prior to the commencement of liti^^ation? A. It was. 
 
 y. Then you commenced this action and there was an order made by Mr. Justice 
 Walkem. Just about prior to that order made by Mr. Justice Walkem did you go upon 
 that property? A. I did, yes. 
 
 y. What did you find? A. 1 found the Defendant Company had constructed a 
 slope just outside my line, but the slope ran under my land, and tliey were then mining 
 and getting out coal from under my land. 
 
 y. Did you go down that slope? A. I did. It was just outside my land, but 
 running under my land. 
 
 y. How far running under your land? A. Well, I went under about 1 50 yards, j,, 
 as near as I can judge, and I diil not go to the end of the slope. 
 
 y. And what were the indic.itions then? A. I understood that they were in about 
 200 yards 
 
 y. And what was being done there. A, They were mining and e.Ntending the 
 slope. 
 
 y. What was being taken out? A Coal. 
 
 The Court; y. Ihey were mining and taking out coal? A- Yes, my Lord. 
 There were two 01 three white men and some Chinamen. 
 
 y. Well, was there anyone in occupation of your premises, your land, on the sur- 
 face? A. Yes, ticre was some (!liinamen living in the cab n. 
 
 y. Living in )our completed cabin? A. Yes, and there were several new build- 
 ings erected there, log buildings. 
 
 Mr. McPhillips: y. Who were the Chinamen working for and who connected 
 with? A. I understood they were working for the Company, working at the slope. 
 
 y. Well, did you know that they were? A. Well, I don't know, only from their "^ 
 imperfect Knglish in talking to them. 
 
 The Court: y. You understood from them that they were working on the slope? 
 A. Yes, my Lord, I understood from them. 
 
 y Did you say in the employ of the Defendant Company there? A. I saw a man 
 named — I know him as Sandy Clark, and I understood that he w:is working for the Com- 
 pany there as contractor or ioreman and there were two other white men working with 
 him there. 
 
1. 
 
 They 
 they V" 
 
 at difir( 
 
 g 
 
 were V 
 ihe Isl 
 
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 land tl 
 
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 the lai 
 
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 take u 
 
 take u 
 lip thf 
 
 before 
 
 <; 
 
 and y( 
 
39 
 
 y. Well, now, was work (ioinn on while you were there? A. Not actual mining. 
 They were pum[)inti. I understo^KJ that the w.itcr had ^jained on them rather fast; and 
 the)' were then pumping out the slope. 
 
 C!kos.s-K.\a.minei) nv Mr. I'ooi.kv: 
 Q, I think you told us Mr. Iloblis, th.it you came here in May, 1889? A. Ves. 
 Q. And you came from England? A. Ves. 
 
 Q. What had been your occupation before you came here? A. Oh, I had worked ^^ 
 at different works; sometimes at gas works and sometimes working on a farm. 
 
 y. In gas works in England? A. Yes. 
 
 Q. Gas works sometimes and on farms? A. Ves. 1 was raised on a fruit farm. 
 
 Q. You wer ■ raised on a fruit farm? A. Ves sir. 
 
 Q. And after working in the country for some little time and having heard whilst you 
 were working on the line down here on Honilla Point, that there were lands to be taken up on 
 ihc Island Railway, you made up your mind to come up here and take some? A Ves. 
 
 Q. The result was that you went to Nanaimo and went out and took up a jiiece of 20 
 land there? A. Ves. 
 
 Q. You did not go to the Company s office to enquire before you went and took up 
 the land? A. No sir. 
 
 Q. From whom then did yon get the information about taking up this land? .\. 
 From a man who was working for the same contractor as mine on the telegraph line. 
 
 Q. On the telegraph line. A. Yes. 
 
 Q. And from what he told you, you went up and took up the land. A. Ves. 
 The Court: (J. A man working on the telegraph lini,, you say? A. Yes. 
 Mr. Poolcy: Q. Did he tell you that he hi.<d taken up land himself? A. No sir. 
 Q. He did not. .And that is the only information you had before you went to 
 take up the bnd? A. Yes, that is the only information I had of that. 
 Q. You did not read the Act of Parliament? A. No sir. 
 
 Q. But you are quite sure that is the only information >'ou had when you went to 
 take up the land? A. Ves, that is the only information I had. 
 
 Q. You told us in your examination here just now that when you went up to take 4° 
 up that land you put in an initial post? A. Yes. 
 
 Q. Who told you to put in the initial post? A. Mr. Stark advised me. 
 
 Q. Then you did see someone besides this man on the telegraph line? A. Not 
 before going up to see the land. 
 
 Q Not before going up to see the land? A. No sir. 
 
 Q. I ask you before you took up the land? That was the question I asked you, 
 and you told me you took it up on the representations of this man on the telegraph line. 
 
A. 
 
 1 
 
 is nr 
 
 ( 
 
 
 
 the 1 
 
 '4 
 
 sir: 1 
 
 I 
 
 
 1 
 
 Ves. 
 
 1 
 
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30 
 
 I now ask you how it came that ) ou put in an initial post? A. I was advised to put in 
 the post to be used as a starting point. 
 
 Q. And you were advised that by Mr. Stark? A. Yes. 
 
 Q. By Mr. Stark? That is another person \-ou saw, then? Mr. Stark had taken 
 up land beside there some time? A. Yes, some distance from there, some years pre- 
 viously. 
 
 Q. Did Mr. Stark tell you that you did not get the mineral there? A. Nc. sir. 
 
 Q Do you remember Mr. Stovall? A- I do, well. ^° 
 
 O. Did he tell you in Mr. Stovall's presence that the Railway Company did not 
 dispose of the coal? A. No. 
 
 Q. YoM are quite sure of this? A- I am quite sure 
 
 Q. You are quite sure o{ that: that Mr. Stark did not at this time tell you, in the 
 presence of Mr. Stovall, that the Railway Cor oany reserved the coal on their lands? A, 
 Yes, sir; I am ([uiiv. sure. 
 
 O Or the minerals? A. Quite sure; I never heard it; I never heard anything at 
 
 20 
 all about reservations, either coal or minerals 
 
 Q. How was it, then, that you fixed on this pioro of land to take up? A . He- 
 cause there was more open land there than in an>- other place that I know of in the neigh- 
 bor i:ood, or that Mr. Stark knew of in the neighbourhood. 
 
 Q. In your examination before you said you kne- that land .vas very valuable, and 
 the only good piece of ranching land m the neighbourhood there? A. Yes, sir; that is the 
 reason I took it up, becau'^c of these su amps easily cleared out. 
 
 Q. How large are tliose swamps? A. I ne\cr measured them; I can.iot tell you 
 e.\actl)'. 
 
 Q. Did you ever go oii to the swamps to trj- them? A. Yes. 
 
 Q. And you put a pole down about 30 feet in the principal swamp, the largest one? 
 A, I never did; I never tried it. 
 
 Q. You don't know much about it? A. I have walked over it. 
 
 Q It is a peat iwanp? A. There is peat in some places, but a good part of it 
 
 is not peat. 
 
 y. You told us chat you went out and you started to build a house? A. Yes. _^o 
 Q. And when you started to buikl your house it was in thv; fail of 1889? .'1. Yes; 
 
 the latter part of November or early ir. December. 
 
 (J. Well, you did not take y« ur !a-,d up until the 28th of November? A. No, 
 sir; I went up right away afterwards. 
 
 y. Then )ou were up there in the liegi.ming of December, probably? .X. Yes. 
 
 O. And I think \ ou told us you had someone there helping )ou at the time? A. 
 Yes. 
 
 30 
 
lO 
 
 31 
 
 Q. Who had you assisting you at that time? A. Mr. W'h.ttakcr, Mr. Stovall, 
 afterwards the Messrs. Bramley. 
 
 Q That is building the first house? A. Yes, sir. 
 
 Q. Well, now, you did not do much with that house; you only i)ut up a few logs? 
 A. Yes. 
 
 1 
 
 Q. And then you left? A. Had to leave it. 
 
 Q. Then \ou went to Nanaimo. Then when you came hack again you say you 
 started to build a second house? A. Yes. 
 
 O. And then you had whom with you? A Mr. Murray— 
 
 Q. And who else? A. Mr. Stark and his son Abe Stark— Abraham I believe his 
 name is. 
 
 Q. Did you finish that house? .\. Yes, nearly. 
 
 Q. Did you ever quite finish it? A. Never quite finished it, no. 
 
 Q. Did you ever put any windows in? A. Yes I did. 
 
 Q. Did you take them away again? A. No. 
 
 Q. Who did? A. Someone has since; I did not take them away. 
 
 Q. Did you ever hang a door there? A, Yes. 
 
 Q. Is that door there now? A. That same doer is there now; it is taken off. 
 
 Q. Hut the windows are not there? A. No. 
 
 O. Did you ever complete the chimney? A. Not ([uite. 
 
 Q. You told us you planted some bushes there? A. Yes. 
 
 O. Where did you plant them. Away to the north of the fir.st cabin. 3 
 
 y. Ho'" many did you plant? A. Oh there might have been seven or eight. 
 
 Q. What did you have, raspberry canes or what? A. Currants and gooseberries. 
 
 O Seven or cig'it; that is the e.\tent of the gardening you did there? A. Seven 
 or eight the extent of the g.^!dening I did there, yes. 
 
 Q You sry you left Nanaimo aid came down here in 1892? A Yes. 
 
 () And never have been back there aince. A. I have frequently, but not to live 
 
 40 
 teere. 
 
 (). You liave not been back there to look at it? A. No. 
 
 Q. To see if thi' currant bushes were growing? .A No, I have not used the 
 grounds since, and the undergrowth came up and smothered them 
 
 O. What did you go back fo? A. Several times for a hunt. 
 
 ( ). Vou ne\ er went hack to see whether the initial post was there? .\. Yes, I did 
 
 see it. 
 
Q- 
 
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 required 
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 Q- 
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 business 
 cloned tl 
 
 Q 
 
 Q. 
 
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 Q 
 
 quite a 
 
 y- 
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 O. 
 
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32 
 
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 Q, When you put it in what mark did you put on it? A. I don't remember that 
 I marked it at all. 
 
 Q. Hut you art [uite sure that you did put one in? A, Yes I am. 
 
 Q. You knew enough about— you had heard enough about the Und to know that it 
 required an initial post to be put in? A. I didn't know what it was called— I didn't 
 know it was called an initial post at that time. 
 
 Q. You havesa-.d that you did put in an initial post? A. I did, yes. 
 
 0. ^'ou did not know at that time it was an initial post. A. I did not know it ic 
 was called an initial post. 
 
 y. What size post did you put in? A. Oh, it was not very big, I suppose if it 
 was practically square it might S(iuare two or three inches, 
 
 Q. You say you came down to Victoria in 1892 and here you remained and went in 
 business. A. Yes. 
 
 y. And you practically abandoned the land, didn't you? A. No sir, never aban 
 doned the land. 
 
 Q. Did you try to sell it? A. No, I never really tried to sell it. 
 
 Q, You never really tried to sell it? A. No sir; I had applications to purchase it, 
 but I made no very serious efforts to sell it. 
 
 Q. You stated just now to Mr. McFhillips that when you bought that land you set 
 ([uitc a value on the timber on it? A. Yes. 
 
 y. What class of timber is it? A. There is some good cedar there, 
 
 y. Where does it .stand; in the swamps? A. Around the edge of the swamps. 
 
 y. Is there any rock on the land? A. There is considerable rock on the land. ^q 
 
 y. There is considerable rock on the land? A. Yes 
 
 O Is that covered by good trees? A. No; there is a few good firs, but not many, 
 about the rocky portions of it. 
 
 O. Then you bought it as valuable for the few trees growing around the swamps? 
 A. No sir, I bought it for the swamps. 
 
 O. You bought it for the swamps, yes; for the swamp land for cultivation, although 
 you did not know what number of acres is in it? A. Yes. 
 
 ). You said you were surprised at the size of the 160 acre piece? A. Yes. 
 
 ' , Did you get any other swamp that you did not intend to get? A. Well, it 
 went )' '"ore than I supposed it would. 
 
 y. You got more than you expected to get? A. Yes, I was afraid it would not 
 take in the last of the four. 
 
 y. Now, you have stated to Mr. Mcl'hillips here that nothing was ever said to you 
 about the reservations of the Company' on the land? A. Not prior to my purchase. 
 
 40 
 
A. 
 
33 
 
 O. Not prior to your purchase. How soon after your purchase tlid you know there 
 were reservations there? A I heard of the Company imposinfr reservations in the early 
 winter or spring of 1890; I should say in the early spring of 1890. 
 
 Q, In the winter or early spring of 1890? A. Yes sir. 
 
 Q. Did you tell us when we examined you before the Registrar that you knew it in 
 February, 1890. A. Yes, I believe that is the month. 
 
 Q. Not in the winter of 1890— that is February 189c? A. It was February 1890. 
 
 O. That would be the winter of 1889, wouldn't it? A. 1890, February 1890; 'o 
 February is a winter month. 
 
 O. That was the first time you heard that the Company had reserved its minerals? 
 A. Yes. 
 
 Q, And you heard that in Nanaimo? A. I heard that in Nanaimo', at the Grand 
 Hotel. 
 
 Q. At the Grand Hotel. I think you gave me the name of the party who told you? 
 A. Yes. 
 
 Q. Well, Mr. Walter Miles? A. Walter Miles, yes. 
 
 Q. Proprietor of what? A. At that time he was proprietor of the Grand Hotel. 
 He had a piece of land in the near neighbourhood of mine and he was talking about the 
 value of the ranches and he said he had the advantage over me becau.se if there was any 
 coal there, he had his coal; and 1 said " Haven't I," and he said " No"; and I said " Why 
 not, there is nothing in my papers to prevent it," and he said, "You will see by and b>', 
 because the Company reserves the coal." 
 
 Q. Then after hearing that did you never mention it to the Company to ask them 
 what the meaning of it was? A. No. 3° 
 
 Q You never thought it worth while to mention to the Company? A. No. 
 
 Q. Hut you left the land when you came to Victoria in 1892, and remained here in 
 business? Now in the fall, or September, 1895, do you remember a Mr. Ephraim Hodgson 
 coming to see you? A Vcs 1 do, well. 
 
 Q. Did Mr. Hodgson come to you and ask you if you would like to sell this land? 
 A. Yes. 
 
 Q. In September, 1895, he caii.e and asked you if )-ou wanted to sell, did he not?^o 
 A. Yes. 
 
 Q. Did you tell him that you had left the place and did not intend to go back. A. 
 No sir. 
 
 y. You did not? A. No 1 did not. 
 
 O. Did you tell him that you would like to sell it, but you had your brother, who was 
 interested with you, and you would have to see him? A Mr. Hodg.son wanted to pur- 
 chase and asked me if I wo-ild 
 
34 
 
 Q. Did you say you would like to sell, but you had youi- brother interested with 
 you and you would have to sec him? A. No; 1 did not say I would like to sell, but 1 
 told him I did not care about selling anyhow, but my brother was interested in it with me 
 and 1 would have to see him. 
 
 Q. You asked him to call the next day? A. Yes. 
 
 y. Well, now, did Mr. Ephraim Hodgson return to see you next day with his bro- 
 ther? A. Yes; I believe he did. 
 
 Q. Did you make this remark to him then in the presence of his brother: " I don't lo 
 know as I want to sell, as it is all paid for"? A. No; 1 did not make that remark, be- 
 cause I knew it was not paid for. 
 
 y. You did not make that remark, and Mr. Hodgson turn around to you and say, 
 " No; you have not; you have only paid S120"? A. I never said it was all |)aid for. 
 
 Q. You never said it was all paid for? A. No, sir. 
 
 Q. Then Mr. Hodgson did not turn around to you and say to you, " No. you 
 have only paid $120"? A. He knew how much I had paid. 
 
 Q. Did he say that to you? A. I dont remember his saying. 2o 
 
 Q. You don't remember his saying that? A. No. 
 
 Q You did not say to him then " That is all right, I have not?" A. 1 don't re- 
 member saying that. I certainly never told him that it was all paid for. 
 
 Q. Did you tell him that you would take $200? A. No I told him 1 would sell 
 it to him for a$i,cxXD. 
 
 Q. You did not then say to him " I will take $200? A. No. 
 
 y. And you were to get the $ 1 20 back from the Company? A. No. 
 
 y. You did not say that? A. No. He offered me $140; he said he wanted to 
 buy it for a sheep ranch. 
 
 The Court: y. He offered how much, $140? A. Yes. 
 
 Mr. Pooley: Did Mr. Hodgson then say to you " I will give a $100?" A. Yes, I 
 think he did; but he finally sprung to $140. 
 
 y. And did you say to him then "The best 1 will do is $150?" A. No, I never 
 offered it for $150. 
 
 y. You never offered it? A. Not for $150. 4° 
 
 y. Did you then produce to him the receipt which you held from Mr. Trutch? A. 
 I don't remember whether I ever showed him that or not. 
 
 y. And you don't know then of course if he read it? A. No, 1 don't know, I 
 don't remember. 
 
 y. And you don't know if he tokl j-ou after reading the receipt that he would not 
 give yo u 50 cents for the land, as the receipt did not describe the land on which your 
 cabin stood. .A. I know that after I told him that I had not completed the purchase 
 
35 
 that he -said he w-nikl not t,'ivc mc that for it. lie sai.l lie uouki not t;iv.- me anything;; 
 lie said what offers lie had made were off. 
 
 y. After rendin- the receipt did he tell you he would not t;ive you fifty cents for 
 the land because the land described in that receipt was not the land on which the cal.in 
 was? A. I ilnn't remember his reading' the rccciiit. 
 
 y. \'ou don't remember his rcadinv; the receipt, therefore you don't remember his 
 saying that? A. No 1 don't. 
 
 y. No, that is it. Did you make this remark to him: " Vou did pretty well on lo 
 findiiifr the coal out there "? A. Ves, I asked him where it was. 
 
 (). Did yoi tell him '• What a fool I was"— did you say to him " What a fool I am, 
 I knew of coal being there for years"? A. Yes I made some such remark 
 
 O. Vou made some such nmark? A. Yes. 
 
 O. Did he ask you where il was? A. He asked mc where it was 
 
 y. Did you tell him " it is right on my jilace? A. No, 1 did not. 
 
 y You did not? .A. No; it is over half a mile from m>- place. ^o 
 
 y. You did not tell him then that you knew there was a seam of coal riijht on your 
 place? A . No, I did not 
 
 y. You did not? A. No; 1 did not know it was there. 
 
 y. Did you say to him, " If you will give me $ioo I will go ami show you where it 
 is?" A 1 did, yes. 
 
 ( ). And he s 1 he would give it to you if the coal wa- ;\ny good? A. I don't re- 
 mcmlierhis saying so, no; 1 think I would have likely taken him up if he had. 
 
 The Court: y. You offered to show him where it was for $iOO A. Yes, my 3" 
 l.ord. 
 
 Mr. Foolcy: Q. Did you then say to him. "Look here, you had better give me 
 $150 for the land, and I will go right down to the office and have it transferred to you 
 .now?" A. No, 1 never offered it for any such money 
 
 y. Vou did not say, -'You had better give me $1 50 for the land and I will go right 
 down to the office and have it transferred to you now? ' A. No, I never did. 
 
 y. Did you tell Mr. Hodgson that if the coal was worked out there it would be a 
 ;4ood place for a milk ranch? A. Ves. 
 
 y. \'ou did. Did you state also that if the coal was worked out there that your 
 land would be very valuable indeed; you would be able to build 100 cabins on it? A 1 
 don't remember s.iying that. 
 
 y. I'"or the use of the miners? A. I don't remember saying that 
 
 y. \'ou don't remember saying that? A. No. 
 
 The Court: O. It would be worth what for cabins for miners? 
 
36 
 
 Mr. !'f)oley: Q. ' at it would be valuable Ir.nd bcciiu^e wc could put up loo 
 cabins up for the miners? A. You could put 10,000 for that matter. 
 
 g. I did not ask you 10,000, but only 100 Ju-.t answer the (lucstions I give you. 
 Do you know a man called Charles Holmes? A. Yes. 
 
 y. He was out surveyinj; the land with \'ou, wasn t he? A. Yes. 
 
 O. Did you tell him that you had the ri^dit to the cod on your land? A. Yes. 
 
 y. And he asked you how that was? A. N'es. 
 
 y. And you told him— you produced a paper from your pocket and said, " That 
 is going to give me the coal "? A Yes, 
 The Court: O. When was this? 
 
 Mr. I'ooley; When the land was being surveyeil. And that you had got authority 
 for saying so? A I ilon't remember sayin^^ 1 had got authorit)- for saying so. 
 
 Q. You don't remember that' A. .\o; 1 don't remember that. 
 
 y. Hut >oM showed him the i)apcr and said. •' This will give it to mo." Did you 
 tell him that the papers had no reservations and that you had got authorit)' for saying 20 
 that it would give \-ou the coal? A. 1 told him thit the papers hail no reservations. 
 
 y. Ami that you had got authority for saying that you would have the coal? A. I 
 don't remember saying that. 
 
 O. Well, this was after you saw j'our solicitors, wasn't it? A. Yes. 
 y. Do )ou think it is |)ossiblc >ou m;i\- have made that remark to him? A. It is 
 possible 1 might have but I don't remember it, 
 
 y. It is possible )-ou might have, but >ou don't remember it? .A. I don't remem- 
 ber that. 30 
 
 y. Now, having got t'nis receipt from .Mr. Trutch, you went up and built your two 
 houses, and came down to Victoria. Then on the 4th of Ajiril, 1892, you applied by let- 
 ter to the office stating that you wished to have your land surveyed, didn't you? A. Yes. 
 
 y. A letter of the 4th of April, 1892? A. 1 believe that is the date, yes, 4th of 
 April, 1892. 
 
 y. And you asked them who uere the surveyors in the district? A. Yes. 
 Q. Ard they gave you the name of Priest? .\. Of Priest and Fry. 
 
 y. Now you have told us that you did not have that land surveyed then becau.se 
 you went off to Alberni? A. \'es. 
 
 O. And you did not think it worth while to bother with it? A. I did not say I 
 did not think it was worth while to bother with it. 
 
 y. Is that what you meant? A. No. 
 
 y. Why did you leave it then, A. Because 1 had notions of using my money 
 otherwise. 
 
 40 
 
lo 
 
 20 
 
 be 
 
 O. Iiecause you had notiotr^ of using ,\oiir money otherwise. Thcrefoic you difl 
 not want to pay the sur\ eyor's fees? A. I did not want to get it surveyed ana complete 
 the purchase then. 
 
 (J. You did not want to get it surveyed and complete the purchase at that time. 
 Then you received a plan from Mr. Gnre telling' '^u what he thought v as th(^ position of 
 >(iur land? A. Yes. 
 
 O, You got him that plan on the 6tli of April, i;;o2. \Vh\' didn't you at once 
 write hack to Mr. Gore and tel' him that the land that hj had mentioned on that survey 
 was not the land that you rei|uircd? A. Hecause I was uncertain of my i.ture move 
 ments just then; 1 tl.ought if I was coming to Victoria shortly I might go and explain to 
 Mr. (lore. 
 
 (J. It was not because you tho'gju of giving up the land? No, sir. 
 
 O. Not then at all? The tiinber was too valuable? A. Yes; I thought so. 
 
 (}. The currant bushes were growing? A. I am afraid they were not. 
 
 Q. The currant bushes were not dead then? A. I suppose they were. 
 
 Q. Dead \n 1S92? A. Yes. 
 
 O. And >'ou never replaced thera? A. I nc\ cr rep'ace i thcin. 
 
 O. What ha\e you done to the land to imiirove it? A. Not a groat deal 
 gan working in w inter and going off in other places m the summer 
 
 Q. Still those bushes grew when you were not there. However, \ou did not go 
 there, and you took no other steps until you came to \'ictoria. Now, what time did )ou 
 come to Victoria? A. 1 think it was late in the summer. . 
 
 O. I-,ite in the summer of iSgJ? A. 1 think so; I am not quite sure of the date. 
 
 (J, You are quite sure of .' it? A. 1 am not i]uite sure of the date; it was in 1.S92 
 
 Q. When you came back to Victoria what did you do? Did you go into business 
 at once? A. Not at once; I went to Tacoma and was away 3 or 4 days, and uhen I 
 came back I w ent into business. 
 
 O. Why tlidn't you go and see about this plan as soon as yoi: got to Victoria? A 
 I went to the office soon after I came hack to X'ietoria. 
 
 Q. After )ou bad gone into busincs-i or before? .\. 1 am not sure now whether 
 it was before or after. Hut 1 know I called on .Mr. tlore and told him I had found some ^o 
 of the Company's posts and explained the position of my [/lace 
 
 CJ. Did you tell Mr. (iore th.it the land that he had sent you was not the land that 
 \ou had built \'our house on? A. \'es. 
 
 y. \'oii told him that? Did \ou ask him to change it? A No; I told him. 
 "This is thv.' land I want,' pointing it out on the plan. 
 
 O. \"ou said, " I'his is the land 1 w.int, ' pointing to the plan. Hut do \ou know 
 that that lan<l was not the same land that was mentioncl in ) our application of the 28th 
 
 y> 
 
A. 
 
38 
 
 of November, 1889? A. I tliii not know at that time; I did not know the exact posi- 
 tion .'ccording to the conioass. 
 
 (J. Vou did not kntw the exact position at that time. Do > ou know now that the 
 land mentioned in your application of the 28th of November, 1S89, is not the land which 
 has been piven to you by the Company, on which your cabin stands. A. I do know now 
 that it is not strictly in accordance with that description; but I know that that description 
 was a good and sufificient description at that time, w'ihout any more earmarks given to it. 
 
 Q. Well, however your opinion may be, it docs not describe the same lands on which 
 your cabin now stands? A No, it does not. 
 
 O. It does not? A That is it. 
 
 The Court: O. It is not the same as where your cabin !■ on? A. Xo, my Lord, 
 the land mentioned in the description, if it be.irs an extremely literal obser\ ancc it does 
 not describe the land on which my cabin is built. 
 
 The Court: Q. The description in the Company's deed does not strictly include 
 your cabin? A. Xo, my Lord, that is not it. 
 
 Mr. Pooley: No, my Lord; the t|uestion 1 asked )'ou — Does the description in your 2(j 
 application that is dated the 28th of November describe the same land as that on which 
 \our cabin now stands. The description in the receipt of the 28th of November; not 
 the application. 
 
 Ihc Court: (J. Xou does that or does it not embrace your cabin? A- It does 
 not embrace the cabii\, but it describes that land on which my cabin is 
 
 Mr. I'ooley: Q: It describes the land on which the cabin Is. A. It describes the 
 land on which the cabin is. 
 
 The Court: Q. If it describes it it em'races it doesn't it? A. No. my Lord; the ,,> 
 description says two miles west of Stark's; and if the line is drawn due west of Stark's it 
 uould not take in m>- land; but my land is about two miles In a westerly direction from 
 Mr. Stark's all the same. It is not due west but it is westerly; 
 
 Mr. I'ooley: Q. Mr. Solly came up to \-our place of business in 1895, didn't he? 
 A. I don't remember him in 1895 
 
 Q. You don't rcniembcr 1895? A Yes, yes, soon after my tendering paj-ment. 
 
 Q. Soon after you tendered payment? A Yes. 
 
 y. Mr. Solly came down to you and sa« you at your |)lace of business. A, Yes. 40 
 
 n. And told you or dkl he tell you that the Company would give you the land 
 uliich you wanted? A Yes. 
 
 y. And he told you did he not that the land which vou wanted wa> not the land 
 mentioned in your application? A \'es. 
 
 (_). 1 mean m the receipt. 
 
 The Court: (J. It was not that described in the receipt or tlie a|)|)lication? A. 
 Fhey are s)'non\-mous, my Lord; they both mean the same piece of land. 
 
39 
 
 (,). Well, Mr. Solly told you the Company would gwi: yon the land you wanted; 
 but tire K-iiid you wanted was not that descrii.ed in the receipt or application; and the re 
 ceipt and application arc identical? A Yes, my Lord. 
 
 Q. Afterwards Mr. Solly wrote you a letter tellin^r you that the Company would 
 ^ive you the land on your paying- for it? A. Yes, sir. 
 
 (). And that as soon as you sent the money a deed would he prepared and for- 
 warded? 
 
 Mr. Pooley. O. Now, you have mentioned here your interview with Mr. 1 rutch jo 
 when you first went to see him? A. Yes. 
 
 O. Now, did Mr. Trutch tell \()U t'cn that the minerals of the Company were re- 
 served? A. No. 
 
 Q. \'ou say that Mr. Trutch told that \-ou were to pay the $120 down and the bal- 
 ance in 3 or 4 years? A. In one, two and three years. 
 
 O. But the statement you made to the Judge when ihe question wa.s asked you, in 
 three or four years, and 1 say that does not conform to the receipt; the receipt is one, two 
 and three years? A. One, two and three >ears. 20 
 
 The Court; O. Did he say, one. two and three years? A. Yes; he said one, two 
 and three years. 
 
 Mr I'ooley: O. An^l then Mr Trutch wrote out the re ceipt which you sa\- you 
 have had in \-our possession ever since? .\. Yes. 
 
 O. Until you handed it to your solicitors? A ^'es. 
 
 Q. You say >ou went into the office and saw Mr. Solly on or about the i6th of 
 February, I think, in i S96? A. \es, I think it was the month of February, 1896, 
 
 Q And you asked him then about --was it on that occasion or was it in November 3° 
 that the conversation took place about paying for the land? A. November, 1895. 
 
 ( ). And then you let Mr. Solly look at \our receipt? A. Yes, he asked me to 
 look at it and I allowed him. 
 
 Q. \nu have had that receipt photographed, ha\en't >-ou? A. Yes. 
 
 Q. When did you iiave it photographed? A. It was just about the time of the 
 commencement of the litigation 
 
 Q The receipt became valuable then? A. Yes, I wanted to keep a duplicate in 40 
 ca.se anything might ha|)pen to it. 
 
 y. And >ou did not consider it of nuich \ alue before this litigation commenced? 
 A. Oh yes, 1 diil; it was my onl) evidence of having purchased the land. 
 
 Hut you did not consider it of sufficient \alue to have it photographed? A No. 
 
 . . You did not know until then that you had the coal? A. It was always in my 
 possession until then, and then it w;ls going into other people's possession and I wished to 
 ha\e a copj- for ni)- own use. 
 
 (). 
 
 (). 
 
lO 
 
 40 
 
 (J. Did y<iu have it photo^'raphcd hcforr you na.idcd it to tlu' solicitors or vva^ it 
 jihotoj^raphed afterwards? A. i ain not quite sure of the date of it. 
 
 Q. Did you yet it photographedi" A, 1 ditl. 
 
 n. Where did you get it photograpiiLii? A At the Imperial Studio Ejres. 
 
 O. Where, in Victoria? A. In Victoria 
 
 O. And you don't know the date it was done? A. 1 am not sure of the date it 
 was done. 
 
 O. I5ut still this receipt all at once became so \aluahle th.it it was worth photo- 
 i^rajihing? A. Yes, My. Lord, my idea for gcttint; that photographed was not so much 
 for the \ .due of the receipt a.s the fact that I wanted a copy for my own use after I had 
 let it go. 
 
 O. Couldn't you make a copy of it? A. Yes, hut I wished to show an exact copy, 
 and a photograph of :i camera does not lie. 
 
 Q. Now, I .isked \-ou the (|ucstion the other day and I asU you the f[uestion now; 
 ilid you ever see a conveyance of the Railwav C"oni|)any of any of their lands up there 
 before you took up this land? .\. No, I don t remc'mhcr ever seeing a conveyance of 20 
 the C"om])an>'s until I had this one .sent me from the company. 
 
 O. Until v\ 'ten A. L'ntil this one was sent r.ie from the Company. 
 
 O, Do you sucar that you never saw a conveyance before }ou took up this land? 
 A. Yes. 
 
 Q. \"ou do? A. I do swear that I ilon't remember ever having seen one until I 
 saw that. 
 
 Q. You have sworn positively you had not seen one? A. Yes. ?o 
 
 (_>. You are positive of it? You received < crtain notices from Mr. Solly to pay up 
 the amount due, did you not? A. \'es. 
 
 IJ. Ami when you cdled at Mr. .Solly's office in November, 1895, and wanted to go 
 on with the pur<hase of the land, did Mr. Solly call yt .ir attention to the fact that he had 
 sent these notices Id you? A. \'es 
 
 y. And did you tell him that >ou had never received them? A. 
 her telling him that 
 
 do not rcmem 
 
 Q. Did Mr. Solly tell ymi th.it vou must have received them, because they never 
 were returned through the jKist? A, I remember his telling me that he had sent them, 
 hut I don't rememlici \\ hat my reply was. 
 
 (J, .\(iv\ , wlien vou went into Mr. Gore's office to see him about the land, uhen 
 you came bac'K in the autumn of 1892, di(i you tell Mr, (iore that the plan that you had 
 received from him did not cover the land you wanted? A. i don't remember telling him 
 th It; l)Ut I remember telling him that ! had found sonic posts which enabled me to tell 
 nearly where ny land was on the map. 
 
 40 
 
 i> 
 
n 
 
4» 
 
 Q. Ami you asked him to tlian^'c the l.ind from the sketch he had given y<ui t" a 
 piece higher up? A. No; I don't remember asking that 
 
 Q. V'ou don't remember asking him that? A. No 1 showed him the piece of 
 land on which my cabin was 
 
 Q. Hut you don't remember asking liim to change that land because it was not tlic 
 land you wanted? A. I don't remember asking him to change it. 
 
 (j. And the reason >'ou did not pay for this land was you wanted to use your money 
 in business? A. Yes. lo 
 
 O. Wasn't it rather speculative when the money was due for the land? A. No, 1 
 'lid not consider it that \va\'. 
 
 (J. Didn't \ou know that the Company could not compel \'ou to pay for this land if 
 you chose? A. Vcs, they could compel me to pay for it. 
 
 Q. They could compel you to pay '"or it? A. I suppose they could. 
 
 O. \'ou suppo.se the)- could? A. V'es. 
 
 Q. Do yo'.i suppose thes- could compel ,\'ou to ])ay for this land? A. 1 suppose 
 they could. 
 
 Q. Vcr)' well Now you have recollected a meeting here when you uent down to 
 Mr. Solly's office in February, wasn't it after he asked \ou to come down to his office and 
 talk the matter over; you sa\- \'ou recollect it? A. Yes, I have a slight recollection of 
 that now . 
 
 O. \\ here was it that Mr. Solly offered to give you a plan of this piece of land that 
 the Company woiild give \ou? Was it at your store? A. 1 am not sure whether it was 
 at the store or at the Company's office. 1 remember him saying that the)' had located the 
 cabin; ,md 1 asked him for a tracing But I am not sure now whether it was at the inter .i" 
 \ iew at the Company's office, or ululher it was in m\- store. 
 
 (J. And you state now, Mr. Ilobbs, that \(iu did not know at any time that there 
 was cod on the land until the Iv & N. Railwa\- struck it there with the extension? A. 
 I did not know tliat there was anj- coal on my land or under my land until after the slope 
 was st irted there; but I did know there was coal in the near neighbourhood. 
 
 (,j. Vcs. Now you sa\- you went on this property before Mr. Justice Walkem 
 made his order in January last, and that you went down the slope t 50 yards? .\. Yes. 
 
 as near as I can judge. 150 y.irtis 
 
 (J. I so yards? A. Yes. 
 
 (J. L luier your land? A. Yes. 
 
 (J. And then you did not go to the end of it? 
 it then. 
 
 40 
 
 A. No, I did not go to the end of 
 
 O. Who measured it for you? A. 
 O. Guess work? A. Guess work. 
 
 No 
 
■ i?/i>. 
 
 43 
 
 (). Vou staU.I to the JucIkc posilivcly, .50 y^nls, and then .li.hi't ^o t<, the cnil of 
 
 it? A. I believe I s;-.i(i ahout 150 yards. 
 
 0. Under yiiiir land aliont I 50 yards. A. Ves. 
 
 O. And you understood it was 200 yards? A. Yes. 
 
 Q, And when you ^'ot down that distance you had not KOt lo the end ol it? A. 
 No. 
 
 O. Hut that IS merely u'ui'ss work; you <iid not measun- it? A. I di<l not measure 
 
 it, no. 
 
 O. Now you say when you saw Mr. Solly about the land in his oFTue, that Mr. 
 Solly said to you. '' If \ou want to go to law I think wc can accommotlate jou?" A. 
 Not exactly, Mr. I'ooley. " If you have any money to w:tstc in law, 1 t^uess we will 
 meet \'ou." 
 
 O. " If >ou have ,-in>' money to waste in lau, I «uess we will meet yon?" A. Yes. 
 
 O. Vou say Mr Solly said that to you in his office? A Yes. After my senn^r 
 that fthouuht I cnld compel the Companv to carry out the arran^'cments. I naturally 
 fel' ver\' indignant at not l.cinR allowed to complete the purchase, ,md ,it the idea of los- 2" 
 inf; the land. 
 
 O. At this time the currant bushes were de:u!? A. (^h, they were dead long ago. 
 
 R|-.-K,\.\MINKl> HV Mk. MCI'IIILI.II'S. 
 
 Q. My learned friend asked you about the explanation of this description in the re- 
 ceipt, which is Exhibit '• C. ' When you were speaking about the descrii)tion contained 
 in that receipt, what is it that has arisen in respect of the dc>^cription? What is your ex 
 nlanation when you say that it is not the s.ime l:md? A. I understand that it is the 
 land which I described? 
 
 O. You understand it to be the land \'ou described? A. Yes; the land \\hich I 
 went on. 
 
 ( ). The land which you described in your application? A. I understand that the 
 land fdescritjed is the land that I am on. Hut i know now for a fact that a line drawn 
 due west — 
 
 O. Hut who is r,.i-,ing this point about a line drawn due west? A Not I, of 
 course. ^o 
 
 O. Vou are n( ■ i;ii-ii, ; it? A. No; I h.ad no compass when I made out that 
 description 
 
 The Court: " I understand that the land described in my application was" — 
 
 Mr. McPhillips; (J.— as set forth in the receipt? A. As set forth in the receipt; 
 yes. 
 
 (.). Is it? A. Yes; that is the land which I went on, which 1 described to Mr. 
 Irutch; and he made out the receipt from my description. 
 
IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 /. 
 
 MP 
 
 1.0 
 
 I.I 
 
 U£ 1^ 12.2 
 2£ 
 
 1.8 
 
 
 L25 iU III1II.6 
 
 V] 
 
 ;? 
 
 % 
 
 
 /: 
 
 V/ 
 
 y 
 
 /^ 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 23 WeiT fe *«'• SYdEBT 
 
 WEBSTER, NY. MSSO 
 
 (716)872-4503 
 

 cv 
 
I 
 
 43 
 
 (J. But since tiieii something has been raised — so.iic i|ucstioii has been raised; who 
 l!as raised it? A. Pl.c Defendant Company. 
 
 (J. The Railway- Company have raised some question about it? A. Yes 
 
 y. And what is it? A. Well, as far as I can make out, they maintained that I 
 applied for the land due west of Stark's. 
 
 Q. Due west is not in the receipt, however? A. Due west is not in the receipt; 
 that I know. 
 
 O. Not in this agreement of the 28tli of November? A. I say west, and it is in a '" 
 westerl)- direction. 
 
 Q. Well, as a matter of fart, it is due west of land of Stark's, is it not? A. It is 
 due west of .some of Stark's land. 
 
 The Court; Q. When you arc speaking about this you have got t'le description in 
 the conveyance, and you have tjot the description in the application Now what am I to 
 understand you about thi-- land, about some of it being due west of .Starks, the land de- 
 s'-ribed in the receipt or in the deed? A. It is all west. 
 
 Q. It is only the question of due west? A. Yes, my Lord. 20 
 
 Mr. McPhillips: y. Mut the Defendant Company are now laying stress on its lieing 
 due west; is not th.it the point? A. Yes. 
 
 y. Hut, even dealing with due west, it is due west of some of .Stark's land? A. Yes. 
 
 Q. All this land is due west of some of .Stark's land? A. Yes. 
 
 The Court Q. I do not see how this ,'rises. Whatever be the description, both 
 parties are one as far as that is concerned Whether there be a difference or whether 
 there is not is immaterial; the jioint is whether the mineral is included or not? 
 A. Yes. my Lord. 3° 
 
 y. As far as the plaintiff is concerned he says it is immaterial whether it is west or 
 due west. 
 
 Mr. Mcl'hillips: My learned friend laiil stress on that; I don't know what he is 
 g.iing to raiw. 
 
 Mr. McPhillips; Q. You s,iy you had no compass? A I had no comjjass, no 
 way of measuring; it « as a general description and 1 think now as good a description as 
 any one not well learned in the wools, t'lat anyone could go and get even to-tlay. 
 
 n. I'.ven to-da\- you think it is as good a description ns could have been gi\en? A 
 
 4'> 
 
 Yes. 
 
 Now what \\ as the conilitioii of tin- country ju.st about there that you had to go 
 through; west of Stark's? Was it bushy country? A. It was all wild, bushy country 
 
 Q. The land west of Stark's is all bushy country? A. Yes, and is to-day. 
 
 O. What kind of a trail? A. An old trail, deer or elk trail, winding out from 
 Stark's place. It was ke|)t open mostly by Stark's cattle going from one of these 
 meadows to the other. And it ran that way. No logs were cut out or anything. 
 
44 
 
 <j; Xo- Fog- were cut out? A. No. 
 
 o. ,\nd this descriptioi; tliat the Defendants put in the deeti, is the land that you 
 
 finnm the first? A. V cs. 
 Q. AnJ the land on which you built your cahin? A. Ami the laiid on which I 
 
 LuJi am cibias, both of them. 
 
 ly.. And what you wanted? A. The same land I \vante<l all the time The !and 
 1 mvtaoa <o« nnt and I have never been on any other land. 
 
 (fj Anf! you have never had but one agreement with the Defendant 1ompan>? "> 
 A. Ifraiti»all. 
 
 '(^ ^iy learned friend asked you alxjut when Mr. Soll>- came to you and he sad 
 you umiMied -iomc land or other; was it this land that he pointed out to you? A. No; 
 bin the (unmpAny had ail alon^ I suppose — I gathered from conversation v itJ* the Com- 
 liamy'* cotfinrers that they supposed all along that the land ! wanted was due ire>t from 
 
 ifj They had been working r.n the assumption that the land had Icen al>>r>[utel> 
 djK- wert.^ X Due west, ves. 
 
 20 
 
 Q.. Of ^iome point in Stark's land 
 
 ITW i «mtt: Q. Doe^ the description in the deed go on that assumption' A No, 
 
 inv Ijowfi 
 
 Hj Mcf'iillip-: y. Now you said to my learned friend, you said something 
 to Mrr Hcodifson that if you were given $100 you would show him some coal. U hat 
 did yi'iw Bfflean by th.it and where would the coal be? A The coa' is over a half a mile 
 
 snjmbt' io(f my place. 
 
 Q. Ft JH not any coal on your place? A. It is not an_\- coal on my place 30 
 
 Q Vou did not think tliere was coal there? A. I did not think there was coal 
 iHone .mt allP nntti the Company started that slope there. 
 
 fjt. You never had any idea there was any coal on \'our land, claiiiiol by you. i ntil 
 the Gwitpuny started that slope? A. No; I did not. 
 
 *2 And the litigation commenced and Mr. Justice Walkem made his ofc! .t? A 
 1 haiA m)> itca that there was coal on it, I heard that there .as coal on the K. & X. Ex- 
 tenwwB,. *nd [ thought that mayhe my land might be of a little value there; but I had no 
 
 i4ta '0«f £io(tl bemg under it. 10 
 
 *J|- Now, my learned friend asked you about this slope; it went 150 yards, you 
 tSaaanlt. flf ai. out JOO yards. Now, it does not commence on )our land? A. No; the 
 ij iwiush io4f the slope is outside ol my land. 
 
 *Jf. And it runs down under your land? A. Ves. 
 
 *2 And, spe.iking roughly, yon thought it w.is 1 50 yards? A. Yes. I think so 
 jtfl I walked do'.vn there; it w;is only a gradual ii.clinc, and one can walk doun fairly 
 
45 
 
 20 
 
 y Who did you understand Mr. Hodgson to lie when became to you? A. I had 
 met Mr. Hodj^son in Nanaiino; I was slightly aciiuaintcd with him, and I had heard 
 since that he had taken uj) land somewhere in the same neighbourhood, over by Mr. 
 Stark's, there, but 1 never thought seriously about selling the land He spoke in a very 
 otT-hand manner that he had some land near there, and thought it would be good for 
 shec]). And at the same time I knew coat had lieen found in the neighbourhood, and did 
 not think he was in earnest about his sheep. 
 
 y. Vou treated Mr. Hodgson as a man to whom you had to talk, but to whom you 
 had not to he particular about what you told him? A. That is just the matter. '" 
 
 y. You thought he was on a fishing expedition? A. I thought he was on a fish- 
 ing e.vpedition; and he has Ijceii around fishing since then, but he did not catch. 
 
 E.\.\MiNEi) Bv TiiK Court. 
 
 y. Mr. Hobbs, how long were you building or putting up this cabin which you 
 erected to the e.xtent of five logs, which you were speaking about? A. We were, I sup- 
 pose, a couple of days getting the logs and getting them to the i)lace. 
 
 y. Flow many of you? A. There were three of us; about three days j-ctting out 
 the togs and erecting a tittle green bough shelter to sleep under. 
 
 O, Was it three days for the three of you? A. Yes. 
 
 Q. And then what other time? A. Then one day in attempting to raise it. 
 
 y. The same three? A. No, ni_\ Lord; Mr. Bramley and .Mr. Ralph Bramley and 
 Mr. Ezra Hramley were there then. 
 
 Q. That would l)c five of you? A. I am not sure about Stovall laeing there then 
 at the time wc were raising it. I am not quite sure about ^itovall being there at the 
 raising. 
 
 Q. .Six of s'ou one day. Then what else? A. The Bramley brothers returned 
 home that evening, my Lord, when the snow came so bad; and they did not come out 
 again. 
 
 y. That was all the work that was done on the cabin so far? A. Yes. 
 
 y. Then in erecting the second cabin, ho' many days? A. I forget just the time 
 we were occupied, but Mr. Murra) helped me until we had the rafters up. 
 
 y. How man\' of you were getting out the logs? A. Mr. Murray antt I got out 
 the logs for the second cabin. .. 
 
 y. About how long? A. I forget, my Lord, I don't remember about how long it 
 took us. 
 
 y. Three or four da)s? A. Yes, 1 think it would perhaps, I don't know. 
 
 y. .\ week getting out the logs, and how long raising it? A. We i)ut up the walls 
 in a day. 
 
 Q. You and Mr. Murray? A. No, my Lord, Louis Stark, his son .\braham 
 Stark, and ^Turray and 1. 
 
 30 
 
4<5 
 (J. How many days were you raising it? A Put up the logs in one day. 
 
 y. And what else? A. And Murray and 1 put on the rafters; got them out; 
 peeled them and put them on. 
 
 Q. How many days did that take? A. It is hard to remember, my Lord, eight 
 years ago, and I don't remember just how long it was. 
 
 Q. How many men, do you remember? A. Only two of us. 
 
 Q. Was it a day's work getting them out and a day's work putting them on? A. 
 Ves, I guess there might have been, at that time. lO 
 
 Q. Did you do an) thing else to it? A. Cut out the doorway and windows, split 
 some shingles — shakes. 
 
 Q. That would represent how many days' work for the two of you? A We were 
 there for several weeks altogether. 
 
 Q. Several weeks. Three weck.s? A. Yes. I expect three or four weeks. 
 
 y. And that made the house habitable? A. That made the house habitable, yes. 
 
 Q. I thought I understood you to say that as regards the first cabin you put in the 
 windows? A. No, my Lord. 
 
 Q. Only the kigs, the few logs? And no door cut? A. No. 
 
 Q. And the plants were put in there? A. They were put in liefore, they were put 
 in at the time just before building the other cabin, the first cabin. 
 
 Q. That (lid not take you long to put them in? A. They were onl>' hilled in tem- 
 porarily, and they were put in .it the foot of a windfall tree, a tree had been blown over, 
 and 1 put them in there temporarily and the>- afterwards got smothered up. 
 
 Q. That would not take you over a day? A. No. iq 
 
 Q. And the cost of that? A. They cost nothing the\- were given to me by Mr. 
 Stark. 
 
 Q. What is the value of land around there irrespective of minerals, in that section? 
 A 1 do not know, my Lord. This was sold to me for $3.00 an acre. 
 
 Q. What is the the present v-'ue of land irrespective of minerals? A I h.nve not 
 heard of any prices. I cannot form an idea, my Lord 
 
 Q. Vou don't know what the value of agricultural land is there at all? A. No, I 
 have never heard of any sold in the neighborhood. I know it takes considerable labor to 40 
 clear land; it is worth from 100 to 150 dollars an acre to get it in a fit state for cultiva- 
 tion. 
 
 Q. Is this land pretty thickly timbered? A. Yes,- it is pretty thickly timbered 
 outside of the swamp. 
 
 Q. And what is the area of the open land — swamps — or open land? A, I have 
 heard it variously estimated from 25 to 40 acres. 
 
 Q. Outside of the swamps? A. That is of the open swampy land on that place. 
 
47 
 
 Q. And the rest of it is timbered heavil>? A. Is timbcicil and rock) . where it is 
 not hcavil)- tiiiil-ere<l st is Jjarc rocks 
 
 (J. And what is the class of timber? A. I'rincipally fir and some cedar around 
 some of the swamps. 
 
 y. Is It large fir? A. No, my Lord, not very large. 
 
 Q. Not lodging fir? A. No, my Lord 
 
 Q. Not merchantable timber. A. Not merchantable tinilier, no. 
 
 Witness stands aside. 
 
 JO 
 
 30 
 
 RALPH HRA.MLEY. being duly sworn, testified. Examined by Mr. McPhillips: 
 
 y. Your name? .\. Ralph Hramley. 
 
 O. Ami you reside wherei" A. Cranberry District. 
 
 Q. To come right to the point — very near to the land In ilispute isn't it? A. 
 Pretty near. ^^ 
 
 <J. How close? A Oh about two miles away I guess. 
 
 Q. Now you know the plaintiff, Mr. Hobbs? A. Yes. 
 
 Q When did you first meet him? A. Well, I c<iu!d not tell you that — not to the 
 (late. 
 
 Q. Would it be the time vfhsn he came on to this land in question? A. Yes. 
 
 (J You saw him at that time. A Yes 
 
 Q. And do you know anything about what he did on this particular land? A. I 
 know he put up a little — started to put up a cabin. 
 
 Q. \'oii know he started to put up a cabin? .\. Well, we helped him a little. 
 
 \J. You helped him. you and your brother? A. Yes. 
 
 (J Well, now you have been on the land have you not? A. Yes. 
 
 Q. Around it very much. .-\. A (cw times around there. 
 
 Q. ,\nd you know where this cabin that he has been speaking of in his evidence is 
 built? A. I know- where both of them are. 
 
 y. You know the one where he starteil and the one that he completed — that was in ^" 
 I1S89? A. I don't know; I cannot tell any year; 1 know it is there all right. 
 
 (J It is six or seven years ago anyway? .\. I could not tell you. 
 
 O. However, you say he started to build one cabin and completed a.iother? A. 
 Yes. ~ 
 
 Q. iJo >ou know why he stopped building the first cabin? A Well, I don t 
 know exactly why he stopped; hut I know he stopped that day we were there on account 
 of the snoH And we never went any more. 
 
ynii 
 
 ■ibn 
 Ah 
 
 hrsl 
 
 il II 
 
 CI >,\ 
 
 COM 
 
 coil 
 
48 
 
 (J. How far is the new cabin from the first u:ic? A, Oh, about three humlreil 
 > arils, I yiiess. 
 
 (J. Three hundred yards. Where; north, south, la^t or wist? A. I could not tell 
 you the direction; 1 am no surveyor. 
 
 (J. Which do you think? A. 1 don't know; I h.ive fjot no thinking about it. 
 
 (J. Vou don't know? A. No. 
 
 (J. Hoiv lont^ had you been a resident within two miles of this particular \nc>\>erty, 
 before you saw Mr. Hobhs? A. 1 have lived up there about twelve \ears altogether, i<) 
 about Nanainio. 
 
 Q. How lonjj had you been in that neighbourhood before Mr. Hobbs caint.' A. 
 .About four years aii)u ay. 
 
 Q. Have you ai>- land in that neighbourhood? A. Yes 
 
 (J. \'ou have land in that ncif^hl ourhood? A Yes. 
 
 Q. \'ou had it before Mr. Hobbs carnc? A Yes. 
 
 (J. Who had > <u t,'ot your land from? A, We ^,'ot the title deed from the H. & 
 N Ky. To. 
 
 (,). When did you take it up? A. We took it from the Government uhen we 
 first took it 
 
 (). You \' xre one of the pre emptors? A. I don't know what you call it; we took 
 il up from the (government. 
 
 (J. i'hat is. you took it U)) at a dollar an acre. A. Yes. 
 
 O And, of course, under that sub-section in the Act, you were not entitled to any 
 ceil. Did you have any talk with Mr. Hobbs about the Defendant Company reserving ,3 
 (oal? A. I don't remember. 
 
 (.). Do you know that this l.-Hid has been surveyed since — that Hobbs claims? A. I 
 could not say that. 
 
 Q. You don't know whether it was surveyed or not? A. I do not. 
 
 ( ) Do you know how \on\r after the first cabin was abandoned that the new one 
 was erected? A. No. 
 
 O. You know of the new one being erected? A. Yes; I know there is two there 
 
 Q Did you assi.st in it?. A. No -^^ 
 
 Cross-Examinep by Mu Pooley. 
 
 Q. Do 1 understand you, Mr. Hramlcy, to say that you did not assist or did you 
 assist to build the first cabin? A. Yes, sir; the first cabin. 
 
 Q. You assisted to build the first one? A. Yes. 
 
 y. You did not assist on the second one? A. No. 
 
 Q. You knew Mr. Hobbs pretty intimately then? A. Oh yes. 
 
St; 
 
 A. 
 
49 
 
 lO 
 
 y. Hut you don't recollect having anj- conversation vvitl; him about coal? A. Oh 
 1 iiavc hail a little about coal; '. heard him .say that he knew where there was coal. 
 
 y. You have heard him say that he knew where there whs coal? A. Yes. 
 
 y. When? A. Well, I don't know for sure when it was. 
 
 y. You cannot tell for sure when it wa.s? A. No. 
 
 y. Was it before he came to Victoria? A. Oh, 1 think it is since the E. & N 
 started; 1 think so, I would not be sure. 
 
 y. Did he tell you where he knew it was? A. He did not tell us where — he salt. 
 Ik- knew there was some coal around there somewlcrc. 
 
 y. Did he tell >ou it was on his own land? A. 1 would not be sure of that 
 
 y. Did he tell you that he knew of any coal beiiif; there wiiilst he was living there? 
 A. 1 don't think so. I don't think it was at the time he was living there 
 
 y. You don't remember that? A. No 
 
 y. Did you see the second house completed? A- Oh, I have seen it; 1 have been 
 around there hunting — that is ah. 2o 
 
 y. Was it all well finished up? A. Not \ery good. 
 
 y. Not \er\' good? A. No. 
 
 y. W as it weather tight? A. 1 don't know ; it might be. 
 
 y. Did vou go inside it? A. Yes, 1 have been inside 
 
 y. Could j'ou tell whether it was weather tight or not? A. I never took particu- 
 lar notice. 
 
 y. Were the windows in goo<i shape? A. Not very; not when I was there. 1 
 don't remember being there when the Plaintiff li\ed there 
 
 y. You don't remember being there when he lived there? A No. 
 
 y. Whc'.i did you go there first — do you know? A. I don't know that. 
 
 Re ExAMiNF.n bv Mr. McPhili.ii'S: 
 
 y. Your brother, Ezra Hramley, where is he? A. In Englanc 
 
 y. He is It the present time in England? A. Yes. 
 
 y. He helped Mr. Hr-bhs to build his cabin, did he not? A. Yes. 
 
 Witness stands aside 
 
 3° 
 
 40 
 
 lips: 
 
 ALLAN G. MURRAY, being duly sworn, testifies. Examined by Mr. McPhil 
 
 O You know the Plaintiff in this action, Mr. Hobbs? A I do 
 Q. When did you first meet with him? A. In the spring of 1890. 
 
A 
 ra 
 
 fr 
 
 ai 
 h1 
 
50 
 
 lO 
 
 A. About two miles from Stark"s 
 I think so. 
 
 Q. What did you do with him? I mean ili'l you enter iiito any business relations 
 with him? A. Yes, I went in partnership with him clearing land. 
 
 Q. Well, I believe in doing that you, went somewhere to get some tools? A 
 \'es. 
 
 Q. Where did you go? A. We went to Mr Hobbs' ranch. 
 
 Q. You went to Mr. Hobbs' ranch. Now just tell the Court where you went to? 
 A. Well it was probably about two iiiles from Mr. Stark's ranch. We went to Stark's 
 ranch firs'- by buggy and walked from there. 
 
 Q. That is Mr. Hobbs and you did? A Yes. 
 
 The Court: Q. Two miles from Stark's ranch? 
 ranch. Yes. 
 
 Mr. McPhillips: O. It is about two miles? A 
 
 Q. In which direction? A. In a westerly direction. 
 
 Q. And what did you fird? You came to some stopping point, what did you do? 
 A. We got to Mr. Hobbs' < abin or part of a cabin. 20 
 
 Q. You came to part of a cabin? A. \'es. 
 
 O That wa< the first cabin? A. Yes. the first cabin that was on the place. 
 
 Q. And what did you find there? A We fount his tools there, which we came 
 for. We came for tools and we found them there. 
 
 Q. Where were the>? A. They were around the house, scattered around one part 
 and another; scattered within a few feet of the ho isc. That was the house that was 
 about five or si.\ logs high, probably. 
 
 Q. Now, did you see an>' evidences or were there evidences of anybody being 3° 
 in possession of the premises there? A. Of any other party? 
 
 Q. Did you see anything else showing that a man had been living there? A. Oh 
 yes; a grindstone was set up; he took me down and showed me a few fruit bushes that he 
 had got from Stark and jjlanted there. 
 
 Q. And what else? Anything else? A. No, that was all I could see. 
 
 O. Do you remember noticing any posts defining— indicating that they were driven 
 
 in or anything of that kind there? .\. At this time, no. 
 
 40 
 Q. Now what did you do after that? You worked all summer with Mr Hobbs? ■+ 
 
 A. 1 worked all summer at Nanaimo with Mr Hobbs. 
 
 O And what in the fall did you do. A. I returned to this place with Mr. Hrbbs. 
 
 Q. That was the fall of 189O? A That was the fall of 1890. 
 
 Q. Returned to whose place? — Where the cabin was four or five logs high with the 
 Plaintiff? A Yes. 
 
 Q. What did you do then? A. We commenced to erect a hou.se again in a differ- 
 ent place. 
 
51 
 
 {^ lM> you remember what month tliat was about? A. 1 dont know just what 
 monlih a «»4— cr was after the summer's work was over. 
 
 (*. Descrilbc the other place in reference to the r.ne that was four or five logs high? 
 A. 11 «•»<• pirohahly 300 yards south of it I think. 
 
 <2-. VifM* Atarted to build a house about 300 yards south of the other one? A. Ve*; 
 it) a srinlSinriy drertion, of course. 
 
 O. ^^Tm* did yo!i then; how much work did you do? A. How long did you re- 
 •iia;n Jibapt? A I remained there probably three or four weeks. ,0 
 
 (1. W.'^dtinsT with the plaintih"? A. Working with the plaintiff. 
 
 ly And during that time what did you accomplish? A. We built the house and 
 roofed an "xiillfti +Piikes; split everythinf;, of course; it was all hand work. 
 
 O. EMTt the house and roofed it, and cut out tht doors and window*,? A Vcs; 
 made it k^ihitiaMe. 
 
 (H. Vm. m doors and windows? A. No: the door was not put in when I !cft it. 
 
 O Xio- sJoors or windows? A. There was no other c'oors or windows put in at the 
 -^ ' 20 
 
 time 1 Wl 
 
 O, Wsire you on this land after that? A. Yes; 1 was on the land after that scl- 
 era! tiffli**.. 
 
 <2. At ti'ii^* time you were on the land, did you go around the boundaries (A it. or 
 anjlMmg (0<f llfcaiE kmd? A. Well, I have been around it a good deal hunting with Mr. 
 Hobbs. 
 
 Q. Diy ytm see any posts then? A. Yes. 
 
 <2. ^^lati posts did you see? A. I saw the post probably within 150 yards from ^^ 
 the fina icaftmm 
 
 Yes. 
 
 O. AHiiOutt one hundred and fifty yards from the first cabin you saw a post? A. 
 
 TIk Gowirt: y. A [)ost or posts? A. One post, sir. 
 
 Mr. McPMi;ps: Q. lii what direction? A- It will be in a northeasterly direction, 
 
 Q. lira » northeasterly direction; do you know what post that was? A. I do not. 
 O Siow. [ believe later on in the winter you went out to Mr. Hobbs' place' A I 
 
 ■Q. Tlti>e vrmter of 1S90 and 1891? A. The winter of 1890 and 1 891 . 
 
 Q ^^liait did you find then? \. I found the cabin, the door in it, an J win- 
 dows m at, and Mr. Hobbs living there. 
 
 Q Y<ou! found the building complete? A. About as much as a bachelor* cabin 
 would te m sfte woods. 
 
 40 
 
 did. 
 
r- 
 
g. The winter of 1890 and 1891? A. It would be (890 and i8yi. The winter 
 extends over, I should think, sometime between December and February. 
 
 y. Have you been out there a{,'ain? A. 1 have been out t'lcre ayain. 
 
 Q. How soon after that was it? A. I don't know just ho\v soon; I have been nut 
 there several times on a visit; not to stay. 
 
 y. Not to stay; you were goinfj out to see him. is that it? A. Yes; I went there 
 once when Mr. Hobbs was not there. 
 
 Q. You found him away? A. I knew he was away when 1 went. 1 knew he '<) 
 was in Nanaimo. I went out and .stayed in the house two days. 
 
 0. You stayed in the house two days, when Mr. Hobbs happened to be in X:\naimo? 
 A. Yes. 
 
 O. The next time you were on the land, was 1 think in April, 1896, some time 
 when the surveyor came out, Mr. Priest? A. Yes, some time in March or April, 1896. 
 
 (). Well, were you there when Mr. Priest came out to survey the land? A. I was. 
 
 () Do vnu remember doing anything in connection with a survey of the land? A 
 \'es, I helped to chain the place. 
 
 Q. You acted as one of t!ie chiiinmen? A. One of the chainmen, yes. 
 
 y. For Mr. Priest? A. For Mr. Priest. 
 
 y. Therefore you went all around the property? A I went all round the prop- 
 erty. 
 
 y. Now, what property did you go around? Now, speaking of the house that was 
 built, where was the house with reference to the boundaries that you went aiound with the 
 survej'or? A I should think the house would be pretty near the centre of it, the second ^^ 
 house. 
 
 y. The second house? A. The second house would be pretty near the centre. 
 
 The Court: O. That is of the land that you -ent aro-.md in company with Mr, 
 Priest? A. Yes. 
 
 Mr. McPhillips. O. And chained? A. And chained. 
 
 Q. Now, speaking of these posts, you had seen — what position does it bear with 
 respect to any of the boundaries of the property? You say you had seen a post before the 
 survev; the post was inside the survey too? A. It was inside the survey too. 
 
 y. About what distance from the first house? A. About one hundred and fifty 
 yards from the first house and about one hundred yards from the survey line. 
 
 Q From which line of the survey? A. The north line. 
 
 Q. That post that you saw before the survey would be about one hundred \ards 
 from the north line of the survey. A. Of the survey. 
 
 Witness stands aside.. 
 
53 
 
 Mr. McPhillips: Now. my Lonl, if my learned friend doc . not admit thir. documcn 
 tar)' evidence— I do not think there is rmy contest about it— I will have to go on and 
 prove it. in tlv first place exhibit A that is admitted, there is no jirnof necessary with 
 respect to those. 
 
 The Court: I suppose all the documents that have gone in are admittc'? 
 
 Mr. Poolcy: I have not objected to any of them. 
 
 Mr. McPhillips. Then I do not need to sjo on and make technical proof? 
 
 The Court: No. there is no dispute about the handwriting or signatures. 
 
 Mr. McPhillips: Now, I projiose, my Lord, 1 propose to put in some e.xamination 
 L\idenrc. Pirst, of Mr. John Trutch, Lan 1 Commissioner of the Company. What I 
 propose to put in is all of page i; page 2, lines i to 2I, inclusive; page 3, line 7 to end 
 of page; page 4, line \(j to end of page; page 5, lines 1 to t6, inclusive; commencing at 
 the last line of page 5, all of page 6; page 7, line 6 to end of page; all of pages 8, 9, 10, 
 II and 12, pa<j[c 17, line 10 tn end of pa-^e; paj;c itS, lines 1 to 10 inclusive; page iS, 
 line 17 to end of page; p.igc 19; pagi; 20, line 12 to en.i of page; page 21, lines 1 to 23 
 inclusive; page 23, line 23. lo end of page; page 24, lines 1 to 22 inclusive; page 31, 
 commencing at line 5 to end of page; pages 32 and 33; page 34, lines 1 to I 3 inclusive; 
 all of page 35; pages 36, 37, 38; page 39, line-i 1 to 2 1 , inclusive. 
 
 In !VIk. Solly's Examin.atio'n: 
 
 All of page 46; page 47, lines I to 25 inchisvc; all of pages 48, 49, 50 and 51; 
 page 52, lines i to 5 inclusive; all of pages 53, 54, 55, 56, 57 and 58; page 59, lines i to 
 18 inclusive; page 62, line 26 to end of page; all of page 63; page 64, line 1 to 1 2 
 inclusive; page 66, line 4 to end of page; page 67. lines I to 10 inclusive; all of pages 73, 
 74, 75 and 76; page yy, lines i to 7 Inclusive; page 79, lines 8 to 2 1 inclusive; page 80, 
 line !0 to end of page; all of page 81 ; page 82. lines 7 to 19 inclusive. 3" 
 
 In Mr. Dunsmuik's Ex,\\iiNATio\. 
 
 All of pages 1 to 5 inclusive; page 6, lines 2 to 4 inclusive and line 19 to end of page 
 6; all of page 7; page 9, line 12 to end of page; page 10, line 1 to i 2 inclusive; page 1 I, 
 line 13 to end of page; page 12, line 15 to md of page; page 13, line 1; also line 20 to 
 end of page 13; page 14, lines I to 9 inclusive; page 14, line 24 to end of page; all of page 
 15; page 16, lines 21 to 25 inclu.sive; page 17, lines 11 to 15 inclusive; page 20, lines 7 
 to 19 inclusive. 
 
 20 
 
 In Mr. T. S. Gore's Examination. 
 
 All of pages i to 4 inclusive; page 5, lines i to 25 inclusive; -age 9, line 20 to end 
 of page; nil of pages 10 and 1 1 ; page 20, lines g to 1 5 inclusive: 
 
 40 
 
 CHARTRES C. PEMBERTON. being duly sworn te.stified. E.xamined by Mr. 
 McPhillips: 
 
 Q. Your name? A. Chartres C, Pemberton. 
 
54 
 
 O. Vou arc a barrister and solicitor of this Court? A Yes 
 
 y. And you arc the tolicilor tor the I'iaintiff in this action? A. I aiTi. 
 
 y. 1 undcrsUnd you attended at the office of the Uul'cndant (Company in iJecciii 
 Ih-t. last? A ()n the 23rd of F>cc;tnber last. 
 
 g. What year? A. 1896. I attended at the office of the E. & N. Railway 
 Company ind saw Mr. I^unsmuir and tendered this deed for sitjnaturc. 
 
 To Mr. lames iJunsmuir. A. To Mr. James Dunsnniir. 
 
 y. The Vice-President of the Defendant Company? A. Vice I'resident of the 
 Defendant Company. 
 
 y. And you found him in his office? A. I found him in his office. 
 
 y f)n Store street? A. On Store street. 
 
 y. What tof>k place there? A. I offered him this deed for sitjnature (Exhibit 
 •'X"). 
 
 y. ^■ou tendcre*! what is called Exhibit " .X " here? A. Yes. I told him it was 
 a deed for si^,'naturc of the land comprised in the agreement of the 2.Sth November, 1889, ^^ 
 and I asked him to execute it. 
 
 With .Mr. Hobbs. 
 
 y- 
 
 Q 
 
 An agreement with whom? A. 
 The Plaintiff? A. Yes, Mr. Hobbs was with me. 
 .Mr. Hobbs wa.s pre5.ent with you at the time, A. Yes. 
 
 And what did he say? .\. He refused to sign it, saying that they would not 
 sell anything but tSc surface rights I then asked if they would give an)- deed to the 
 land, and he said only their own deeds, and I said, •' With all the reservations?" and he 
 said " Yes." And I said. " You wont give any other?" and he said, " Not a one." And ^q 
 that is about all that took place I then left. At the time I tendered this 1 did not 
 notice that those words were not in there. 
 
 y. The words that have been called to your attention, that is, the "habendum"; 
 what words? A. The words " his heirs and assigns ' left out in the habendum They 
 are in the grant, but not in the habendum. 
 
 y. That is a clerical error? .\. Of the copyist in typewriting. They were in 
 there — 1 saw them afterwards. 
 
 Q. Vou noticed it yourself and pointed it out to me? A. Yes. ^o 
 
 Cro.s-Exa.minei) bv Mk. Pooley: 
 
 y, W'.iere did you get this description of the parcels from Mr. Pemberton? A I 
 tliink I got it partly from the Land Registry Office. 
 
 y. Partly from the Land Registry Office? A. Yes. 
 
 y. And you found there — you call this in the deed, Lot 6, Douglas District, and 
 Lots 10 and 11, Cranberry District? A Yes, I think that is the v ay it is in the Land 
 Registry Office, I think when I searched there. 
 
55 
 
 n. Lot 6, Lots lo and i i? There arc no such thing-, as Lots lo and 1 1, Cranberry 
 District? A. I thmiyht 1 saw them in the Land Registry Office on the map there. 
 
 Q. You saw the Dcfcndiint Company's plat? A. No, 
 
 Q. Attached to the deed? A. No, wc did not have tlje deed. 
 
 g. However, you called them Lots lo and 1 1, Cranberry District? 
 
 Mr, Mcl'hillips: Q. It is part of Lot 6, Douglas District, and part of Lots i i and 
 I 2. Cranberry District. 
 
 Witness stands aside. 
 
 lo 
 
 2o 
 
 F.L1|AH PRIEST, bciiiH called and duly sworn, testified. K.yamiiicd by Mr. Mc- 
 I'hillips: 
 
 y. Your name, Mr. FViest? A. Klijah I'riest. , 
 
 Q. What is your occupation? A. Provincial Land Surveyor, 
 
 Q. You arc a duly (lualificd I'rovinc al Land Surveyor? A. Ye«. 
 
 O. You practise in the Province of British Columbia? A. Yes. 
 
 Q. You know the plaintiff, Mr. Hobbs? A. I do, 
 
 Q. Did you do any work for him? A. 1 did some work for him out in Cranberry 
 ;ind Douglas Districts. 
 
 Q, When? A. In April, 1 886, 
 
 y. Now what were the circumstances of your being instructed to do some work for 
 him? How did it occur? Who came to you? A. Mr. Hobbs came to me and asked 
 inc if 1 could go out and survey his i6o acres for him. 
 
 Q. Yes: and did he show you anything? A. He showed me a i)lan that he had 
 from the Railway Company. 
 
 y. Was it this plan that you have reference to (Exhibit " I ")} 'handed to witness). 
 A. Yes; 1 think that is it; 1 thing he showed me both of them. 
 
 y Here is the other (E.xhibit " F ")? (handed to witness). A. Yes, I think he 
 showed me two of them. 
 
 y. Exhibits "F" and "I"'? A. He told me that that w,is the latest he had 
 received from the Railway Company. 
 
 O, That is Exhibit " I ' was the latest he had received from the Railway Company? 
 A, Y<?s. 
 
 O. That " I, " that is the smaller one, that was the latest received from the Railway 
 Company. A. Yes. 
 
 y. Now what did you do after being shown those? A. I found my starting point 
 y. You went on the ground? A, I went on the ground with Mr. Hobbs. 
 
 \o 
 
S6 
 
 y. What ground did you go on? A. The ground where he had a cabin built. 
 
 y. Did you go to the house? A. 1 went to the house that Mr. Hobbs had built. 
 
 Q. Had you ever .seen that house before? A. Yes, 1 had seen the cabin before. 
 
 O. How long before do you think? A. Some time in 1894. 
 
 O. You had been over the ground then in 1894? A. Yes. 
 
 g. Did you meet with Mr Hobbs then? A. No, there was no one staying there 
 
 then. 
 
 10 
 
 Q. No one living there then? A. No. 
 
 O. You identify it as bemg the house you saw there in 1894? A 
 
 The same 
 
 house. 
 
 Q. You got on the ground and got to the house. What did you ne.\t do? A. It 
 was on the Sunday night I think when we got out there; and the next morning I com 
 menced to make a survey of the land. 
 
 Q. Who were all there? A. Mr Hobbs, Mr. Murray, Mr. Holmes, and 1 ^hink, S\\. 
 Luckner, I am not sure. Anyw?y there was another man there but I forget whether it 20 
 was Mr, 1-uckner — it u r's someone li\ing out there. 
 
 Q. 'N'ou say Sunday night you 'ot cit there, and Monday morning you started in 
 to make a survey? A- Yes 
 
 Q. Who assisted you in making the survey? A. These parties that I mentioned. 
 
 Q. All of them? A. I think so. 
 
 Q. Mr Murray said he was there and acted as a chaininan? A. Mr. Hobbs, Mr. 
 Murray and myself stayed in the cabin all Sunday night. 
 
 Q. And in the morning? — A. In the morning, I think, Mr. ffobbs went for ^° 
 Mr. Holmes; I am not sure Anyway Mr. Holmes came there. 
 
 y. .\nyway, you all started out to make the survey? A. Yes. 
 
 y. Mr, Murray said he was one of the chainmen? A. Yes. 
 
 y. Whei'e did y(,u go for your starting point? A. My field notes will show 
 
 O. You sent them in to the Defendants? A. I sent them in to che Defendants 
 
 .At the request of Mr. McPhilli[is \[r. I'oolcy produced the field notes. 
 
 y. (Handing field notes to witness) Are these the ones? A. That is the copy. 
 There is another one; there is the original. 
 
 O. Which copy \< this; the one that )-ou sent to the Railway Company? A. Yes. 
 
 y. Weil, that is the one we wnnt to get at. A. 1 commenced at the Victoria 
 < ompany's posts. 
 
 y. These are your field notes? A. Yes 
 
 Field notes |)Ut in marked E.xhibit '' Y." 
 
 40 
 
lO 
 
 57 
 
 Q. These are your field notes, and inside is a tracing? A. Is a tracing, yes, 
 
 y. Vou identif}' now the field notes, and \-our tracing of the survey made at that 
 lime. A. Yes, made at that time 
 
 y. These are yours? A. These are mine. 
 
 y. Exhibit " Y; " and they went out of your custody to whom? A. I si nt them 
 <lown to Mr. Solly 
 
 y You sent them yourself down to Mr. Solly? A. Yes. 
 
 y. On whose instructions? A. The instructions from Mr. Hobbs. 
 
 0. Nrw, you say you commenced at a starting point at the Victoria Lumber Co.'s 
 post? A. Yes. 
 
 y. That is — I think 1 am right, that 's you ha\e to tie on to some survey. A. Some 
 recognized survey. 
 
 Q And also you knew very well that the rule of the railway company was that 
 there should be no broken — A. No fractions. 
 
 y. No fractions. And you made your survey? A. And I made my survey in accord- 20 
 ance with that. 
 
 y. ('onsistent with those known rules? A. Yes. 
 
 y. Nou , looking at this tracing; the railway company in their deed have called it 
 Lot 6, Douglas District; and we have also set it up as being Lot 6, Douglas District, and 
 portions of lo and 1 1. Cranberry District. Well, it does include as a matter of fact por- 
 tions of lO and I 1, Cranberry District, does .t not? Look at that tracing, E.xhbit " I," 
 that Mr. Solly handed the Plaintiff i' anded to witness). Look at the date— perhaps you 
 need all these to compare I papers handed witness)? A. Yi:s, it is the same property. 30 
 
 y. That is you identify the tracings " Y " and " i " aid the tracing on deed— all 
 covered the same property? A. All covered the same property- 
 
 y. " Y " and " I ' ;ind the tracing on "T" cover the same property? A. Yes; 
 co\er the same ground. 
 
 y. This Lot 6 redly covers a part of Cranberry District, that is Sections I'o and 
 
 I 1 does it not? To get at it, Mr. I'riest, more accuratel)— A. Yes; it covers the 
 
 same land. 
 
 40 
 
 y. The district line between Cranberry and Douglas District.^ intersects Lot 6? A. 
 N'os. Of course, the district line is not surveyed. 
 
 Q. Hut you as a surveyor assume that the district line will come through Lot 6? 
 A. Yes. 
 
 y And conset|ucntly Lot 6 includes portions of Lots 10 and 11? A. Of Sections 
 I o and 1 1 . 
 
 y. Cranberry District? A. Cranberry District; Yes, 10 and 11. 
 
thi 
 
 A 
 
 \ ( 
 th 
 
 he 
 
 ^] 
 W 
 
 Si 
 
58 
 
 O %•)» .-jn this tracing, Exhibit " I," you notice there is marked there a cabin down 
 there about the centre 'handed to witness)? A. Yes. 
 
 (I An.i it IS written on it also " F. V. Hobbs' Cabiri ' ? A. Ves. 
 
 0) Swt turn to F-shibit " T," that is the deed, and do you find the- cabin marked 
 nn it. too? A Yes. 
 
 Cj. Ttat same cabin? Then looking at " E.xhibit 1 " and " E.xhibit T ' you identify. 
 A ] woMiM take them as being about the same location. 
 
 O. Ham cs you would say that it is the same cabin? A. Ves, it is the same cabin. lo 
 
 '(J Weil now. you -ay you saw the cabin in i8q4? A. Yes. 
 
 ij Xiow. Mr. Pri .St, you have now surveyed the property, of course? A Yes. 
 
 O. Aoikf you have a good knowledge of its boundaries and everythin;.'. This cabin 
 you saai ram D.'*94 is the '<ame cabin, that is about the centre of this proi^crty? A. Yes. 
 the sainac ccaifemiL 
 
 O. foefieve you did not see the original application that Mr. Hobbs made; of course 
 he left llkw with the E. & \. Railway Company, but I will refer you to that. In that ^q 
 apyjlicatwiraiit rcad.s, as follows: iReailing document 28th Nov., 1889. '• E.xhsbit G ') 
 Well MW . there you will notice that a post is mentioneil. and a swamp. There is a 
 -wanip lom lti!ii+ land that you surveyed? A. Yes. 
 
 O A mfge on it too? A. Yes. 
 
 O. Am-J did you notice any post there at all? A. 1 saw .1 post sometin<ein 1S94- 
 
 <2. Ami vrhere would you place that post. Mr. Murray spoke of a post A Ve>. 
 
 iQ. Yarn were here in Court when Mr. Murray gave his evidence. A Yes. 
 
 Q !♦ i* the same post? A. I presume it must be the same post 
 
 Q He gave some bearings? A. Yes. 
 
 O A&ca<;t too y:>rds from the north boundary? A. Yes; it is about the same 
 place. 
 
 O Vcou- identify having .seen a post about t'le same point in I S94? A- Yes; I 
 saw it :m D-*<>+, and I saw it later again; but I cannot tell the date. 1 saw the post twice 
 befoTCf -Hwveyed the land. 
 
 (2- Y(!Mi saw the post tw ice before you surveyed the land? A Yes. 
 
 Cross Ex.xmined Mr. Poolev, 
 
 fx. Wl^en did you sec that post la.st; when you were surveying there? A When 
 
 I wa* *;Hm eying' 
 
 (j^ Had it any mark on it? A. I don't think so 
 
 Q^ Did you exami e it, very clo.scly? A. I think once I examined the post* 
 
 3" 
 
 40 
 
59 
 
 g. You think onc«; you examined the post? A. Not the first time ! saw the post 
 — 1 don't think I examined it then— but the second time I saw it, I think 1 looked at the 
 |iost, ;tnd F do not remember seeing any mark upon it. 
 
 Q. Did it appear to have been put there any time when you saw it in 1894? A. 
 it had been there a long time. 
 
 Q. This land was claimed by Mr. before Hobbs took it up? A. I 
 
 don't remember. 
 
 Q. l?ut that post may have been there before Mr. Hobbs went there; it might have 10 
 been any one else's post? A. It might have been any one else's post. I don't know 
 w ho placed it there. 
 
 (J. It had no marked place on it? \. It had no mark on it; I don't remembef of 
 any mark being upon the post. 
 
 Q. When you surveyed this land, Mr. I'riest, you surve>ed it, did you not, from 
 that Exhibit, that last map from the office, and from Mr. Hobbs' description? A. He 
 showed me the description— that is the description he got from the railway companj-, 
 signed by Mr. Trutch. 20 
 
 O. He showed you that? A. Yes. 
 
 O You did not survey according to th.it though? A. No; I surveyed it in ac- 
 cordance with the map that he gave me 
 
 y. The last one? A. Ye.s. 
 
 O. If you had surveyed that land according to the directions in the receipt, which 
 he shoMcd you, from Mr Trutch, would you have placed the land in the same place? 
 
 Mr. McPhillips: You l-,ad better read it to him. 
 
 Mr. Poole)-: He said he had it in his hand. 
 
 O. (Exhibit "C" handed to witness) Just read that, Mr. Priest. That is what 
 was shown you, was it not? A. Yes. (Reading it). 
 
 Q. Have you looked it through now? A. Yes. 
 
 O. It is the same one he showed you? A, Yes, 
 
 O. Now, if you had surveyed that land according to tlint receipt, would you have 
 i -laced the land in the same position in which you have defined it? A. 1 don't know. 
 1 don't think hardly it would be in the same place. .^ 
 
 Q. It would not be in the same place? A. No. 
 
 Q. It would be further west. A. Of course, 1 don't know, I never chained through 
 there. I don't know the distance from Mr. Stark's land. 1 have never chained through 
 trom Mr. Stark's place to Mr Hobbs' place. 
 
 Q. Look at this plan will you (handed to witness). Now. there is Stark's Crown 
 • Irant to start w ith, you see. From that description and that plan, just lay out where that 
 land would come; b)' that description and that receipt, as a surveyor, where would yo.i 
 think it would be. 
 
T 
 
 V 
 
6o 
 
 Mr. McPhillips objected on the ground that it is not sliown what hiid is referred to 
 as Starlc's Crown Grant; and Stark's might have a Crown Grant further off. 
 
 The Witness. 1 t'iini< there is two. 
 
 Mr. I*ooley: Q. Where did he get the other Grant? A. I don't know, I think it 
 is a Grant from the Company 
 
 Q. Hut that is not a Crown Grant. You can take this plan if }ou like; I don't care 
 which plan you look at (another plan handed to witness). Well, now, taking it from that 
 description where would you lay off that land on that plan? (referring to first plan). 1 will n, 
 read the description to you from this document here (K.xlnbit " C "): Beginning at a point 
 about two miles west of Louis Stark's Crown Grant in Cranberry District. A Yes; but 
 then that does not say definitely whether it commences at that corner or not (indicating). 
 
 Q, Then again, take the lower corner if you like? A. You have no point there 
 then. 
 
 Q. Two miles? A. Of course, two miles would take it to where you ha\e it 
 marked in blue. 
 
 Q, With this plan in your lianls as as a surveyor, where are you going to find the 20 
 land? A. C»f course, taking it strictly according to that description. 
 
 Q. That is what I am asking you; taking it strictly according to that description. 
 There is a description placed before you, where would that land be? A. That is where 
 >ou have it marked blue 
 
 Q. That would be where? A. It is marked blue on that plan. 
 
 Q. Now where is the land Mr. Prie.st on that plan which you have surveyed? A. 
 It is marked as Lot 6; I presume that that is the same place. It is coloured yellow or 
 brown on this. 
 
 Q. That marked blue is the piece of land according to the receipt; the piece of land 
 inarke-l Lot 6, is what you surveyed? A. That is what I surveyed; yes. 
 
 O. Look at that plan of Mr. Gore's there, and see where that would fit on that 
 plan, " Exhibit F?" A. (Looking). Of course, that will be right through there, where 
 this is coloured brown. 
 
 Mr. Pooley: I will prove that map by Mr Pinder afterwards 
 
 The Court: You can put it in subject to your undertaking to prove it. 
 
 Mr. Pooley: Very well, sir. 4° 
 
 Map put in by Mr. Pooley. Marked Exhibit " Z." 
 
 O. You say you saw that cabin there in 1894? A It was there in the fall of 
 
 1894. 
 
 Q. Anyone occupying it at that time? A. No one occupying it at that time. 
 Q. Doors and windows in it? A. I did not go down clo.se to it; 1 just saw it. 
 Q. Was it a square cabin? A. Just one log cabin; there is no partitions. 
 
VLT 
 
 mil 
 tin 
 
 JU' 
 
 tai 
 
 at 
 
 til 
 
 til 
 
 
20 
 
 6l 
 
 O. What is the character of this ijround that you surveyed lor Mr. Ilohbs? A. 
 W ell, there arc some swamp-, ujjon it — swamp land— and the remainder of the land is 
 vL'r>' rocWy. 
 
 Q. How many suamp* are there upon the land? A. I cannot tell you; I don't 
 know. 
 
 Q. You did not see them in > our survey? A. I did not see all in my survey. 
 
 y. How many did you sec? A. I s.iw, 1 think, three or four. I cornered in on 
 one; of course, I don't consider it as being on the ground; it w;is just a little piece where ,„ 
 tlie line cuts into it. 
 
 O. You saw three? A I think I saw three, 
 
 Q. What was the extent of those three swamps in acreage? A. I don't know. 
 
 y. Cannot you tell? A. I did not go around them. 
 
 Q. Cannot you tell us with your practised eye, about what? A I coukl if 1 went 
 over them. 
 
 Q. Of cour«. you could if you chained them? A. I did not go around them. I 
 just took a casual observatioa 
 
 (_.). Is t'lcrc loo acres of swamp? .\. I do not think so. 
 
 Q. Uo you think there is 20? A I couldn't say, I know there is not 100. 
 
 Q. Would you judge there was 20? A. 1 shoukl judge there would be 20, cer- 
 tainl)-. 
 
 O. You did not survey them of course, but you would judge there would be 20. A. 
 1 would judge so. 
 
 Q. Would you call it a first class farm. A. 1 would not call it a first class farm 30 
 b\- an\' means. 
 
 Q. Did you ever try to put down a .stake in those swamps? A. I did not try that 
 at all; I did not even go on them, only where my line ran. 
 
 Q. Is is not a sur\eyor s business to ascertain the character of the land when he goes 
 on it? A. Not necessa.-ily. 
 
 Q. Do you know whether Mr. Hobbs found any coal on this land or not? A. In 
 a conversation with him he told me he had found coal there. 
 
 Q. On his land? A. I don't know whether he said on his land or somewhere in ^y 
 that vicinity. 
 
 Q. Did he tell you when he had found it? A. Some time when he was living 
 there. 
 
 Q. Some time when he was living there? A. 1 believe so. Sometime when he 
 was living on the ground. 
 
 The Court: Do you refer to the time that he told you or to the time that he told 
 > ou that he had found the coal? \ . He told me when I was surveying the land thr.t 
 lie had found coal there. 
 
th( 
 
 
 llH 
 
 (■< 
 
 th 
 
6a 
 
 Mr. I'ooley: Q. I5id he show you where the coal was? A. No. 
 g. Did he leave you to go ami look for it? A. Leave mc to go and looU for it? 
 Q. I )i(|he no and look for it while you were there? A. No. 
 
 f). Did he tell you he was ^oinn to look for it? A, He told me he had Ijeeii to 
 sec it. 
 
 Q. He told you he had been to see it? A. ^'e . 
 
 C). Whilst you were there? A. Not whilst I was there. A day or so before I ^^^ 
 went out to survey the property 
 
 f ), He told you he had been to sec it? A Yes 
 
 (J. Uid he tell you it was on his land? A He did not tell me where it wa.s. 
 Q. He did not tell you where it was? A. Not then. 
 
 Q. Hut he told you it was .somewhere in the vicinity? A. He told me it wa> 
 somewhere in the vicinity. 
 
 g. And you did not see it? A. I did not see it. I have not seen it yet. 
 Q. Hut he had found that coal there. He had found that coal when he was living 2o 
 there?" A. 1 think he told me he had found it when he was living there. 
 Q. He had found it when he was living there? A. Yes. 
 
 Q. And he has not been living there since 1892. Did you know that the E. & N. 
 Railway Company always reserved the coal and minerals on their lands? A. I have 
 always presumed so. 
 
 g. Have you always heard it said so? A. All the deeds I have seen, it has been 
 reserved. 
 
 g. Have you ever heard it spoken of as reserved? A. Yes In fact one deed 1^ 
 have from the Company is reserved; one lot. 
 
 g. It was matter of common report, wasn't it, at Nanaimo, that the minerals of the 
 Company were always reserved? A. Yes. 
 
 Re-i-\aminei) by Mk. McPiiillips. 
 g. No\\-, my learned friend, referred you to a plan here upon which there are 
 three colors, at' least the l)locks colored blue, pink and yellow? A. Yellow and brown, 
 g. You call them blue, yellow and brown? .\ Yes. ^^ 
 
 g. On this plan there is also a piece of property colored red? A. Yes. 
 g. Called Louis Stark'.s? A. Yes 
 
 g. Now, in answer to my learned friend, you said that if you had described the 
 land a'ccording to that receipt— if you had surveyed it according to that receipt, you would 
 have brought it out here, where it is blue? A. Yes. 
 
 g. Now, blue would fetch you on to whose property, looking on this plan? A 
 part of the timber limit and part of Lot 2 and Lot 3. 
 
I « 
 
 ; ? 
 
 63 
 
 Q. It would have brous^ht you on to Victoria Lumber Co. 's limits? A. Yes. 
 
 (J. And Lot 2 and Lot 3? A. Ye.s. 
 
 Q. That is according to what you said? A. Yes. 
 
 Q. That was alreadj- disposed of, wasn't it? A. I don't know 
 
 Q. We will get at that, as a fact, at any rate, it is not unoccupied land? A. Of 
 course, I didn't know at that time. 
 
 Q. Now, when you say t'lat. Mr. Priest, I want to understand you; I want to know 
 what you are basing that -statement on. Is it that it is to be two miles exactly? A. '° 
 K.xactly. 
 
 Q. From Louis Star;;s Crown Grant? A. Yes. 
 Q. And two miles due west? A. Yes. 
 
 O. Yes; I understand you, then, in answering my learned friend, you assumed that 
 you were confined to— A. C:onfined strictly to the question— 
 
 Q. Confined strictly to two miles west of Louis Stark's Crown Gra.itr A. Yes. 
 
 O. What do you un icrstand by Crown Grant in sayinji that Crown Grant in Cran- ^° 
 berry Distrint? The Crown Grant itself is not there; what do yon understand? A. I 
 don't know. 
 
 O. When you we/e .-nswering my learned friend, you understood from C:owr 
 (irait, Louis Stark's land. It was Innd yon understood? A. Ye.s. 
 
 O. And looking at this plan you also nndcrstood another thing, Mr. Priest, didn't 
 you; you understood it would hnvc to be produced— the north and south line would have 
 to be produced parallel with Louis Stark's Crown Grant, north and south. A. That 
 would be the west line. 30 
 
 O. It would be the north and south produced due west? A. Yes, at right argles 
 
 Q. Nf,.., how many things have you assumed now? \nu ha\e assumed it was to 
 1)0 exacti'.- two mile?, haven't you. A. \'cs. 
 
 Q. You have assumed that. You ha\e assumed that it was due west? A. Due 
 ucst. 
 
 Q. Yes. Anrl you have assumed that you had to keep at right angles with Louis 
 Stark's Crown Grant? A. Yes. 40 
 
 Q. You were in pretl/ narrow lines in answering that, weren't you? A. Ye . 
 
 Q. Pretty narrow lines. Now looking at Kxhibit " C " it says, " Commencing nt a 
 point about two miles?" .\. Yes. 
 
 Q. There is a little latitude in that, isn't there, "about?" A, Yes; of course, I 
 presumed it would be exactly two miles. 
 
 Q. You assumed that; but it is " about " here? A. " About " two mile.s. 
 
64 
 
 O. And then it says: " About two miles west of Louis Stark's Crown Grant." It 
 (loe-i not say at right angles to Louis St-rk's Crown Grant docs it? A. It is presumed 
 in making a line west — in making a survey, it is supposed to be due west. 
 
 O. You presume that? A. That is strictly speaking It would be defined as 
 being due west, or due north and south. 
 
 Q. But when you say due west of a Crown Grant, it is consistent with being due 
 west from the north line, or due west from the south line? A. It is due west from any 
 line, unless there is a given point. 
 
 The Court: Q. It may be due west froin both north and south lines parallel? A. 
 Ves. 
 
 Ml. McPhillips: Q. Now suppose it were due west from the north boundary line 
 ' iiis Stark's Crown Grant, the Lot 6 as described is in its correct position is it not? 
 1 rodi'ce the north line going westerl)- from Lou"-^. Stark's Crown Grant — produce the north 
 boundary? A. It was produced from this line (indicating.) 
 
 Q. If you produced it — you ha\c assumed that it had to Ve within those parall'^l 
 l.nes? A. Yes. 
 
 20 
 
 (J. But when " west " was used; assuming that it might be west of the north bound- 
 ary line of Louis Stark's Crown Grant. A. Yes. 
 
 Q. If you produced that, then you have not lot 6? A. No; it would not bs in the 
 same place. 
 
 Q. But it would not be exactly two miles away, but it would be in that direction? 
 
 .•\. \'es, it would be in that direction. 
 
 Q. I m^an to say, the Northern boundary line of Louis Stark's Crown Grant pro- 
 duced form'- ;i.' it is now a portion of the South boundary of Lot 6? A. Yes, i' forms 3" 
 a portion ■<- !..«. I ^undary. 
 
 (J ■■ t'c :»ctual boundary line? A Yes 
 
 O. It 1.- t: i' actual boundary line? A. Yes, I ut then the description is not the 
 
 (/ In what way? A. You see your description commences from a definite point, 
 ai 1 — 
 
 Q. A po nt about 2 miles west of Louis Stark's Crown Grant A Then from that 40 
 you go west. 
 
 Q. That is west 40 chains? A. And then south. 
 
 > '!. Yes, south to Berkeley Creek. Oh, well, there is certainly some discrepancy? 
 A. !: I" ;iot strictly — 
 
 y. iiut I want to call your attention, Mr. Priest, to the fact that in answering those 
 i|uestions to mj- learned friend you assumed something? A. 1 assumed it was two miles 
 from the claim — 
 
65 
 
 1^ Bait considering your knowledge as a surveyor, and the year, it was 1889. what 
 uould ywa) -tay about this description? A. At that time I would assume it .1 propei 
 
 descTijitooiiii.. That is, considering that no survej's had been made. 
 
 ij CionMiJering the fact that no surveys had been made? A. Yes. 
 
 <Cj> Abiout the best Mr. Trutch and Mr. Hobbs could do under the circumstances? 
 
 \ ] sHaamilk -tni. 
 
 O. Snw { show you the Official Map, as it is called. It is called here '•Cranberry 
 Distrjd. (Official Map. 1859." That will bean exhibit 1 suppose? A. All those surveys jq 
 
 were nci* rniuirfe on the map at that time (1859). 
 
 O X«; it has been filled in according to surveys made and grants issued? .A. Yes. 
 O. V(0*i do find now a piece of property granted to Mr. I.ouis Stark? A. Yes. 
 
 ^. ^^Tiat is this piece lying to the north? A. There is one fractional portion of a 
 secticm 
 
 The Cssiirt: Q. Two pieces of land are accredited to Louis Stark; and one is what? 
 A. Onw i» * Crown Grant, from the Government, 160 acres. 
 
 (2- A quarter section? A. It is not in a quarter section form — it is broken up ^" 
 
 Q. And the other is what? A. The other is a portion of a section, a fraction. 
 
 Mr McPhillips: Q. It lies to the north and west? A. It lies to the north and 
 
 west (of tlftc Cro« n Grant. 
 
 •^.. Amd it his that lake on its eastern border? A. Yes. 
 iO>. What lake is it? A. Harewood Lake. 
 
 Q, Xow locking at this land of the Plaintiff, Hobbs— you find it sketched in pencil 
 cppQfiiBie„ «flo' you not? A. Yes. ^o 
 
 Q. It happens to stand opposite to this upper ])ortion of Stark's, does it r»t — a por- 
 tioBitBlf iff A Yes, it is not that distance. 
 
 <Q». Itt w not that distance away, that may not be correct? A. I don't know 
 w'helSifflr ifl m correct or not. (Measuring on map) It is only a little over three-quarters 
 
 of a amiiiDie.. 
 
 Q. Btet this is not plotted here, you know. However; it would however be about 
 ogapoaite tffi' - A. It would be west of that; Hobbs land would be west of that. 
 
 Q Dtt would he due west of that upper portion? A. Yes - "* 
 
 O, Et would be due west of this fraction, this upper land of Stark "s. 
 
 Tlie Coiwt: Q. Which is that — the 160 acres or what? A. The fraction. 
 
 IIk- Map of Cranberry District here referred to, was put m and marked Exhibit 
 
 Nt9. a. 
 
 Mr McPhillips: Q. Now you see, on this plan, which my learned friend referred to, 
 inankitiifi Exhibit " Z," a piece of property accredited to Donahue, don t jou? A. Ye?!. 
 
66 
 
 Q. Now, in this application that I read to you, that the Defendant Company had, 
 it is " on or about two miles west of Lower Harewood Lake, and about a mile or a mile 
 and a half or two miles from Donahue's claim. " Now you just refer to that? How far is 
 Donahue's claim from the land as now defined? A. About three-(|uarters of a mile. 
 
 Q. Just up to the land, as it is there? A. (Measuring.) It is 57 chains, that is, 
 very nearly three-quarters of a mile. 
 
 O. Mr. Hobbs' land as now described. Lot 6, lies three quarters of a mile to the cast 
 of Donahue's? A. To the east of Donahue's. 
 
 O. And in the application it says, a mile or a mile and a half or two miles. How 
 f,.r is the blue piece from Donahue's? .A. The blue piece is five chains from Donahue's. 
 
 Q. In your answer to my learned friend, you said that would be taking it within 
 those claimed lands that he mentioned, the blue piece would only be five chains west of 
 Donahue's? A. East from Donahue's. 
 
 Q. East from Donahue's. Yes, Donahue's claim too, lies further north than Stark's 
 Crown Grant, that you have referred to, does it not? A. Yes, a little 
 
 Q. About half the section I should say higher? A. It is just one section. 
 
 Q. One section higher? A. That is a quarter of a mile. 
 
 Q. It lies a quarter of a mile to the north? A. A quarter of the mile to the north. 
 
 O. To the north of what? A. To the north of a line drawn from Stark's. 
 
 Q. To the north of what? A. To the north of the south boundary line uf Stark's 
 Crown Grant. 
 
 The Court: O. That is the 160 acres? A- Yes. 
 
 Mr. Pooley: I ask your Lordshiji 10 ask the witness one question here. On which 
 land is Mr. Stark's house situated? 
 
 The Court: Q. Which of these, the 160 acres or the fraction, is Mr. Stark's hous^e 
 It is on the 160 acres I think. 
 
 Q. That is a dwelling hou.se? A, That is a dwelling house. 
 Q. Has he got any building at all on the fraction? A. Not on t!.e 
 
 10 
 
 20 
 
 30 
 
 situated on? A. 
 The Court: 
 
 The Court: 
 fraction — no. 
 
 Q. Well, now, taking Mr. Trutch's receipt, could you without difficulty have located 
 the land he describes there? A. Well, it would be rather difficult, because — 40 
 
 Q. Well, could you do it? A. Well, of course, I don't know the presumption 
 that these two parties had when they drew up the document. 
 
 Q. But taking the document itself, never mind their understanding, coild you 
 locate the land that is described? A. I would have to assume that it was from the north 
 boundary of the Crown Grant, and then run two miles west. 
 
 Q. Yes, assuming it was from the north boundary? A. From the northwest 
 corner that would be. 
 
67 
 
 O. Yes, from the north west corner; and then running due west? A. Due west v 
 two miles. 
 
 Q. You would locate it then in the same place, where you located Lot 6? A. 
 No, it would not be in the same place. The description is a little indefinite in itself, as 
 really there is no starting point to commence from Stark's. 
 
 Q. No, it docs not tell you which corner to commence from? A. No. 
 
 Mr. McPhillips: Q. Just one thing about that coal, I forgot about that. You 
 said somethl'-g about the plaintiff saying something about coal. He did not say that he jq 
 found any coal on his land, did he? A. No, I don't think he said it was on his land. 
 
 Q He knew of coal? A. He knew of coal being in that vicinit). 
 
 Q. In that vicinity? A. Yes. 1 know from his description afterwards to me of 
 where he had found the coal. 
 
 Q. What? A. P'rom the description that he gave me afterwards of where he had 
 found the coal I knew it was not on his land. 
 
 Q. You knew it was not on his land? A. Yes. 
 
 • 20 
 
 Q. From the description he gave you of it afterwards >ou knew it w as not on his 
 land? A. Yes. That is the land that I surveyed. 
 
 The Court: Q. N'", taking Mr. Trutch's receipt and assuming the starting point 
 IS at the northwest corner of Stark's land, you would then, by the de.scription given in the 
 receipt, that is two miles from there; come to the south line of Mr. Hobbs' land, you 
 know? A. Yes. 
 
 Q Now produced due west parallel in all respect-, a.id continuing for two miles, it 
 would take you on to the Victoria Lumber Compan> "s grou.id? A. Yes. 
 
 Q. That is not the E. & N. Railway Company's land ,it all? A. No, it takes 3° 
 you to this claim (indicating.) 
 
 Q. How is that? It cannot be two miles to this place and two miles to here, as 
 well (indicating.) A. No, it is not two miles to there; that is the ground actually occu- 
 pied. 
 
 Q. The ground actually occupied is not two miles? A No, it is not two miles. 
 The way that the trail goes, of course it would be two miles by the trail. 
 
 Mr. McPhillips: Q. It would be two miles by the trail? A. It would be U\c 
 miles by the trail, about. 
 
 Q. And it would be two miles west by the trail? A. In a westerly direction. 
 
 Q. I mean to say, following the trail, it would be about two 'miles west? A. Ye^, 
 from Stark's cabins. 
 
 Q. Where Hobbs' land is described now; A. Yes. That is where the old trail 
 went. 
 
 Q. And that is the only trail there was then? A Yes. 
 
 40 
 
68 
 
 The Court: Q. Mr Trutch s receipt docs not refer to Donahue's land does it? 
 A. No 
 
 Mr. McHhillips: It is the application, my Lord, that refers to Uonahues's claim. 
 
 The Court: Q. What is mnrked as section 8 and section 9 are the pieces com- 
 prised within Mr Gore* tracing? A. Yes. 
 
 Mr. McPhillips: In Exhibit " F " my Lord. 
 
 Witness stands as;dc. 
 
 Court adjourned until to-morrow nt 1 1 a.m 
 
 10 
 
 20 
 
 30 
 
 ExA.MiNATiox Evir)E\cE Befoke Trial— Put in by Plaintiff. 
 
 JOHN TRL" TCH, beinji duly sworn, testified. Examined by Mr. McPhillips. 
 
 Q. Your name is Mr. Tnitch? A. John Trutch. 
 
 Q. Do you know the Plaintiff in this action, Mr. Hobbs? A. Well, 1 do not know 
 him personally; I do not remember him. 
 
 Q. I think he is in this room here now. Do yo" reco^jnize him? A. Well, no. I 
 ilo not I have a sort of idea that I have seen him, but 1 can't place him at all. 
 
 Q. Of course, it is a long time Pf^o? A. Nine years ago nearly. I have a sort of 
 idea I have seen him. but in connection with what, I could not say. 
 
 Q. Now. on Xovember 28th, 1889, you were acting, i believe, as Lnnd Commis- 
 sioner for the E. & X- Railway Company? A. Yes. 
 
 Q. The Defendants in this action? A. Yes. 
 
 Q. When had you been appointed to that office? A. Oh. 1 was appointed in June, 
 1887. 
 
 Q. June of the year 1887? A. Yes. 
 
 Q. Do you remember how you were appointed? A. I was appointed personally 
 l)y Mr. Dunsmeir — Mr. Robert Dimsmuir. 
 
 Q. Thst is the late — .\. The late Mr. Dunsmuir, 
 
 Q. The late Mr. Robert Dunsmuir. Well, this Company was then in existence, the'^^ 
 Defendant Company? .A. This Company was then in existence. 
 
 Q. And what pfsitioo did Mr Robert Dunsmuir hold? A. He was the President 
 of the Company. 
 
 Q. And he appointed you to the position of Land Commiseioner of the E. & N. 
 Railway Company? A. Yes. 
 
 Q. Now, do you know whether or not t'lere wa-^ any resolution of the directors of 
 ilie Defendant Compiny appoirling you Land Commissioner? A. I do not. 
 
69 
 
 2l> 
 
 y. You were not umili.ir with the records of the Company? A. I had nothing to 
 do with that whatever, only personally with the President. 
 
 (J. Well, you entered upon the discharp;e of your duties as Land Commissioner? 
 A. Yes. 
 
 y. And were c.\crcising them on the 28th November. 1889? A, Yes. 
 Q. Who did you report to, or were you re(|uired to report to, exercisini,' the office 
 of Land Commissioner? A. Oh, I reported from time to time to Mr. Duiismuir person- 
 ,illy. 10 
 
 Q. That is during the late Robert Dunsmuir's lifetime you reported to him? A. 
 10 him, and afterwards to Mr. James Dunsmuir. 
 
 y. And afterwards to Mr. James Dunsmuir, who is now Vice-l'resident of the 
 Company? A. Yes. 
 
 Q. Now you sa>' >ou had no api)ointment under the seal of the Company as Land 
 ('o'iMnis.sioner? A. No, 
 
 ). Well, who defined your duties as such? A. The late Mr. Robert Dimsmuir. 
 
 ^. Ye-?. Verbally? A. Verbally. 
 
 Q. And that was the coalition of things on the 28th day of November, 1.S89, too? 
 A. In fact Mr. Robert Dunsmuir conducted and managed the affairs of the oflfire, so to 
 say, he kept rverything under his personal management. 
 
 Q. Practically Mr. Ftobert Dunsmuir managed the concerns of the Company? A 
 He managed the cimcerns of the Company. 
 
 (J. On the 28th November, 1889, at any rate, you signed this writing? I ju^t 
 produce it to you (handed to witness) A. Yes, that is my w riting. 
 
 y. This is the document marked Kxhibit "H' on the examination of the Plaintiff 
 taken yesterday. You say this is your writing then? A. Yes. 
 
 y. It is all in your writing other than the printed matter on it? A. Yes, all in my 
 writing. It is nil one writing. 
 
 Q. It is headed " Esquimalt & Nanaimo Railway Company, Land Department"? 
 A. Yes. 
 
 Q. that Land Commissioner is Land Commissioner of the Esquimalt & Nanaimo 
 Railway Company? A. Yes. 
 
 y. Yes. Do you remember the circumstance attending the writing, or signing 
 of this writing of the 28th of November, 1 889? A. Well, 1 have a faint recollection only 
 of it. I have a recollection of the district, of the tracts out there, and also Stark's claim 
 that was mentioned as the starting point; because there had been a great deal of litigation 
 between Stark imd a man called Scannell, that I 1 ad a great deal of trouble ard corres 
 pondcnce about; in fact they had some trial in regard to the land there, and I was well 
 posted up with regard to Stark and his location. 
 
 Q. Yes, where Stark's place was? A. Where Stark's place was. 
 
 30 
 
 40 
 
Q, Yes. But now, adverting to the time thai this must have been signed by you, 
 you do not remember then the plaintiff particularly? A. I do not remember the plaintiff 
 particularly. 
 
 O. No. A. I remember at about that time there were several locations taken up 
 there west of Stark's claim, at or about the same time — that were taken up there, outlying 
 west of it, outside of Cranberry District. 
 
 Q. Yes, but the description of the land. You remember where )'ou took that from, 
 or (lid you take it from the Plaintiff? A. I took it from the Plaintiff. 
 
 Q. Did he hand > oil anything to j/uide you in the matter? A. Yes, the descrip- 
 tion of the land was made out. from what he handed nic. 
 
 y. I think what he h Ended you — at least my learned friend put it in, ai ; I think 
 it was identified, at least ii v as referred to on the other examination, E.vhibit " A " (handed 
 to witness.) A. Yes, I ha\e seen this, and it was from this that I wrote out the de- 
 scription of the place that he wanted. 
 
 Q. That is Exhibit " .\ " in the other examination. But, as a matter of fact, Mr. 
 
 Trutch, vou made \o'.ir description a little more exact than that, did you not? A. Well, 
 
 ,,■>'' 20 
 
 I (Ion t know. 
 
 Q. Can you : )llow that one a J I read this? A. Yes. 
 
 Q. I will just read Exhibit " B," and Mr. Trutch is looking at Exhibit "A " (read- 
 ing descriiJtion of land). A. Yes, that s h' re. 
 
 O. Is it all there? A All here. The only thing is that 1 put in the distances, 
 which he wanted, 160 acres, and it says to contain on or about 160 acr"s. 
 
 O. You amplified this description? A. I amplified his description by putting the 
 length of the line. -,, 
 
 y. The forty chains? A. Yes 
 
 y. I see; that is the change you made? A Yes. 
 
 y. Now, you sjjeak here, Mr. Trutch, of commencing at a point about tu o miles 
 west of Louis Stark's Crown Grant? A. Yes. 
 
 y. What is Ihe meaning of tli: t? A. That is the descripton he cave mc. 
 
 y. But where was the starting point? A. 1 took the starting poii.i from the north- 
 west corner of Louis Stark's claim. 
 
 y. In your mind it occurred to you in that way? A. 
 
 Q. Did J ou have any plan before you at the time? A 
 District with Louis Stark's claim. 
 
 Q. I see; you do not give any course there at all? A. 
 
 y. About two miles west? A. West, yes. 
 
 O. What do you mean by west? A. 1 mean west. 
 
 Q. Due west? A. Due west, of course. 
 
 No. on the plan 
 1 had a plan of Cranberr>- 
 
 It sass w e.t. 
 
 40 
 
71 
 
 Q It says west of Louis Stark's Crown Grant, you see? A. That is the place, 
 west of Louis Stark's Crown Grant 
 
 Q. The Crown Grant would not be land? A. It is his Crown Grant in Cranberry 
 District; his Crown Grant of his land in Cranberry District 
 
 Q. Welt, now, I notice another point in here, in this application; r.o district is 
 stated — no, let me see, Cranberry District is stated. A Yes. 
 
 Q. And I see you inserted in Bright District in the — A. Well, those districts 
 west and south of Cranberry had never been sur\eycd, and they were ill defined, and that [q 
 is an error subsequently determined. Douglas District has been placed west of CranKtrry; 
 and in the description given, Mrigl.t is incorrect 
 
 Q. Yes. Well, as a matter of fact, there was ('oubt about their position at that 
 time? A. They had not been located or cfefinc 1, or publij.ed at all officiallj-. There 
 were no plans in the office of them laid out. 
 
 Q. And as a matter of fact, Douglas District is where Bright District was supposed 
 to be? A. Was supposed to be when 1 wrote that receipt. 
 
 Q. When you wrote this writing of the 28th of November, 1889. Well, 1 suppose ^q 
 it was intended that the land would be more clearly defined later. Was that your prac- 
 tice in the office? A. Yes, that was the practice. And where land was taken up with- 
 out any connection, in an indefinite manner like that, I was always an.xious to get them 
 surveyed as .soon as possible in order that we might have an account and icscription of 
 the country i.i the neighborhood, tor our own information, and also t lie able to locate or 
 sell other land in connection with them. The socier we could ge !t-m surveyed and 
 defined and the notes of them, so that we could place tlicm, the more desir Sle it was 
 
 y. Yes. Well, now, as a matter of fact, Mr. Trutch, you did requ all those ap- 
 plicants for land to tie on to some defined boundary in surveying their land, did \ ou not? 30 
 A. Well, 1 think — I cannot say that that was done in all instances I do not know. I 
 do not think that was done in all instances; 1 think there were some up at Comox that 
 were away west of the settlements. 
 
 O. But wherever it couki le done, it was re(|uired? A. Wherever it could be 
 done, it was required. 
 
 Q. Did the Plaintiff tell you when he came in — A P^xcuse me one moment in 
 connection with that. The following spring all the other pieces of land that had been 
 taken up in the neighborhood, amounting to five lots, were surveyed, and they were con- .q 
 nectcd with the district north by a line that was run down to them of three-quarters of a 
 mile from Harewood claim — the Harewood coal mine; I have forgotten the name of the 
 district — from the boundary post of the survey, that was made of the old Harewood Coal 
 Mine Company's there was a post that the survej or fountl, and number, and he ran south 
 irom that down to these claims belonging to Ross and Holm and Donahue — Mountain 
 District — that was the connection he made in that case. 
 
 Q. But at this time there Wns no definite survey to it? A. No better way of de- 
 fining the position than was given there. 
 
7a 
 
 (Oi uhan was given here. A. Tliat was in i.is own words, so to say: that was his 
 o*~D iaangiiiage that hi: had given me. 
 
 Q- Xowr, do you remcmf.er tliat the Plaintiff told yon at that time, No\einbCT 28th, 
 I SSjn, tihiil! he h,id erected a cabin, or was about to erect a cabin on the propert>'? A. 
 Xq. II aSioiPMt remember. 
 
 i<^, ("'rwa.s intending to erect a cabin? A. I do not remember. 
 
 iCJ.. Ofr whether he had been oti the ground? A. I do not remember t^al. 
 
 iO>.. (i)>f put a post in? A. 1 presume he told me he had been there, because he 10 
 t\eharjiiiiti(fl the place as commencing on the top of a ridge, and running — and therefore 1 
 ■iUfqaoHt tftat he must have been there on the ground. But as far as knowing whether he had 
 iis*Ti iftttmt. or supposing — that is the only thing I should have to guide me in fonning an 
 
 opirnnm urirPi regard to that 
 
 •(J*, And at the time it was as close a description as you could very well make? A. 
 
 The 'OBiIlr oflesciiption. 
 
 Q.. The only description. And you took from him $120, and the balance •» as to be 
 ;iaid inn accordance with this writing of the 28th of November, 1889? A. Ves. 
 
 '0». Dtci you give him any other evidence of the purcha.se or sale, than this writing of 
 the 2,f«Si) <oc November, 1889? A. No. 
 
 Q. Xo other writing evidencing the sale? A. I don't remember that I dkl. 
 
 Q. Sot that you know of. IJid you take any from him? A. I do not remember 
 
 t>ial 3 .(ffioL 
 
 Q. He did not sign anything? A. I do not think so; only that application. 
 
 iQ) T&e application is signed. I mean to say there was no other writing than this 
 
 aj^ucBJiiioni,. at it has been called? .\. Not that I am aware of, or remember. 
 
 •y. "Vcn. Was it the custom of the Defendant Company to take any, say. particular 
 
 agretameifflCa? A. No. 
 
 KA At the time of purchase? A. No, it was not. 
 
 <^.. Oj ijive an\- particular agreements of purchase? A. No, it was not 
 
 ^ Ct was not They had no printed forms, or anything of that kind?. A, They 
 
 had 1KB pBiaited forms. 
 
 30 
 
 •y*. \(0 forms settled by their solicitor? A. No. 
 
 O.. And it was not the custom to refer purchasers to the solicitor of the company? 
 
 iQ;- BVit you dealt u ith them >ourself? A. I dealt with them myseJi' generally. 
 s'lmeaiiiiBO. Mr. Dunsmuir dealt with them, in some instances, while he was alivci 
 
 ^- But the sales of lands were made by you, as a rule, I supp>ose? A. A» a rule 
 thty untBc maile by me. 
 
 40 
 
73 
 
 Q. I want to get at what knowledge the Defendant Company had of this sale? You 
 see this the plaintiff took away (Exhibit " B ")? A. Yes. 
 
 Q. Did you keep anything signed by him, or was there any writing in the books of 
 the company by you to show that the sale was made to the Plaintiff? A. I do not re- 
 member anything. 
 
 Q. You do not remember any. Well, did you make any verbal report of this sale? 
 A. Oh, there is an account of it in the cash book 
 
 Q. In the cash book? A. Yes. lO 
 
 Have you the cash book here? A. I have not. 
 
 You say, Mr. Trutch, there was an entry made in the cash book? A. Yes. 
 Do you remember whether it is in your writing? A. It is in my writing. 
 And that showed the sale to the Plaintiff of this land, did it? A. Yes. 
 Do you think there was entry made in any other books by you. A. I do no^ 
 
 Q- 
 
 y. 
 
 Q- 
 Q- 
 Q 
 
 think so. 
 
 Q. What record did you keep of this sale, Mr. Trutch? This you gave to the ^^ 
 I'laintiff, this exhibit of the 28th of November, 1889? A. Yes: 
 
 Q. What did you keep amongst the records of the Company? A. 1 kept a copy 
 of this. 
 
 Q, That is, you had a copy of this? A. Yes, 
 
 Q Made by yourself? A. Made bv myself. 
 
 Q. What was your habit and custom 'n the office with respect to each sale of land? 
 Did you have a packet covering each sale of 'and made, covering the documents or evi 
 (iences of the sale having been made? A. No. I had a file of applications in each dis-^o 
 trict. 
 
 Q. Yes? A. Pigeon-holed. 
 
 Q. Pigeon-holed? A. I kept them in order of dates, the applications. 
 
 y. And you dealt with this one in the same way as you did with the others? A. I 
 dealt with them in the same way as the .others. 
 
 Q. And in that pigeon-hole, for mstancc, in this case there was a copy of this agree- 
 ment, writing of the 28th of November, 1889? A. There was a copy of that, yes. 
 
 Q. Will anything else be fourd there? A. There was that application and the40 
 copy of that. That application would have been with it. 
 
 Q. And a copy of this writing of the 28th of November? A. And a copy of that 
 writing with it. 
 
 Q. Would that be all? A. That would be all to the best of my recollection. 
 
 Q. And you do not recollect in making any entry in any other book except the 
 I ash boot A. I do not recollect making any entry in any other book but the cash book 
 of that. 
 
74 
 
 lO 
 
 Q. According to your custom at the time you would not make any other entries, is 
 that it? A. I wouhJ not make any others. When the lot was surveyed then I would 
 enter it here in full, in full length, with an account of the number of the grant, and the date 
 of it, and the payments in full on account of it, in this district register. At the same time 
 it would be entered in the sales book. 
 
 O. Rut, as a matter of fact, you did not make any other entry with respect to it? 
 A. I did not make any other entries. 
 
 Q. Than as appears on page 59? A. When it remained in ;m informal state like 
 this case was. 
 
 Q. Now, we will go to another matter. The sale made to the Plaintiff was upon the 
 terms set forth in this writing of 28th November, 1889? I mean to say there were no 
 terms of occupation or anything of that kind, He was to pay $3 an acre. A. There 
 was no terms of occupation. 
 
 O. That is, he was not bound to go on and build a house and occupy the property? 
 A. No. 
 
 Q. He did, though, as a matter of fact, go upon the property and build a house, did ^^ 
 he not? A. That— doing away with the obligau.in of residing on the land was made 
 with a view of the increased price. 
 
 O, From $1 to $3? A. Fn.m $[ to $3— well, $2 to.$3, I think it was. 
 
 Q. At any rate that was the fact? A. In order that the claimant might not be 
 hound to reside on the land, that he should be free to go away and work and make money 
 elsewhere. That was the idea in relieving him of obligation of continued residence on it. 
 
 Q. There was to be no continuou-^ occupation? A ■ No continuous occup.ition. 
 
 Q. But, as a matter of fact, this claimant did go upon this property, did he not, and 30 
 build a house? A. I do not know anything about that. 
 
 Q. Did you become aware of that? A. I have never seen the plaintiff since that 
 transaction, to the best of m\- recollection. 
 
 Q. And you don't know whether he did that or not? A. I don't know whether' he 
 did or not. 
 
 Q. He was at perfect liberty of course to do it in this writing of November 28th? 
 He could go into possession of the property, could he not? A. I assume so. 
 
 O. Well, was that part of the agreement. He was to be at perfect liberty, was he '* 
 not, as a matter of fact, as far as the Company was concerned? A. Well, I don't know; 
 1 am not a lawy r, you arc asking a legal opinion on that. I only know of what — 
 
 Q. Then you say that the agreement has to speak for itself then? A. I suppose so. 
 
 Q. Well now, did the Defendant Company, the E. & N. Railway Company, act 
 wholly through Mr. Dunsmuir at this time, say November 28th, 1889, or were there any 
 directors of the Company? A. I really do not know; I believe there were; I think they 
 had - I think I heard of their being meetings held here, half yearly, or yearly. 
 
lO 
 
 75 
 Q. Throughout, Of about that time? A. At or about that time, yes. 
 Q. Do you know Mr. Tnitch whether these land sales were brought under notice of 
 the directors of the Company in any way? A. i do not. 
 
 Q. You do not know whether it was done or not? A. No. 
 
 Q. Well, I suppose the money received would be brought under their notice any 
 way — was it not? A- Well. I would think so. 
 
 O. You w ould think so? A Yes. 
 
 Q. At any rate you »l id not attend Hoard Meetings? A. It did not come within 
 m> — 
 
 Q. You never attended any Hoard Meeting? A. 1 never attended any Hoard 
 .Meeting. 
 
 Q. Or advised any of the Directors what had been done? A. No. 
 
 Q. .Save advising Mr. Duasrnuir? A. Except Mr. Dunsmuir. 
 
 Q. Arnl as you said before, Mr. Dunsmuir reallj acted for the Comi)any? A, Mr. 
 Dunsmuir really acted for the Company. 20 
 
 y. When did you go out of the employ of the Defendant Company? A. The 
 end of September, 1891, wasnt it? A. Yes, I went home in 1892; the end of September, 
 1891. 
 
 Q. And up to that time you cont nued to exercise jour office of Land Commis 
 sioner? A. Yes- 
 
 y. And throughout that time you do not remember having any negotiations with 
 the PlaintifiT? A. I do not. 
 
 Q. 1 do nr* th;nk there were any anyhow. Well now, outside of that piece of 30 
 property you referred to. Mr. Wardroper, during your time of oftice, sales of land were 
 made by you? A. I think all the land sales were to the best of my recollection. 1 may 
 !iave omitted — forgotten the transaction. 
 
 Q. At any rate if there were any they would have been brought to your notice? A. 
 They would have been brought to my notice because they would have to pass through 
 my hands, I wouW have to receive the survey notes of them, and make out the deed. 
 
 Q. And at present you only recollect that one case. A. I only recollect that one 
 case. 40 
 
 Q. The Wardroper case. Now, did the directors intervene in any way in connec- 
 tion with the sales of land? Did they take any active part in selling the land? A. Only 
 in directing the — In varj-ir.jr the amounts of land that might be sold and the price. 
 
 Q. Yes, that of course you .vould get from the directors? A. From the directors. 
 i n case there was a large amount applied for, I should refer it to them. 
 
 Q. But outside of those points you had authority to sell the land of the Company, of 
 course. A. I understood so. 
 
76 
 
 lO 
 
 20 
 
 y. That is, you did not have to go to the directors to ({ct their lUthority? A. No 
 Not ns long as I conformed to the general instructions that I had. 
 
 Q. And who gave the evidences of sales, suih as this for instance, this writing of the 
 jSth of November, i.S8g? Was it ;ilwaysdone by you?. A V\'ell, I am not certain whether 
 It was done by me. I don't remember now, there might have been a few cases where 1 
 was absent, that someone else iniglit have — Mr. Ilaminond who w.is in the office therefor 
 several years, and died shortly before I left, he might have received — made a payment and 
 signed it for n e. 
 
 Q. Hut unless the directors varied the particular lands to be sold, and the price, you 
 were the officer who executed the sales. A. Yes. 
 
 y, That is to say, none of the directors used to execute any of the agreements for 
 sale of land, and affix the seal, for instance, of the Compimy to it? You do not know of 
 any? A. I do not know of any case. 
 
 Q. Or of tho directors signiiv; the agreement of sale themselves? A, They sold a 
 lot of land to the milling and lumber company with which I had nothing to do. 
 
 Mr. I'oolev: Q. If you had not sold it, you are making a mistake? A. What I 
 mean to say was — there was ^ome — I had nothing to do — all I want to do is to disclaim 
 any connection .•iih that transaction. It never came through my hands. 
 
 Mr. McPliillips: Q. It was not the practice of the directors to make an agreement 
 for sale, ami affix the seal of the Company to it? A. No. 
 
 Q. Atid your notion is that all land sales came under your jur sd ction, or would be 
 brought to your notice? A. Had to be brought to my notice, because I issued all the 
 deeds for them; made them out in every in.stance. 
 
 Q. That is at the end in fact. You would know then whether any sales had been 
 made in the way I suggested? A. I do not know of any instance; never heard of any. -^° 
 
 Q. No. The sales were made through you. You said before you did not know 
 whether the Plaintiff went into possession or not? A. I do not know. 
 
 Q. Hut as far as the Railway Company was concerned, he was at liberty to take 
 possession of the land after he paid the $120? A. Of the lands described there. 
 
 Q. Yes. Now who was to survey this land according to you' idea of the matter, 
 
 Mr Trutch? I mean the particular survey of this land waste be made by the Plaintiff? 
 
 A. Was to be made by the Plaintiff 
 
 40 
 Q. That was understood? A. Yes, according to that description — in accordance 
 
 with that description. 
 
 Q. The land you say was to be surveyed late" than the 28th cf November, 1889, by 
 the Plaintiff? A. By the Plaintiff. 
 
 Q. And it was to be srbmitted to the Company for their approval? A. The sur- 
 veyor would get the description of it from me; I should instruct him. 
 
 Q. But as a matter of fact you did not do so in this case? A. As a matter of fact, 
 1 did not. 
 
77 
 
 lO 
 
 20 
 
 Q. Now, Mr. Trutch, I will refer you to the application again. You sec in this 
 iipplication it says " Commencing at the top of a ridge and running west to Berkeley's 
 Creek, thence south down Berkeley's Creek to a corner post at a swamp; then east, then 
 north to the *op of the ridge at the place of commencing." Now, you know the po.st had 
 beer deposited in the land that the Plaintiff had been purcha^^ing? A. I did not know 
 that. 
 
 Q. It was in this writing here? A. I know that he stated it. 
 
 Q. That statement was made to you? A. That statement is there in writing. 1 
 made out the description from that because I saw that. 
 
 Q. Your intcr.tion was to give him the land that he had in this application described, 
 wasn't it? A. Yjs, if it was vacant. 
 
 Q. If it wis vacant. You did not intend to give him some other land? A. I did 
 not intend to give him any other land. [ intended to give him the land he described and 
 applied for. 
 
 Q. Yes. Well now you .-^"cm to lay some stress on " 2 miles west of Louis Stark's 
 Crown Grant?" A. It is there in the pa[)cr. 1 do not mention it. 
 
 Q. Who put it there? A. He did in his application. At the heading you will 
 sec. 
 
 O. It says, "about 2 miles west of Stark's [ilacc;" it does not say other than :hat? 
 A. Well. 
 
 Q. About 2 miles west of Stark's place. Do you want to bind the Plaintiff down to 
 the exact astronomical bearing of west? A. I suppose when he sa\ s west, he nicans 
 west, and when he says 2 miles he means 2 miles. 
 
 Q. l?ut he said \' est of Stark s place, west of the place, where would it be west of, .,q 
 the southern boundary, west ol the northern boundary, or west of the ccrtre? A. Well 
 ■t is in effect — I have taken the most northern — I took the northwest corner of Stark's 
 claim. 
 
 Q. What made you do that? I see nothing in these writings to show that. Noth- 
 ing in the application of the 28th of November? A. Well, I suppose in .igreement w th 
 him at the time, that is the only t'ling that I could suppose why I took that instead of 
 the southwest corner. 
 
 Q. Well, your notion of the matter' is — A. Instead of the southwest corner 1 
 took the northwest corner; I don't know why 1 did now; probably he said that would be"* 
 the correct post, the one from which he — 
 
 Q. That is only your recollection? A. That is onl>' my recollection. 
 
 Q. These writings do not say from what ,-oint \ou are to go from Stark's place; 
 they merely say west of Louis Stark's Crown G'^ant? A , Very well, you take the I'lost 
 western part of it in startin^; from it. 
 
 Q. But you need not necessarily go to the northern? A. If I said west of Louis 
 Stark's claim, I would not gc to the eastern boundary. 
 
78 
 
 Q. No, not to the northern, or southern, but ynu might measure from the south- 
 western boundary, or from the northwestern boundary? A. I might; in effect 1 took the 
 most northerly boundary. 
 
 O. But that is only a recollection of yours; that is not is these writings? A. What 
 is a recollection? 
 
 y. There is nothing in these writings to tie )ou on to tlie northwest boundary? A. 
 No, not to the northwest boundary any more tlian southwest boundar)'. 
 
 Q. Now, is there anything so severe in these documents, Mr. Trutch, but what the j^ 
 variation of" west, might be a little northwest? A. North might be northwest, or north; 
 1 have heard people make the most extraordinary variations, it might have been south- 
 west or south, he might have intended. 
 
 Q. However, going back to the subject matter, the idea was to give him the land he 
 applied for? A. I could only describe it as according to his description; which I think 
 yoj will agree he fairly— which you must admit is fai.'.y in agreement with his description. 
 
 Q. 1 see one point of difference? A What is that? 
 
 Q. You did not say anything about a corner post, and that is one thing which is cut ^^^ 
 off? A. Which corner post? 
 
 Q. The corner post at a swamp it says; thence cast, then nortli, to the top of a 
 ridge? A. Yes. 
 
 Q. You left all about the po.st out? A. Well — 
 
 O, You knew at the time — at least he stated to you, as you say in this writing, that 
 he had put a post in? A. 1 say that he put a post. 
 
 O. It says here? A. That is his writing. 
 
 Q. Yes, according to your own statement; you do not know w hether he did or not? 3° 
 A. 1 do not know whether he did or not. 
 
 y. He said, "Thenc- south to a corner post at a swamp." A. He was not allowed 
 to run the boundaries in any direction he might and claim it an\- length; it was under- 
 stood and I told all settlers, they all knew, and 1 told them, that the claims were to be 
 half a mile square, 40 chains by 40 or else 20 by So, so as to make the tracts uniforn, and 
 that they could be joined together regularly; thcr'ifore, having commenced at his starting 
 lioint, I say there that it should be 40 chains south, 40 chains east, north and west, to the 
 place of commencement. 
 
 Q. But it was not >'our intentio;i to give him other land than what he had been on. 
 1 suppose? The man had been on the property and put a post i ? A. It was my inten- 
 tion to give him the land he applied for; ! d!l not know what he had been on, or that 
 lie had been on any. 
 
 Q. It was your intention to give him the land he applied for. But I thought you 
 were laying stress on the fact that this Plaintiff is now contending for land tlat this agree- 
 ment did not refer to? A. No, I have nothing to do with that. I have not >,aid any 
 thing with regard to that, I don't think. 
 
 40 
 
79 
 
 <Q|" I just wanted to find out whether you — A. You were asking me about the 
 posanam of this land aid the description of it. that is what I was — for instance, he says 
 thfire ortft regard to the description of the land commencing from a post, then going south. 
 east, w«st and north; I have no doubt that I settled the form of that with him personally 
 at liht iS-me. as to whether it WaS to be half a mile square, a quarter of a mile or fk) chains. 
 F'r lifwiljescrtption there does not say in what shape the land is, whether it was to be an 
 obloitiig (or a square. 
 
 'Ql As a matter of fact at that time and for a long time subsequentlj' the particular 
 -[tTopiSt^ thnt was develo])ed or survcj'ed was more or less in doubt? A. It was in 'o 
 
 doniit. 
 
 iQ".. Xflw did the Company or its directors e\er raise any objection about that sale 
 made iM) Mr. Hobhs? A. No. 
 
 Q.. They never did Hai'c they questioned it now? A 
 fhey Hnaue- or not raised a cjuestion about it; not to me. 
 
 I don't knc-w whether 
 
 20 
 
 LEOXARD HOLLIS SOLLY, being duly sworn, testified. Examined by Mr 
 
 Mcpa[Biii%». 
 
 i<J Vour name? A. Leonard HoUis Solly. 
 
 tQ>.. v.^ hen did you enter the employ of the Defendant Conipan\'. the Esquimalt and 
 TtJaaiHBiHiioi Railway Company? A. July, 1887. 
 
 iCX .And you have been continuously in the Company's employ until now? A I 
 
 haiit 
 
 30 
 
 'Ql And you are now, employed by them? A. And am now. 
 
 «2l Your ofifice in respect of the Defendant Company, is that of Land Commissioner 
 
 now A., ft is. 
 
 'Q). How long has that been? A. .Since May, 1894. 
 
 iQl You succeeded Mr. T. S. Gore, did \-ou not? A. 1 did. 
 
 1(2'- A* Land Commissioner. Mr. T. S. Gore, is not now in the employ of the De 
 fendaafi Company? A. He is not. 
 
 ^.. Well now, in what department were you on the 38th No\ember, 18^9? A [ 4^5 
 " av^ am at«HHtant dr; ftsman, and bookkeeper, in the Land Department. 
 
 O. The Land Department of the Esquimalt and Nanaimo Railway Company? A. 
 
 F squioaartt arad N. n .>"o Railway Company. 
 
 Q.. And what vui! .• -ome under your notice acting in that capacit)? A AH re- 
 cetptt* ;gpmm for land sold and money received under the pre-emption record system 
 
 iQl Well, did any sale of land made to Frank Vicker Hobbs come under your 
 'icitioe? A From time to time. 
 
8o 
 
 Q. And diti you make any entries relative to it? A. 1 did; I entered the sale in 
 the Land Sales Hook. 
 
 Q. You might open the book where you made sonie entries the-e. A. (Doing so.) 
 That is the entry of the receipt which you hold there; Lot 6. 
 
 Q. Just please read what is written there? A. 1 gave it the next lot number, six, 
 Lot 6, at the time. Number of lot, Lot 6. 
 
 Q. It is first headed Bright District, isn't it? A. Hright District, yes. Date of 
 purchase, 28th of November, 1889 Name, Frank Vicker Ilobbs. How acquired, pur- ,y 
 chase. Acreage, 160 acres. Price, $300. Terms, of payment and date when ))aid, 
 first payment. 
 
 Q. Date when due, isn't it? A. Date when due, yes; first paj'inent Date when 
 paid, 28th of November, 1889. Certificate or payment number no number. Amount 
 paid, dollars and cents, $120. Remarks, balance in three yearly payments of $120. In- 
 terest at 6 per cent. 
 
 O. That was your entry. A That was my entry. 
 
 O. That gives the date of course? A. Most probably I entered it at the time, ^o 
 
 Q. The same day? A. Not necessarily the same da)', I might have entered up 
 two or three sales at the same time. I might have had them handed to me the same day. 
 
 O. This book 's cdled what? A. Land Sales E. & N. Railway Company. 
 
 O. Well, is there any other entry in that book relati\e to this land? A. There is 
 
 ijnilicating it). It was eventually discovered that this land was not in Bright District at 
 
 all, but that it was in Douglas District, and I made an entry here, Transferred to Douglas 
 
 District, folio 87; from page 95. 
 
 30 
 Q. What do you find at page 87? Just read it. The same heading. A. Name 
 
 iif lot. Lot 6, Douglas District. It is ami exact transfer of the same entry as before. 
 Date of purchase, 28th November, 1889. Name of purchaser, Frank Vicker Hobbs. 
 How acquired, purchase. Acreage, 160 acres. Price, three dollars. First payment 28th 
 November, 1889. 
 
 Q. If you will permit me, the balance is i)ut in there too, isn't it? A. Certainly, 
 
 Q. I would like you to be particular about it; read the heading and give all the 
 entries that appear there? A. Balance, date when paid 29th April, 1896. Certificate of 
 |)ayment number 864. Amount $360. Six years' interest same date, and receipt of the"* 
 same number, $129.60. Title fee, same date and same number, $10. Total, $619.60. 
 Conveyance of title number 302. Date of issue, 1st May, 1896. 
 
 Q. I see that is headed at page 87, Douglas and Dunsmuir Districts? A. It is; 
 Dunsmuir is put in because there is no separate room in this book for Dunsmuir District; 
 and therefore one entry here is in reference to a lot sold in Dunsmuir District. 
 
 Q. Now I see. Those are all the entries? 
 erence to that in this book. 
 
 A. Those are all the entries with ref- 
 
was 
 ercd 
 
 ra!l( 
 
 nboi 
 was 
 
 an ( 
 
 tific 
 
 six? 
 tha 
 thai 
 Dm 
 
 Dis 
 
 p!e; 
 
 Ye< 
 
 tior 
 call 
 Lol 
 
 wo 
 
 rcg 
 
 cnt 
 Hi 
 
8i 
 
 0. In the Land Sales Book. And they were made— did you tjivc the date that it 
 wa.s transferred? A. I do not know when it was transferred. When ever it was discov- 
 ered that the land wa.s not in Hright District, but in Douglas District, my attention was 
 ( ailed to it by Mr. Dunsmuir. 
 
 Q. Can you tell about what time it was made by the entry? A. I can tell you 
 
 about when it was made, becau.se here was land sold to Mary Wilsoni on the I 3th Novem- 
 
 I'cr. 1891, you sec, and she was given Lot number five. So that the next number that 
 
 was taken was six. It must have been after that date that the transfer was made. 
 
 10 
 Q. it was sometime after? A. It was sometime after November 1891 
 
 Q. Yes. A. That this transfer was made. Otherwise it would have been given 
 .\n earlier number. 
 
 Q. Yes. Now dealing with this property again, you speak of a title number— cer- 
 tificate of title number? A. Yes. 
 
 Q. Was not this sale to Hobbs found to cover some other propertj- as well as Lot 
 six? A part of the property is in Doughs Di.strict, and part of it is in Cranberry; but 
 that portion of C ran terry was unsurveyed. It was not surveyed into ranges and sections, 
 that portion of Cranberry District. Therefore the greater portion of the property is now in 
 Douglas District, the whole property v as called Lot si.\, Douglas District. 
 
 Q. Hut a portion of it was found to be Lots ten and eleven, Range eight. Cranberry 
 District? A. I never knew that. 
 
 Q. Does not that conveyance read that way. A- Let me sec the conveyance, 
 please? It is simpK' called Lot six, Douglas District, here. 
 
 Q. In your conveyance you merely described it as Lot si.\, Douglas District? A. 
 Yes. If Cranberry District had ever been s;;rvc\'ed into ranges and sections and the sec- 
 tion lines had been contracted from where they now remained, then it would have been 
 called Sections ten and eleven. Hut that had never been done; and it is simply called 
 Lot six. 
 
 Q. As far as the Defendant Company is concerned, they treated it all as being Lot 
 six, Douglas District? A. Yes. 
 
 Q. Although you say that if there had been a complete survey — A. Then it 
 would have been necessary to describe a portion of that property as Sections ten and 
 eleven. Range one, I think it is, Cranberry District. 
 
 Q. That is the explanation? A. Yes, 
 
 You have no book covering Cranberry District, have you? A. I have the 
 
 30 
 
 40 
 
 register. 
 
 Q. I mean you have no entry, say under the heading of, under Lots 10 and i i no 
 entry with respect of Frank Vicker Hobbs? A, I think not. I will turn up Cranbc. 7 
 District (doing so). No, there is no entry of Hobbs. 
 
 Q. You do not find any entry in the Cranberry District of Hobbs? A. No. 
 
83 
 
 Q Well now, <Io you know when the Plaintiff, Hobbs, came first under your notice? 
 Of course you made that entry in the book here at the time of the sale? A. Yes. 
 
 Q. You were mA present when the sale was made with Mr. Hobbs? A. No 
 
 Q. That «a* Mr. Trutch. You did not take part in that in any waj? A. I did 
 not. 
 
 Q When did the Plaintiffs p'ropei'ty come under ) our notice for the first time, 
 other than your et:tr>' m the Land Sales Hook? A I lis property? 
 
 Q. Yes. A. At the time the coal discoveries were made in Douglas District, .Mr \i> 
 Dunsmuir sent for me and asked to see a plan of ail land that had been sold or taken u,. 
 in that neighbourhood. 
 
 O. When would that he? Do you know what year? A. That would be in 1895. 
 
 Q. 1895? A 1895. 
 
 y. Just before we go into that, Mr. Soil)', now that hook that we were referred to. 
 
 that Land Sales Kooi«. what was the usual place of custody of that book? A. In the 
 
 vaults. 
 
 20 
 
 y. In the vault of the E. & N. Railway Company? A. Yes. 
 
 Q In their office? A In their office. 
 
 Q. Which was then on Government Street? A- Yes, corner of Government and 
 Hroughton Streets 
 
 Q. I aske<i Mr. Tratch when the directors had meetings ami one thing and another 
 — do you recollect -.vhcther the di ctors took any active part as tf) what sales had been 
 made? A. Xever. 
 
 (J. They did not? .V Never. 
 
 y. Hut sti?3, the books and papers were there to be seen? A. Certainly. 
 
 y. No*', I show you Exhibit '• G " in the other examination (handctl to witness). 
 This is not your inrtting of course; but I suppose you are familiar with your predecessors? 
 A. That is my writing, everything e.xccpt the signature. 
 
 y. I see. That is all right then. I show you this E.xhibit "G" to the examina- 
 tion of the Plaintiff? A. Yes. 
 
 Q. -And you recognize the writing on it as \'ours? A. I do; 1 filled out that ^ 
 notice. 
 
 Q, Other than the signature? A. Yes, it is signed T. S. Gore, Land Commis- 
 sioner. 
 
 Q. Are you accustomefl to the signature of Mr Gore? A. Yes. 
 
 Q. You have seen him write? A. Yes 
 
 y. And that is his signature? A. And that is his signature, yes. 
 
icpt 
 
 cvci 
 pun 
 
 llHIl 
 
 triiM 
 
 It St 
 
 Sail 
 
 l)CC 
 
 not 
 tie 
 
 to V 
 had 
 
 (lOI 
 
 wril 
 
 oft 
 fam 
 
 Yoi 
 in c 
 
83 
 
 y. And there is oik; of Febr, ary 1 5tli, 1X94? A. That is also in my writing ex 
 ci-pt the signature. 
 
 O. I'his is Kxhibit " H " "f the cNainiiiatinn of the plaintiff? A. Ves. 
 
 (J. And you also recognize Mr. Gore's signature? A 1 do. 
 
 y. Yes. Now )'ou say these notices were filled out by you? A. Yes. 
 
 (J. Do you know on uhose instructions ><iu prepared those notices? A It is 
 \ery likely that 1 did not prepare them on any special instructions; it was my custom 
 (•\ery year, or possibly twice a year to make out statements (if that sort and send to all U) 
 purchasers who were in arrears as regards their payments, and they would simply be 
 handed to the I.and Commissioner for his signature, and then posted. 
 
 Q, Yes, I see in these notices the land in question is called Lot si.x, Mright Dis- 
 trict? A. Yes, that was before the transfer was made, you see 
 
 Q. 1893 or 1894? A. Weil, it still stood in Uright District; that is evident that 
 it stood in Bright District Book here. 
 
 Q. You took your informatio 1 from the Bright District — A. Front the Land 
 Sales Book, Bright District. 20 
 
 Q. That would be page 95? A. I'age 95, yes 
 
 Q. The transfer entry could not have been made .it that time? A. It might have 
 been, it might ha\ e been in two places, you see. And very probably these notices v ere 
 not made by reference to this book at all, the Land Sales Book, but would be taken from 
 t) e previous schedule of notices that were made. 
 
 Q. You had schedules of notices A. I had schedules of notices, with the names 
 to whom they were sent to, and the previous schedu'e to that would show that no money 
 had been paid, and therefore the full balance was due. 30 
 
 Q. Now, I show you F.xhibit " D " of the examination of the l^laintiff, letter of Mr. 
 (lore to Mr. Hobbs (handed to witness], d.itcd 6th of April, 1892. Do you recognize the 
 writing there? A. I do. 
 
 Q. Whose writing is it? A. T, S. Gore's. 
 
 Q. T. S. Gore's, styled Land Commissioner. He was then the Land Commissioner 
 of the Defendant Company? A. Yes. 
 
 Q. Now, he says in that (reading the letter). Now, as a matter of fact, were you 40 
 familiar with the tr.icing that was sent to Mr. Hobbs with this letter? A I was not. 
 
 Q. You were not. I show it to you? A. 1 saw it in _\our office last eveni' g; I 
 never saw it before to my knowledge. 
 
 Q. This is Exhibit " E " to the examination of the Plaintiff (handed to \< itness). 
 You do not recognize this? A. No; I recognize this as having been taken from a plan 
 in our office, but I never saw this before. 
 
 Q. You never saw this particular exhibit before? A. No. 
 
in a 
 189, 
 
 bein 
 
 duti 
 
 to 11 
 
 <ii)n 
 
 bool 
 
 Bon 
 mor 
 
 ■,i m 
 
 it h< 
 
 '"« 
 
84 
 
 Q. Well now, did the Plaintiffs purchase conic under your notice after these letters 
 in an\- way that I have referred you to, this letter of Mr, Gore's was the 6th of April, 
 i8g2. a id you sent out notices in June, 1^93, and Februar\-, 1894? A. Yes. 
 
 Q. Now. did you come in contact with the plaintiff conseijuent upon these notices 
 being sent out? A. No. 
 
 Q. You did not? A. No. 
 
 Q. Was the matter of the plaintiffs purchase brought up in connection with your 
 iluties in the office of the Defendant Compan\' at all? A. It 'vas. jq 
 
 O, Was it brought up by any application of the FMaintiff? It was. 
 
 Q. .And what was that? .\. To complete the purchase. 
 
 Q. An application wa.s made by the Flalntiff? A. Personnllw 
 
 Q. Personally? A. Personally, to comjjio*^ the ])urchas{\ 
 
 Q. Personally, to complete the purchase; was it made to you? A. It was made 
 to me. 
 
 y. And where was it made? A. In my office. -q 
 
 Q. In your office, which then was where? A. The present offices of the Company, 
 on Store Street. 
 
 Q. And that was the first time you came to know the Plaintiff? .\. It was. 
 
 Q. Did he make him.self known to you? A. He did — or I asked him his name. 
 
 Q. He came down there and )ou asked him his name? A. Yes. 
 
 O. What did he say then? .\ He said he wished to complete the purcha.se of 
 some land that he agreed to buy. He either said Bright District or Douglas District I 
 don't remember which. 3^ 
 
 Q. Can s'ou give the date when that wk^, A. In November. 1895. 
 
 Q. And what did you say in answer to that? A. I said to him — I referred to the 
 books — I referred to this book (indicating). 
 
 Q. You referred to the Land Sales Hook? A. 1 referred him to the Lands Sales 
 Bonk, and 1 said, Mr, Hobbs I am not prepared to accept the balance of this purchase 
 money without referring the matter to Mr. James Dunsmuir; and I said " If you will wait 
 a minute I will see if I can see him." 
 
 Q. Yes? A. I went to see Mr. Dunsmuir, and 1 took the plan in showing the** 
 position of Mr. Hobbs land in Douglas District. 
 
 Q. And do you remember what plan you took in at that time? You have not got 
 it here with you? A. I ha\e not got it here, a plan of Douglas District. 
 
 Q. Did you indicate on the plan where his property was? A. I did. I was till- 
 ing you previously that I had. 
 
 y. Previous!)- you had? A. Mr Dunsmuir. , 'heii this coal was first disc<ivered 
 he sent for me to find out what land had been sold, or agreed to be sold in this Douglas 
 
Dist 
 
 Vcs 
 
 sent 
 and 
 con: 
 \vis( 
 
 of 
 writ 
 An( 
 strc 
 
 thoi 
 yes. 
 
 not 
 Mn 
 
 <lat 
 
 he 
 see 
 
85 
 
 District, in that neighborhood of this claim, and ihen the matter was talked over between 
 myself and Mr. Dun^mu r with refercnre to this j)roperty. 
 
 O. When would that be about? A. 1 think it must have been the same year. 
 
 Q- '895- A. A month or so previously, or jjcrhaps more. 
 
 y. A month or so j)reviously to November? A. Yes. 
 
 O. That is Mr. James Dunsmuir you are speaking of? A Ves. 
 
 y. Was it told to him that one Hobbs had bought land in ,hat neighborhood? \. 
 \'es, and we considered he had abandoned it. '" 
 
 Q. You referred to these notices of June, if^93 — A I said that notices had been 
 sent lo him from time to time, requesting the payment of the balance and interest due 
 and that no notice had ever been taken by Hobbs, and that as Hobbs lived ' i Victoria I 
 considered in all pvobability he had abandoned ,-'11 title and interest in the claim, other 
 wise 'v: vc'uld have come down to the office and tried to make arrangemeits to hold it. 
 
 O. How did you happen to know hf' was in Victoria, Mr Soll>-? A. Because in one 
 of the schedules of notices which I have in my office, against his name, in Mr. Gore's 
 writing is " Vict." When notes are put to that effect it is to address the party there. 20 
 .And I looked up Hobbs' address in the directory and found it somewhere on Douglas 
 street, keeping stores there. 
 
 Q. That information was obtained pre\ inus to those notices having been .sent out? 
 A. Ye.s. 
 
 (J. And this is what you discussed with Mr. Dunsmuir at that time, that you 
 thought he must have abandoned this property? A. Must ha\e abandoned this propertyi 
 yes. 
 
 Q. So that when he came in you said you would have to consult Mr. Dunsmuir 30 
 about it? A. When he came in I said I would have to consult Mr Dunsmuir about it. 
 
 Q. And did you do it? A. I did, while Mr IIol)l)s was waiting. 
 
 O. At that time? A. At that time. 
 
 Q. And what took place? You went and discussed the matter with Mr. Dunsmuir: 
 not in the presence of the Plaintiff? A. No, he remained in my office, I went into Mr. 
 Dunsmuir's private office. 
 
 Q. That of course is hardly evidence what took place. Now . cannot you fix that 40 
 date in November more closely than just November, i^g^f A. No. 
 
 y. You cannot fix it more closely? A. I cannnt; it might possibly not h.ive bee-; 
 November; I could not swear it was November. 
 
 y. Hut your recollection now is that it was November? A, I think so, yes. 
 
 O. You did not come to any agreement? A. .\'o, Mr. Dunsmuir was not in when 
 tic came down. I could not tall the matter over with Mr. Dunsmuir at that time. I did 
 sL'i; Mr. Dunsmuir about it afterwards, and he instructed me to write to Mr. Hobbs and 
 
86 
 
 c^ate tbac the Company was |)rcparcil to issue a con\e>'ance to him on the compSetion of 
 tilt puncftatiff, r think within two months, and having the land surveyed. 
 
 if«. And you wrote this letter, Exhibit I, in the Plaintiff's examinaticsi handetl to 
 witne»i? A. Ves, I wrote that niy.self. 
 
 iQ). iD«ted March 2nd, 1896, and signed by \oii Leonard H Solh', Latxl Commis" 
 'iioner* A Y^- . 
 
 O' Addressed to Frank Vicker Hobbs, Victoria, B.C:? A Yes; 6th March. I went 
 t' ' 4iec ibsH in February, yes. 10 
 
 '^t. Then after seeing Jnmes iJu smuir — I think he is Vice President? A He is 
 Vice PusHirfentof the road. 
 
 Q You wrote the letter of March 2nd? A After seeing Mr. Dunsmuir. He 
 said, ■We may as well let him have the land; if we want it eventually we can take it if 
 wf wsat to " 
 
 ^2- And under his instructions you wrote that letter? A. Ves. he told me I could 
 wTiteto Sflir. Hobbs and tell him he could complete the purchase. 
 
 O Well, did Mr. Hobbs, the Plaintiff, complete the purchase within the term.s of 20 
 the tattttir, F.xhibit I. here? A. He did. 
 
 "Q" And made the payment recjuircd? A Yes 
 
 <(^.. Thar was $499.60? A. I think so, yes. 1 wrote to him just before the cxpir- 
 atioo 'ntftaait two mortli-i calling his attention to the fact that the two months wouIJ ex- 
 pire — (lioiawoid a further complication. 
 
 An Bequest of Mr. McPhillips Mr. Poole\- produced K-tter. 
 
 i<2' Handed to witness). You got this letter, did you not, dated loth April, 1896? 
 
 A a ufeL 30 
 
 Q. Addressed to you? A Yes. 
 
 Q.. As Land Commissioner, signed by the Plaintiff? A Ves 
 
 Q.. Well, he said in that letter — l" reading lettc r). 
 
 Tilw letter was marked Exhibit No. 1. 
 
 1^ Well now you did get plans and survey from Mr. Priest did you- A I <li<J- 
 
 ft. Have you got that? A. At my office. 
 
 O Vou have not got that here? A. 1 have not got that here, no 
 
 '^.. f)id Mr Priest make a plan as well? A He did. 
 
 Q There is a plan on that deed that we were reierring to a little while ago Was 
 t-,i£t Mir. Pniesfs plan? A. No, 1 made that plan; from Mr. Priest's survey That is a 
 iTBct mtpresentation of Mr. Priest's survey, the plan attached to the conveyance. 
 
 Q The plan attached to the surxcj- is a copv of Mr Prieit's plan? A No. it is a 
 ' ■>]}}■ litf ate plan made by myself from Mr. Priest's notes 
 
 40 
 
field 
 It is 
 bool 
 
 Yes 
 Plai 
 
 A. 
 
 Ikis^ 
 
 scrii 
 
 nl N 
 
 Min[ 
 it w 
 
 Ihu 
 
87 
 
 Q. You did not have Mr. Priest's plan? A, Mr. Priest's plan is in the hook of his 
 field notes. 
 
 Q. There was no separate — 1 mean there was no plan that you could detach? A. 
 It is attached, it is co()ied on tracing linen in the Dook, which you could take in or out 
 
 O. But you did not use Mr. Priest's plan of the claims? A. No, sir, it is in the 
 hook. 
 
 Q. But it is certainly in accordance with Mr Priest's plan? A. Certainly. 
 
 y. And Mr. Priest's plan is a plan of Lot 6, Douglas District, 1 suppose? A. i" 
 
 Yes. 
 
 Q. Well, now, I see you say in here — you wrote a letter of .April i I, )^gC>, to the 
 Plaintiff (handed to witness)? A. Yes. 
 
 Q. ( Reading letter)? A. Yes. 
 
 Q. Was this survey accepted? A. It was. 
 
 Q. Who accepted it? A. 1 did. 
 
 Q. As Land Commissioner? A. As Land Commissioner 1 accepted it. ^o 
 
 Q. Yes. Now, your notices always referred to Lot 6, Bright District, did they not? 
 A. Those do. 
 
 O. Yes, and as a matter i^f f-ict the property ultimately determined c;i is Lot 6, 
 Bright District; this district? A. Douglas District. 
 
 Q. You have explained the rccison why it was Bright District A. Bright District 
 was away down to the south, and not on the west at all. 
 
 Q. That was an error as a matter of fact? A. It was a clerical error in the de- 
 scription. 30 
 
 Q. ,\nd it should be Lot 6, Douglas District? .\. Yes. 
 
 Q. Therefore the whole transaction is referable to Lot 6, Doughs District, is it not? 
 A. Certflirtl)' The Jatltl dcisired by Mr Hobbs was alwa>-s in Douglas District. 
 
 y. There is no i|Uestlnn about that' A. There is no question about that at all. 
 
 Q. As a matter of fact the Company never were laboring under any misapprehen- 
 sion of that? A. Not the slightest. 
 
 y. Any faultiness that may appear is by perhaps the strict reading of this writing 
 nj November 38th, 1889. A. In adopting perhaps to a very great extent Mr, Hobbs' 
 ipplication. 
 
 y. Yes. And when you made this tracing, which has been called exhibit " F," you 
 Minply were aware of the and that Mr. Hobbs intended topuicha^e? A. From the way 
 :t was placed on the plans. . . 
 
 Q. From the way it was placed on the plans? A. In the Land Office 
 
 Q. Well, in your dealings with Mr. Hobbs did you make any new agreement with 
 !ii.' Plaintiff about this land? A None. 
 
88 
 
 lO 
 
 20 
 
 (J. No? A. Except verbal. 
 
 (J. Well? A. He was shown the plan showing the position of this land. 
 
 Q. Yes. A. And he said that was the lind that he expected to gtt, that hr 
 wanted to jjet. 
 
 y. I mean to say when you say the agreement there was never a — you never were 
 at any disagreement about the land? A. No. 
 
 y. 1 mean to say there never w.is any contest? A. There was never any dispute 
 as to which land he was to have? 
 
 Q. As to which land he was to have? A. No. 
 
 Q. The whole dispute if any arises on the tenor of tiic conveyance? A. Exactly. 
 
 (J. Well did you have any discussion with him about what the tenor of the convey 
 aiice should be? A. No. 
 
 Q. Of course, adverting now to the time ho made this purchase; November 28tl', 
 1SS9, 1 suppose you had to do things more or less generall)- then, the system of survey- 
 ing was not so complete that you could get any very accurate description of land? A. 
 There was no survey made then under which you could have tied that property on, so far 
 as 1 remember. 
 
 Q. So that on both sides there had to be some latitude of language as to describing 
 lands. For instance there you see yourself it was to be at a point commencing two miles 
 west of Louis Stark's Crown Grant? A, Yes. 
 
 Q. 1 mean there w as no block surxey or anything that you could tie on to? A. 
 No. 
 
 Q. So that is all that ever transpired you may say between >ou and the plaintiff? Had 
 you any other meetings or communications? A On the application for his conveyance ^° 
 I forwarded it to him — and he sent — returned it with a letter stating that it was not 
 acceptable to him. 
 
 Q. You received a letter to that effect? A. 1 did. 
 
 Q. Well now did )'ou receive this inone\', the final payment for the property? A. 
 The check I did. 
 
 Q. Yes, have you any entry in your books about the receipt of this? A. Yes. 
 
 Q. We already referred to that? A. Yes, gave the number of the receipt and the 
 amount. 
 
 Q. The Company received that amount? A. Yes. 
 
 0. You refer tothi-i letter April 27th, you advised him that the two months wouki 
 soon expire (letter handed to witness). A. Yes. 
 
 Q. That is your letter to him? A. Yes. 
 
 Q (Reading letter). And after that you got the money and the cheque? A, Yes 
 
 Q You acknowledged receipt of the cheque? A. Yes 
 
 40 
 
89 
 
 The notice referred to vra.i marked Rxhibit No. 2 
 
 Q Then you -iirote a letter dated April 2gth, 1896, in which you iicknowledged re- 
 1 eipt of the- rnonc>? A Yes. 
 
 Letter marked Exhibit No. j. 
 
 y. W ell. then, you issued afterwards receipt number 864, the Company's receipt? 
 A Yes. 
 
 y. That is your receipt, is it? A Yes. 
 
 Q Bearing date April 29th, 1 896? A. Yes '° 
 
 y. That is for the balance of the purchase money? A Interest and conveyance. 
 
 Receipt marked Kxhibit No. 4. 
 
 y. You sent a form of receipt for him to i^ive for the con\ e)';incc, A. Yes. 
 
 O, Hut that was returned to you — it was not returned to you of course? A. No, 
 the conveyance was returned to me, but the receipt was retained. 
 
 O. And that is the receipt (handed to witness)? A. That is the receipt, yes. 
 Marked Exhibit No. 5. 20 
 
 y. That v. -nt forward with this letter of yours of May 8th, did it not? A. The 
 conveyance did and the receipt. 
 
 Q. Yc-s? A Yes. 
 
 Q. And you recognize that letter as l)ein^ yours? A. Yes. 
 
 y Written to the Plaintiff ? A. Yes. 
 
 Marked Exhibit No. 6. 
 
 A. 
 
 y. Well, now the Plaintiff wrote to you in reply and returned the deed, did he not? 
 He did 
 
 30 
 
 y. That is the letter of the 9th May, 1896 1 handed to witness)? Do you recog- 
 nize this letter as being received by you, signed by the Plaintiff? A. Yes. 
 
 Letter marked Exhibit No. 7. 
 
 y. You got that letter and the Plaintiff said it was full of reservations? A. \'es 
 
 y. And he would net take it nd returned it to you. When was it that you were 
 ■ippointed to the office of Land Co nniis; ioner of the E, & N. Railway Company? A. In ^'^ 
 May, 1894. 
 
 y. How were you appointed, t'V res'>lution? A. No, by instructions of Mr James 
 I lunsmuir. 
 
 O. Verba] instructions? A. Verbal instructions. 
 
 O. An)- :ippointincnt under the seal of the company? A . 
 
 y. Nor resolution of the Company? A. No. 
 
 No. 
 

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 90 
 
 Q. There never had been any misunderstanding between your company and Mr. 
 llobbs as ».-/ what land he was to get? A. As far as I know there was never any dis- 
 pute. 
 
 Q. I call your attention to this letter of the 28th of April, written by the Plaintiff 
 to you. You received that letter Miandcd to witness). A I did, 
 
 Q. And it was in compliance with that letter that you sent out the deed of convey- 
 ance. A. Yes. 
 
 Letter marked Exhibit " No 8." , 
 
 Q. Now, had you any other dealings .vith the Plaintiff with reference to this land? 
 A I do not think so. 
 
 Q. This is all that has transpired between you and the I'laintiff as far as you know? 
 A. Everything so far as I know. 
 
 Q. Do you notify the public at the pri sent time in any way that you do not sell 
 lands except reserving the coal? A. W'c have no advertisement in the papers with rc- 
 ^'ard to the sale of agricultural lands, in the pai>ers at the present time. 
 
 Q. Do you still issue your agreements for sale in the same way? A. No, 
 
 Q. You have got different agreements now? A. Special printed forms. 
 
 Q. Settled forms of agreement? A. Ye.s. 
 
 Q. And they notify the intending purchasers of the reservation ? A. The 
 form states that all sales are subject to the usual reservations contained in conveyances 
 from the Ksquimalt and Nanaimo Railway Company prior to the date of the agreement. 
 
 Q. And those usual reservations are the ones put in to that conveyance made to the 
 I'laintifT? A. Exactly. The usual reservations mean all the reservations. 
 
 Q. Are \ ou familiar with that pigeon hole place of record that Mr Trutch spoke of, 3° 
 where papers relative to sales of land— A. Mr. Trutch, I think, referred to a drawer 
 not to a pigeon hole, these papers were kept in a special drawer. 
 
 Q. Relative to sales of land? A. Yes, the pigeon holes that he was speaking of at 
 
 that time were onl" for the filing away of papers in connection with pre emption records 
 
 -applications for pre-emption records. The papers in connection with the sales were not 
 
 kept in the same pigeon holes as the record papers. But they were all filed away together 
 
 in one place. 
 
 Q. In a place of record, a place of filing? A. Where I had access to them. 40 
 
 Q. And the directors of the Company have access to them? A. They would not 
 know wh«re they were, without being able to open the vault and go to the drawer. 
 
 y. When the vault was open? A. If they went and ferreted around they might 
 liiid them, but otherwise they would not know where they were. 
 
 Q. They could easily call one of the employees? A. If they wished to see them 
 lliey could ask to see them of course. 
 
 Q. They were the Company's records? A. They were the Company's records. 
 
91 
 
 Q. And not any special officer's private records. A. No, papers belonging to the 
 ( ompany. 
 
 Q. Did you inT w as a matter of fact that you ret;\ined a copy of this writing of the 
 28th November, 1889, with Mr. Hobbs? A. Certainly, the tick in the top corner of it in 
 red is made by myself, showing that it has been entered. There is a tick in the duplicate 
 that Mr, Pooley has and that shows that 1 entered it, th it shows that the entry was made 
 by myself. 
 
 Q. What entry is that? A. The entry of the first payment. 
 
 Q. And it is in the book that w just referred to? A. Yes, land sales books in 
 Kright District, that is where that entr^ /as first made. 
 
 Q. A copy of that writing of the 28th November, 1889, has been continuously in 
 the office of the Defendants? A. It has been in my charge until lately — until it was 
 handed to Mr. Pooley. 
 
 Q. When you say in your charge, it was in the offices of the Company in ordinary 
 course, wasn't it? A. But I had charge of all — I always have had charge of all docu 
 inent and letters and papers. 
 
 10 
 
 20 
 
 JAMES DUNSMUFR, being duly sworn, testified. Examined by Mr. McPhillips: 
 
 Q. Your name, Mr. Dunsmuir? A. James Dunsmuir. 
 
 Q. And you are now Vice President of the E. & N. Railway? A. Yes. 
 
 Q. Would you tell me when you first l)ecame connected with the E. & N. Railway 
 ( ompany in any official capacity, I mean as a director; was it prior to, say the 28th of 
 November, 1889? A. At the start of the E. & N. Railway Company, was one c{ the '^^ 
 liromoters. 
 
 Q. And were you one of the first directors? A. One of the firri ves. 
 
 Q. And you have continued to be a director since? Yes. 
 
 Q. I think that the Railroad Company took shape in 1883 or 1885' ... 1883, I 
 think. 
 
 Q. You think that was in 1883 or 1884, Mr. Dunsmuir? A. 1883, I think. 
 
 Q. Do you know the composition of the Board of Directors in 1888, do you re- 40 
 member? has it changed, or what was it at first?. A There was my father, Charles 
 • rocker, John Bryden and myself, and I think Charles Crocker; I think there were five. 
 
 Q. There were two C rockers? A. Yes. 
 
 y. And your father and yourself and Mr. Bryden? A. Yes. 
 
 Q. Do you think that was the composition of the board in November, 1889? A. 
 What time in 1889? 
 
 Q. In November it would be. A Just then, my brother — 
 
92 
 
 Q, Alexander Dutismuir? A Yes. C. I'. Huntinptlon, Charles F. Crocker, and 
 myself — 1 forget; there is another one. 
 
 Mr. Pooley: Q. Mr. Bryden? A. And Mr. Hryden that is it. 
 
 Mr. McPhillips: Q. That would be the composition of the Hoard in November, 
 1S89? A. Yes. 
 
 Q. Well now, Mr. Dunsmuir, was there any Managing Director in say November, 
 1.S89, and who was acting as Managing Director? A. Well, there is no Managing Direc- 
 tor at present, jq 
 
 Q. Hy specific appointment there was none? A. No Managing Director, no. 
 
 Q. Had the Railway Company any by-laws? A. Yes. 
 
 At the request of Mr. McPhillips, Mr. Pooley produced by-laws of the Defendant 
 Company. 
 
 Q. Well, then, you had by-laws. I sec it says here under section 41 of the by-Uiws' 
 that 3 shall form a quorum? A. Yes. 
 
 Q. There was not a quorum in this Province, was there three of you? A. No, 
 not all the time. ^° 
 
 Q. Well, has that Board, as constituted in November, 1889, continued up to date? 
 A. Yes, 
 
 Q, Is that the prescn. Board? A. The |)resent Board, yes. 
 
 Q. Well, now, Mr. Dunsmuir, in November, 1889, \fere you also acting as Vice. 
 President then of the Company? A. Yes. 
 
 Q. And were you acting as Managing Director, or what airangement was there? 
 There was no Managing Director? A. 1 was acting as Managing Director and Vice, 
 i'resident. 
 
 Q. And Vice-President? A. Yes. 
 
 Q. Do you remember anything of the appointment of Mr. John Trutch? A. John 
 I rutch, he was appointed in my father's time, 
 
 Q. He was appointed prior to you, coming on the Board? A. No, not prior to my 
 coming on the Board. 
 
 Q. Yes, you were on the Board at the first and your brother Alexander came on 
 later? A. He came on later. 
 
 Q. Are you acquainted with the fact of his being appointed Land Commissioner? 
 A John Trutch, yes. 
 
 Q. Was it at any Board meeting? A. No. 
 
 Q. You do not remember the circumstances of his appointment then? A. No, I 
 (i'l not remember the circumstances of the appoirtment. 
 
 Q- Do you know whether there is anything in the minutes of the meetings of the 
 lioard with reference to his appointments? A. Nothing. 
 
 30 
 
 40 
 
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 ma 
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 line 
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 20 
 
 93 
 
 Q. There arc none? A. No, none. 
 
 Q. At any rate, John Trutch was ap[)ninted Land Commissioner? A He was 
 
 appointed. 
 
 Q. You know that? A. Yes. 
 
 Q. And was acting as suc'i on the 28th of November, 1889? A. Yes. 
 
 Q. Is his appointment, to your knowledge, under the seal of the Company, or in 
 writing? A. No, verbal. 
 
 Q. It was verbal. But you are acquainted with tlic fact that he acted as Land 
 Commissioner for the Defendant Railway Company? A. Yes. 
 
 O. Now, dealing with the subject matter of this action, Mr. Dunsmuir, when did 
 you first become aware that an\' of tlic lands of the Defendant Company had been agreed 
 to he sold to Frank Vicker Hobbs? A I cannot say the time. 
 
 Q. You do not remember the exact time? A. No, I do not remember that. 
 
 Q. Was there any duty ca,st upon the Land Commissioner, to your knowledge, 
 whereby he was to lay before you a list of Innd sales made from time to time? A. No 
 
 Q. And, of course, then, none would come before you in ordinary course? A. Oh 
 yes, come before me. 
 
 Q. They did come before you? A. Yes; not lists, though. 
 
 Q. Do you remember when it was first called to your attention, that is, the sale to 
 the Plaintiff? A. No, I do not remember. ♦ 
 
 Q. Well, do you remember generally? Was it your custom or the custom of the 
 Hoard of Directors to take up .innually the land sales made by the Company? A. No. 
 
 Q. It was not. I suppose you took up annually, though, your expenditure and 
 receipts? A. Yes. 
 
 Q. Would not the money received from land sales come under your notice that 
 way? A. No — in which way. 
 
 Q. Well, were your annual expenditure and receipts — d d you keep your ra.lway 
 matters separate from the .id sales? A. Yes, the land sales were kept separate from 
 the railway matters. 
 
 Q Separate from the railway matters? A. Separate from the railway matters. 40 
 
 Q, You do not think that you became annually acquainted with the land sales made? 
 A. Oh, the number of acres sold, yes I did, the lump sum; 1 did not know any 
 itidividual. 
 
 Q. Well then, when really did this matter of the claim of the Flaintifif first come 
 under your notice, then? He has now brought an action to obtain the land free from any 
 riservations? A. I could not say exactly say the date. 
 
 Q. Well, it was prior to the commencenient of the action, I suppose. A. Yes. 
 
 3" 
 
94 
 
 y. Well, did you have any conversation with the I'laintiflf aV«)ut it? A. 
 with him. 
 
 No, not 
 
 lu 
 
 Q. No. Well, did you pass judgment upon it in any way as to what should be 
 (lone? A. I told Mr. Solly what to do^the Land Commissioner. 
 
 Q. You instructed Mr. Solly what should be done? A, I instructed Mr. Solly 
 \vhat to do. 
 
 Q. Well, arc there any minut' s of the Hoard of Directors ilealinjj with the claim of 
 the IMaintifr to this land at all? A. No. None. 
 
 Q. There arc no books of record of the (onipanj in which are recorded any inspec- 
 tion by the Hf)ard of Directors rcquirin^j an annual report of the Land Commissioner of 
 the sales made? A. No, not necessary. 
 
 y. It was not the custom to require that? A. No. 
 
 Q. Do you remember that he ever made any detailed report of the sales made? .A. 
 '">f the sale? 
 
 Q. Yes. of Ian. ■" A. Oh yes, of the sales of land; it would i^how it in our yearly 
 report of the amount of land sold. 2o 
 
 Q. But it would only he — A. In a lump sum. 
 
 y It would not be sold to A, sold to B, sold to C? A. 
 it would just be the number of acres sold. 
 
 No, not the name at all, 
 
 Q. I supjjose when you took the matter up of the Plaintiffs claim to certain land, 
 which is Lot 6, Douglas District, you went into the whole matter with your new Land 
 Commissioner, Mr. Solly, did you? A. Ye-. 
 
 y. And arrived at a certain conclusion? A. Yes. 
 
 Q. And he was directed to carry it out? A. To carry it out. 
 
 Q. One part of the business of the Defendant Company is to sell lands, is it not? I 
 mean you have large land tracts, have you not? A. Yes. 
 
 Q. I mean to say, you are a Railway Compan- , and then again you are holders of 
 larf^e tracts of land? A. Well, that is in the railway belt. 
 
 y. I mean to«ay, in carrying on your business you carried on a railway business 
 and besides you carried on a land department? A. Yes. 
 
 Q. And you have done that right from the commencement? A. Right from the 
 loinmencement, yes. 
 
 y. \nd yon had a stafT for the Railway Department, and a staff for the Land 
 I )epartment? A. For Land Department, yes. 
 
 y. And that continues up to date? A. That continues uj) to date, yes. 
 
 y. And John Trutch was appointed for the purpose of managing the Land Depart- 
 ment? A. Land Department. 
 
 3" 
 
 40 
 
95 
 
 n. Well, there is no contest, as I undcrstaml it, on )-our own view of the matter 
 with the riaintilT, about ^{ivill^; him tl>e paiticular land in question, hut sul>ject of course 
 111 the reservations? A. To the reservations, yes. 
 
 y. Have ) ou read over the agreement of sale, Mr. Duiismuir, or this writiny I will 
 ci\\\ it — Mr. I'ooley objects to my callin^r it an agreement of sale — but this writing of the 
 .•8th of November, 1889, with the Plaintiff? A The receipt? 
 
 y. Yes. A. Yes, I have seen it 
 
 (J. You have seen it atul read it over? A. Yes, . 
 
 Q. What I want to K*^t at particularly, Mr. Uunsmuir— wlit-r was it that this 
 I'laintifiTs application first came uniltr your 1 otce? I might assist > )U perhaps, it hfis 
 been sworn alrcad)-. Mr. Solly says at one time you called him in id went over this par 
 ticular matter in connection with the coal discover es? A. Yes. 
 
 y. And yon wanted to find out what i)ersons hail been sold any land In that neigh, 
 borhoixl. li ^ >iilil be then, would it? (J. It mij^ht have been t; on. 
 
 O. Or it might have been before that? A. 1 couldn t s,iy, I forget aboi.t that. 
 
 Q. That would Ijc 1895 was when that came up? Do you remember when first 20 
 Mr. I'indcr made some surveys up in that neighl orhood? You remember when the first 
 (oal was discovereil? A. Yes, that would be 1895, I think, or 1896, i think it was 1895. 
 
 Q. First, I understand, Mr. Dunsmuir, you took it that — the first vi(;w you seemed 
 to have formed, was, that the agreement had lapsed? A. Ycv 
 
 Q. That, I th nk, wa.s the first? A. Yes. 
 
 Q. You thought it had lapsed by virtue of <lelay on the part of the PlaintiflT? A. 
 Yes. 
 
 Q U'ell then, I suppose of course, you had become acquainted then with the exact 3" 
 terms of sale, because you had a look to see how the payments were to be made? A. I 
 l)fcame acquainted with what? 
 
 Q How the payments were to Ix; made? A Oh yc«, I understood. 
 
 Q. You knew the terms? A. I knew the terms yes. 
 
 y Well, there was only the one agreement, though; one tra saction with the 
 I'laintiff, was there? There were no two agreements of sale to the Plaintiff? A. No two 
 aj^rcement". 
 
 Q. There were no two agreements with the Plaintifir, two separate ones? "^^ 
 
 Mr. Pooley: You mean two agreements in writing? 
 
 Mr. McPhillips: I mean there were no two diflerent dealings with the PlaintiflT, were 
 there? A. 1 dont know, of course there was the dispute then raised. So in which way 
 tlicre were two diflferent dealings I do not know. We only had one way of dealing 
 
 y. I mean, all the transactions that took place between the Defendant Company and 
 tlic PlaintiflT, was in reference to this purchase of land, was it not, of the 28th of November, 
 i-iSg? A. Ye.s. 
 
96 
 
 Q. However, you neve;' liad an>' conversation wlili him, Mr. Dunsmuir, yourself? 
 A. No, I never spoke to liini Only when he and the lawyer came into the office, and 
 wanted mc to sign their af^reement or t''eir deeil. 
 
 Q Their deed? A. Yes. I told them no, I would i:ct sign any other deed than the 
 deed we issued, the E. & N Railway Company deed; and we only sold the surface right. 
 
 O. Dealing with that, Mr. Dunsmuir, I think Mr. Chartrcs Pcmberton and the 
 riaintiff attended at your office with a deed? A. Yes, that is the one I am speaking of 
 
 Q. They tendered a deed without reservations, without reserving the coal, etc? A. 
 
 Yes. 
 
 Q. And you refused to execute that deed? A. Of course I did, that was not the 
 way we sold the land, that is, sold the surface rights 
 
 Q. The only deed you executed was the one covering the surface rights? A. Yes, 
 tlie usual deed that the E. & N. Railway has, and the deed that wc have always made 
 
 cut. 
 
 Q. Do yoL. know, Mr. Dunsmuir, w'lethcr or not it was a fact that the Plaintiff 
 entered into possession of these lands shortly after the 28th of November, 1889? It is a 
 fact seemingly that he built a cabin on the premises?. A. He built a cabin, yes. 
 
 Q. Do you know as a matter of fact that the Plaintiff did go on the land and build 
 a cabin on it? A. No, I could not say. 
 
 Q. You don't know that yourself? A. No, I co ild not s\' ear that he did; I heard 
 he (h'd; I could not say th.it he built it; the cabin there, I have seen the cabin 
 
 Q. Now, dealing with the broad general matters of your lands, of which this is a 
 part, Mr. Dunsmuir, of t' e Defcnt'ant Company's land; the Defentlant Company owns a 
 large tract of land, of which this is a part, you have the absolute title, have you not, to it? 
 A. Yes. 
 
 Q. I mean to say, the E. & N. Railway Company own the land of which this par. 
 ticular land in cjuestion forms a part? A Yes. 
 
 Q. Free from any reservations? A. Free from any reservations. 
 
 Q. Yes; that is, you have got a provision now whe.^Dy the purchaser signs a receipt 
 admitting that reservations will be contained in the deed? A. Oh. no, we give a receipt 
 having received a certain amount of money from a certain person, we put in surface rights, 
 riceived on account of surface rights, on account of so many acres of surface rights, so 
 much. 
 
 Q. That was not in vogue when the Plaintifif bought? A. No, it was not. 
 
 Q. Has that long been the practice of the Company? A. Oh, since some time ago. 
 
 Q. Some years, I suppose? A. Yes. That was after Mr. Trutch's time. 
 
 10 
 
 20 
 
 30 
 
 40 
 
 THOMAS SINCLAIR GORE, being duly sworn, testified. 
 ^' -Phillips: 
 
 K.xamined b\ Mr. 
 
97 
 
 By both Mr. Jaiw.'s Duns- 
 A. I believe so, yes. 
 
 lO 
 
 20 
 
 Q. Your full name, Mr. Gore? A. Thomas Sinclair Gore. 
 
 Q. I believe that you were at one time Land Commissioner of the Defendant Com- 
 pany, the Esquimau & Nanaimo Railway Company? A. Ye.s. 
 
 Q. Do you remember the time of your appointmen; that is, was it in wnting? A. 
 ■My appointment? 
 
 Q. Yes. A. No. 
 
 Q. Verbal? A. It was verbal. 
 
 Q. By whom were you appointed for the Company? A . 
 muir and Mr. Alex. Dunsmuir, they were present at the time. 
 
 Q. They were directors of the Company, were they not? 
 
 Q. And your appointment was not then in writing, or under the seal of the Com- 
 ()any in any way? A. No 
 
 Q. Do you .now whether the Board of Directors passed a resolution appointing you 
 or not? A. 1 .10 not. They never informed me on the subject. 
 
 Q. And you do not know as a fact, whether that was done? A. I don't know i as 
 a fact, no, 
 
 Q. In October, 1891, it was that you w ere appointed? A Yes 
 
 Q. That would be some subsequent time to the agreement of sale — subsequent to 
 any dealing by the Defendant Company with the Plaintiff, because that was the 28th of 
 November, 1889. 
 
 Q. Well, now, after you were appointed, you exercised your duties as Land Com- 
 missioner of the Defendant Company, I suppose? A. Yes. 
 
 Q. For how long? A. Until May, 1894. 
 
 Q. Until the month of May, 1894? A. Yes. 
 
 Q. Well, now, whilst you v ere exercising your duties as Land Commissioner for 
 the Defendant Company, did any sale of land to Frank Vicker Hobbs come under your 
 notice? A. Yes. 
 
 Q. Do you remember when it first did come under your notice? A. It was in a 
 letter from him asking — I do not remember exactly what the text of the letter was. 
 
 Q. We know the contents. It was a letter of the 4th of April, 1892, an e.xhibit in 
 one of the other examinations? A. Yes. 40 
 
 Q. Then you wrote this letter, I think, in reply? (Letter handed witness). You 
 received a letter from the Plaintiff, of the 4th of April, 1892? A. Yes. 
 
 Q. And you wrote that letter in reply, did you not? A. Yes. 
 
 Q. This is Exhibit " D' in the examination of the Plaintiff. When you got that 
 letter of the Plaintiffs of the 4th of April, 1892, what did you do? Did you look up the 
 records and find out what— A. Yes, I looked up the records to see what land he re- 
 ferred to. 
 
 .30 
 
98 
 
 Q. And, having founi.1 that, you wrote this letter, wrote this letter of the 6th of 
 April? A. Yes, 
 
 Q. Uo you remember bringing that to the attention of any of the directors then? 
 A. No, I do not remember bringing it up before them. It was Mr. Dunsmuir I would 
 liave referred it to. 
 
 V'es, I do not remember having done so; I may 
 
 Q. Mr. James i3unsmuir? A. 
 possibly, but I do not remember it. 
 
 Q. Were you required to do so, exercising your duties as Land Commissioner? A. lo 
 
 No. 
 
 Q. That is, you had entire management of lands and land sales; is that it? A. 
 ("iciierally speaking I had, yes. 
 
 Q. At any rate you do not remember whether you did. I notice in this letter you 
 t xcrcised some authority did you not; you advised him that he could employ a surveyor 
 and have the land surveyed, did you not? A. Yes. 
 
 Q. And that was within your powers? A. Acting under general instructions, yes. 
 
 Q. In advising him that, you were acting under general instructions? A. Yes. 20 
 
 Q. That was within your power? A. That was within my power, at least I un- 
 derstood it so. 
 
 Q. I notice you enclose a tracing there. That is from examinii g the appl cation I 
 suppose, and a copj- of the writing of the 28th of November, 1889, that was in the office 
 you sketched it and put that red in there as indicating about where you thought the prop- 
 erty might be? A. Yes. 
 
 Q. (Document handed to witness.) You are look.ng now at E.xhibit " E," to the 
 examination of the Plaintiff. You say that after looking at the records in the office— do 30 
 you remember what was there now? A. There was Mr. Hobbs' application and some 
 pencil notes made by Mr. Trutch in the Register. 
 
 Q. And what el.se? I suppose there was a copy of this writing of the 28th of Nov- 
 ember, 1889, was not that so — because we have had it stated there was, the receipt for the 
 money? A. The receipt for the money; there was a copy of that in the office. 
 
 Q. You saw that at the time? A. Yes. 
 
 Q. That is called the writing of the 28th of November, 1889 (document handed to 
 witness.) I'hat is ttie original of what the Plaintiff has; I do not suppose )ou ever saw 40 
 that before? A. I never saw that before. 
 
 At the request of Mr. Mc Phillips, Mr. Pooley produced a copy of the paper. Same 
 was handed to witne.ss. 
 
 The Witness: Yes, I believe that is it. 
 
 Said document was marked E.xhibit " A " of this date. 
 
 Q. Amongst your papers you saw this paper, which is marked Exhibit " A "? A. 
 
281 
 
 A. 
 
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 nut 
 
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 Ho 
 
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 Dis 
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 tioil 
 
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 99 
 
 Q. Which writing of course speaks for itself. It is a copy of a writing of the 
 j8th of November; 1889? A. Yes. 
 
 Q. Then you saw the application, and this; and any other papers do you remember? 
 A. No, I do not remember any other papers in connection with it 
 
 Q. And after reading those through and looking into the matter, you wrote this 
 letter of the 6th of April, 1892? A. Yes. 
 
 Q. Now, are there any writings of yours in the books of the Company relative to 
 the Plaintiffs purchase of land? A. Only my copy of that letter, I believe. 
 
 Q. In the letter book? A. Yes. 
 
 Q. Anything else? A. There is an entry, I think, in one of the registers. 
 
 Q. One of those little books there (indicating)? A. Yes. 
 
 Q. Of yours? A. Yes. 
 
 Q. I would like you to refer to it (book handed to witness;. A. That is mj- writ- 
 ing there (indicating). 
 
 Q. At page 67 in Douglas District, you find what writing there; you mi^^ht read it 
 out? A. F. V. Hobbs. ^^ 
 
 Q. Read the top a.s well. A. Name, F. V. Hobbs. 
 
 Q. First you start with this (indicating). A. Number of Lot, 6. Name, F. V" 
 Hobbs. Interest, 6 per cent. Acreage, 93 — with a query after it, it was unknown, the 
 (]uantity of land. Price per acre, $3.00. This is just taken from the receipt you see. 
 
 Q. Headed terms of payment and dates when paid? A. First payment. Date 
 when paid, 28th November, 1889 Amount paid $120. 
 
 Q. Now, that entry is in your hand writing? A. Yes iq 
 
 Q. And when do you think it was made? A. I think that was made after Mr. 
 Hobbs had been to my office. 
 
 Q. When would that be? A. I think it was in the autumn of 1892. 
 
 Q. Autumn of 1892? A. I am not sure about the date. 
 
 Q. It would be after that letter of the 6th of .April, 1892? A. It would be after 
 that letter, yes. 
 
 Q. Well, you notice now you have entered it Lot 6. What lot was that; Douglas 4° 
 District How did you come to enter it up in that way? A. I think it was because it took in 
 parts of different sections you see, and we got in the habit instead of going by the old sec 
 tion lines there, of giving it a lot number. 
 
 Q. That had been the custom of the Company? A. Yes. 
 
 Q. In fact, a previous number was 5, and that became 6? A. Yes. The book up 
 t< . a certain place is numbered in townships, sections and ranges, beyond that they have 
 .; .en them lot numbers. 
 
lOO 
 
 Q. Do you know when the)' started to number them by lot numbers? A. The 
 first one here is in 1887. 
 
 Q. Then you entered that as lot number 6. At that time when you entered it tlie 
 survey had not been made, had it? A. No. 
 
 Q. The survey had not been made? A. The survey had not been made. 
 
 Q. And the survey has since been made? A. Yes. 
 
 Q. Hut that is .since that time, is it not? A. Yes. 
 
 Q. Since your time of office. Do you know the lands in question at all? Have you '° 
 been on the ground? A. No. 
 
 Q. Well, you recommended thnt the IMaintiff employ Mr. Priest as surveyor, or Mr. 
 Fry? A. Yes. 
 
 Q. That is that either of them were satisfactory to the Defendant Company? A . 
 Yes, I just named then as being surveyors in the vicinity. 
 
 Q. And they were satisfactory to the Company? A. Yes. 
 
 Q. Weil, was any limitation of authority pub! sheil in connection with your office 
 as Land Commissioner. You held it as Land Commissioner? A. Yes. 
 
 Q. There was no notification posted in the office to the effec t th.it you liad only 
 limited powers? A. No. 
 
 Q. You were styled Land Commissioner, and held yourself out as such? A. Yes. 
 
 Q. Is that all you had to do with Mr. Hobbs? A. That is all, I do not remem- 
 l)cr having anything more to do with him than that. 
 
 20 
 
 Friday, 18th June, 1897, 11 a. m. 3° 
 
 Court met pursuant to adjournment. 
 
 Mr. McPhillips: My Lord, yesterday in putting in the e.xamination evidence, which 
 i did rather hurriedly, I find I have made a mistake as to the evidence I put in on page 1 1 
 of Mr. John Trutch; I have put in the whole page, when my intention was to put in lines 
 1 to 10 inclusive; and lines 22 to end of page. 
 
 The correction was allowed by the Court. 
 
 Mr. McPhillips: Then I want to put in this further evidence of Mr. Trutch, pige 41, 
 lines 25 and 26, page 42, lines i to 3 inclusive. 
 
 Then in Mr, Solly's evidence, on page 72, I p.,i in line 22 to the end of page. 
 
 Mr. McPhillips: That is the Plaintiffs case, my Lord. 
 
 40 
 
 Mr. Pooley, here called on behalf of the Defendants, JOHN TRUTCH, who being 
 iuly sworn, testified. Examined by Mr. Pooley: 
 
 Q, Your name is Mr. Trutch? A John Trutch. 
 
lOI 
 
 Q. What was your occupation in Victoria on the 28th November, i88y? A. I 
 was Land Commissioner of the Flstiiiimatt & Nanaimo Railway Company 
 
 Q. When were you appointed to that position? A. The 1st July, 1888, I think 
 it was. 
 
 Q. By whom were you ap|)ointid? A. The late Mr. Robert Dunsmuir, the Presi- 
 dent of the Esquimau & Nanaimo Railway Company. 
 
 Q. Was that appointment in writing? A No. 
 
 Q. When you were appointed to the posit. o" of Commissioner of Lands had you any •*> 
 instructions given to you as to the dealings with those lands? A, Yes. 
 
 Mr. McPhillips: Before my learned friend goes into that I would like an objection 
 as to its effect. I submit to your Lordship it would not bind the Plaintiff unless it was 
 made known to him. Secret instructions given to the Land Commissioner are not binding 
 upon the Plaintiff. My learned friend, if he wishes to use this as evidence against the Plain. 
 tiff, it seems to me, will have to undertake to connect it and prove that it was brought to 
 the notice of the Plaintiff. 
 
 The Court: I shall accept the evidence, but I shall consider the point in giving judg- ^^ 
 
 inent. 
 
 Mr. Pooley; Q. Now what were the instructions that you received from Mr. 
 Dunsmuir with reference to dealing with the lands? First of all, Mr. Frutch, 1 ask you 
 when you were appointed? A. In July, 1888 or 1887 . 
 
 Q. I want you to be quite sure of that because in your evidence here you gave the 
 right date? A. 1887, I think it was. 
 
 Mr. Pooley: The evidence that Mr. McPhillips has put in gives the right date. 
 
 The Court: You can prove the correct date of Mr. Trutch's appointment; he can 30 
 refresh his memory. 
 
 Mr. Pooley: Q. Now, Mr. Trutch, what were the instructions that were given you 
 liy Mr. Dunsmuir when you were appointed? A. To sell the land for $3.00 an acre, 
 reserving all minerals and coal. 
 
 Q. Was that the only authority that you had to deal with the railway lands? A. 
 That was the only authority that I had. 
 
 Q. Have you always acted upon that authority? A. Always. 
 
 Q. Do you recollect about the time that the late Mr. Robert Dunsmuir died? A ^° 
 Yes. 
 
 Q. When was it? A. hi April, I think. 1889. 
 
 Q. After Mr. Robert Dunsmuir's death were any instructions given to you with 
 n ference to the sale of lands? A. Yes. 
 
 Q. By whom? A. By Mr. James Dunsmuir. 
 
 Q. Who was he? A. He was the son of the late Robert Dunsmuir. 
 
 ftiOVINCIAl UBRAfy, 
 VlcfGRiA. B. C. 
 
loa 
 
 Q Mr Robert Dunsmuir, the I'rcsidcnt of the Company What jjosition was Mr. 
 James Dunsmuir holdiny at that time, do you know? A. He was actnn iu I'rcsiilcnt of 
 the Company 
 
 Q. Well, what instructions did Mr James Ounsmu r Rive you? A Jle directctl 
 me to continue to administer the lands accordint'ly as I had been doin^ under the late 
 President. 
 
 Mr. Mcl'hillips; I assume that my objection goes to all this, my I-ord. 
 
 The Court: Yes. lo 
 
 Mr. I'oolcy: Q. Old you, Mr. Irutch, sec the plaintiff in this case at any time 
 in your office? A. Yes. 
 
 Q. Do you know when? A On the 28th Novemlxir, i88q. 
 
 y. (Receipt. Kxhibit C, handed to witness.) Look at that Mr. Trutch, will you? 
 A. Yes. 
 
 Q. is that the receipt that you gave to the PlaintifT? A. Yes. 
 
 Q. On the 28th November? A. On the 28th November, 1889. 
 
 Q. Now at the time that the I'laintifif came into your office and got that receipt 
 from you, had he any conversation with you? A. Me mu.st have a conversation 
 with me. 
 
 Q. Did you at that time tell the plnintifif that the minerals and coal in the land were 
 reserved? A Yes. 
 
 Q. Did you tell the Plaintff, when be came to you there, that the coal and min- 
 erals were reserved? 
 
 2(» 
 
 The Court sigge.sted that the question \\a.s leading. 
 
 Q. Well, what did you tell him, Mr. Trutc'i? A. I don't remember this Mr. 
 
 Ilohns, personally, individually, his name, or his presence on this occision, I ut it was m>' 
 ;.ractice to tell all applicants for lands the terms upon which they could obtain them and 
 it i? therefore my belief that I must have told the circumstances to Mr the particu- 
 lars of the land to Mr Hobbs as 1 did to all other .settlers ; but I don't remember Mr 
 llobbs personally. I have a recollection of his face but [ cannot remember him as Mr 
 Ilobbs or having been present on the occasion when this transaction took place. 
 
 At Mr. McPhillips' request the Stenographer read the question to and answor of Mr. 
 Irutch as follows: "Did you at that time tell the plaintiff t'lat the minerals and coal in 
 the land were reserved? A. Yes." 
 
 The witness : In making that answer 1 meant that answer to be a general one; be- 
 i.iuse I have stated I cannot remember this man personally, and therefore I cannot swear 
 that I have a recollection of telling him personally. 
 
 The Court: What I put down Mr. Trutch is this: I don't remember Mr Hobls 
 personally, but it was my practice to tell all applicants that all minerals were reserved and 
 I think that I must have told him the same. A. Yes, that is wh.nt I wish to say. 
 
 3" 
 
 40 
 
I03 
 
 20 
 
 Ml'. Pooley: Q. Now Mr. Hobbs yesterday in giving his evidence stated that in the 
 conversation he had with you in the office that you told him that he could pay the instal- 
 ments on this land at any time; did that conversation take pl.Tce with you, Mr. Trutch? 
 A. I certainly did not tell him that. 
 
 Q. Do you remember selling any land to any other person on that day? A. Yes. 
 
 Q. To whom did you .sell it? A. A gentleman called Andres Keating 
 
 Q. Did you shortly before this time, Mr Trutch, sell any railway lands of the E. & 
 N. Ry. Co. to Mr. Wardroper? A. Yes. lo 
 
 Q. Do yo'.i know where Mr. Wardroper is now living? A He is now living iti 
 Kngland. 
 
 Q. Did you in the course of the business in your office write a letter to Mr. Ward- 
 roper in May. 1888? A. I wrote a letter to Mr. Wardroper's brother. 
 
 Mr. McPhiilips: Now I object, my Lord. 
 
 The witness: Mr. Herbert Wardroper. 
 
 Mr. Pooley: Q. In the ordinary course of your business? A. In the ordinar>' 
 course of my business. 
 
 Mr. Pooley: Nov/, mj Lord. I have shown here that Mr. Wardroper is absent from 
 the Province in England and I have not the opportunity of getting the original letter; I 
 ask your Lordship to allow me to introduce this letter in corroboration of Mr. Trutch's 
 statement with regard to the instructions he received from Mr Dunsmuir (citing 97 Ed. 
 Taylor on Evidence, Sec. 335). 
 
 The Court: That is tending to corroborate his evidence The witness has sworn to 
 what hi;i general instructions are; I do not think it requires any corroboration unless it is 
 attacked. 30 
 
 Mr. Pooley: (.). That receipt you have just seen, Mr. Trutch, and looked at, was 
 tliat the receipt th.it you usually issued in the office? A. Yes. 
 
 Q. In all transactions of this character? A In all transactions of this character. 
 
 The Court: Q. The receipt that you gave in this case was in the usual form which 
 you used? A. Yes, my Lord. 
 
 Mr. Pooley: Q. Look at that, Mr. Trutch (Exhibit " T " handed to witness). A 
 
 Yes. 
 
 40 
 Q. Now, is that the usual form of conveyance gi\ en by the Company? A That 
 
 is the usual form. That is the same as the ones that I was in the habit of issuing. 
 
 Q. The same that you were in the habit of us.ng while you were Land Comniis 
 sioner? A. While I was Land Commissioner. 
 
 Q. For transactions of this character? A. For transactions of this character. In 
 fact the only ones that I issued. I Lssued no others but in accordance with that form. 
 
 Q. Yes During your lime there as Commissioner of Land-s did you ever sell any 
 I'l.ils or minerals? A. No. 
 
104 
 
 20 
 
 Q. Look at the land, Mr. Trutch, described in that conveyance, will you, in the 
 coiiveyance. Exhibit " T" (doing so)? A. Yes. 
 
 Q. Now, will you look at your receipt, please? A. (Doing so.) Yes 
 
 Q. Is the land described in that grant from the Company the same land that is set 
 out in your receipt of the 28th November, 1889?. A Well I can scarcely judge from 
 this plan, because there is no connection with the starting point that 1 n^entioned in the 
 receipt. 
 
 Q. Then look at this plan (Exhibit No 1.) (Witness does .so.) You can scarcely 
 tell on this map; this map does not cover the whole of it. (Exhibit Z handed to witness ) 
 Now look at this map Mr. Trutch, which is in evidence and which I am subsequently go- 
 ing to prove by Mr. Finder; and tell the Court if the land mentioned in the grant is the 
 same as the land mentioned in your receipt? A. I have looked at the receipt, 1 read it, 
 I have it in my mind. 
 
 Q. Now 1 will read the description of the receipt as you have given it here (reading 
 same). Now are you a Provincial Lar.d Surveyor? A. Yes. 
 
 Q. In your opinion as a land surveyor, where would that description place that land 
 upon the map before you?. A. It places it where it is shown here in blue. 
 
 Q. That is on the plan marked Z? A. Yes, marked Z. 
 
 Q. Did you, Mr. Trutch, during the time that you were in the office, change the 
 position of that land at all? A. Yes 
 
 Q. How did you come to change it? A. In consequence of my finding on the 
 survey of Lots 1,2, 3, 4 and 5, which were all made at the same time or all connected 
 to^'ether; finding that the land referred to in that receipt was covered in that receipt by 
 some of those surveys, I, therefore, moved th; claim; I made a note moving it a little fur- 
 ther east, closer to Stark's claim. 3° 
 
 Q. Did you make any memo, or entry at all in the books of the Company? A. I 
 did. I put his name in — made a memoraandum in pencil in the two sections in Dnuglag 
 District, 8 and 9 west of Stark's. I think they were, 1 won't be certain. Yes, 8 and 9 is 
 the number of the sections. Range 8. That was intended as a memorandum to show that 
 tliere was a claim on that land in case it should have to be dealt with in the office. 
 
 The Court: Q. That was in consequence of the survey you found on what lot? A 
 Of Lots 1, 2 and 3 
 
 Mr. Pooley: Now look at your book, what book is that? 
 This book is a Register of Douglas District. 
 
 Q. Do you see any entries in that book? A Yes. 
 
 Q. What do you see? A. 1 see an entry in Section 8, Range 8, and Section 9, 
 Range 8, in Douglas District, in thf name of Frank Vicker Hobbs, in my writing in 
 
 [Hticil. 
 
 Q. When did you make this, Mr. Trutch? A. Well, I believe 1 made it on the— 
 I might find— on the return of these surveys and their being plotted and placed on the 
 
 A. (Looking at book) 4° 
 
105 
 
 map tliat the lam! applied for by Mr. Hobbs was covered by those claims; and that I then 
 —therf is .1 memorandum to show that there was land there in the neighborhood — that 
 there was a claim of Hobbs'. I put it there in pencil in the Register Hook in order that it 
 might be a guide in dealing with the land. 
 
 Q. Looking at that plan Mr. Trutch and looking at the plan on the conveyance of 
 the first of May Exhibit T — where is this Lot situated on that plan before you? A. This 
 is situated in Sections 10 and 11 and Range 8. 
 
 Q. The lot described in the conveyance, Exhibit T, that is on that plan marked 
 what? A. In Sections 10 and 11, Range 8. Douglas District, and a portion of it in 
 Cranberry District (referring to Exhibit Z.) 
 
 Q. But where is it shown on that map? I want to knew where this land is shown 
 on that map before you? A. It is shown here to be north and east of the land that the 
 receipt was given for. 
 
 Q. North and east of the land the receipt was given for. What is it colored? A. 
 Yellow. 
 
 Q. Colored yellow And is the piece of land shown in the conveyance, Exhibit T. 
 I'he same as the land mentioned in your receipt? A. No. 20 
 
 Cros.s-Examinei) bv Mk McPhillips: 
 
 Q. Now Mr. Trutch you remember being examined by me before the Registrar? 
 A. Yes I do. 
 
 Q. And you remember my ask.ng you whether you had told the plaintiff anything 
 as to the reserving minerals or other reservation.'^? A. I don't remember particularly. 
 
 Q. I will now refer you to page 23 of your ex miination: " However, you did not 
 |)ut it in the writing. Do you remember telling Mr. Hobbs that you only sold him the 30 
 surface? (A.) I do not remember telling him personally." A. Yes. 
 
 Q. That was your answer then, was it not? A. Yes. 
 
 Q. And that is your answer to-day, is it not? A. Yes. 
 
 Q. Therefore your .answer at the commencement of your examination in chief by 
 Mr. Pooley is not to go except as qualified by you? 
 
 The Court — That is what Mr. Trutch said in his examination in chief. 
 
 The Witness: What I understood and intended was 1 said personally tliat — "^^ 
 
 The Court: You merely spoke of your general custom? A. Yes. 
 
 Q. And you assumed that you must have followed your usual custom? A Yes 
 
 Q. Had no reason to depart from it. 
 
 Mr. McPhillips: Q. Whilst you say that aj. to the general custom, you do not con- 
 iipct the Plaintiff at all with any statement of that kind? A. Yes, I do— it is my belief 
 that I told him. 
 
io6 
 
 Q. Your belief? A. Yes; that I did not make an exception in this case; that I 
 must have told liim as I told others. Hut what 1 meant was, ! could not remember him 
 personally. 
 
 Q, You cannot remember telling him personally? A. That is what I meant; th.-.i 
 1 could not remember telling him individually in connection with this case, that I did not 
 remember him. 
 
 A. 
 
 Q. And you did not put it down in the agreement of the 28th November, 1889? 
 Put what down? 
 
 10 
 
 20 
 
 Q. Any reservations? A. I did not. 
 
 Q. No. Now you have looked at this plan, which my learned friend showed you, 
 and you say that in your opinion that if the land had been described — you assumed that 
 when it said west of Louis Stark's Crown Grant, it was to be west then within what lines? 
 A Within what lines? 
 
 Q. Yes. West? A. West from his Crown Grant. 
 
 Q. You put it within lines which would run paniUel with the north and south boun- 
 dary of Louis Stark's Crown Grant, did you not? A. Yes. 
 
 Q. You assumed when you said west, it would be west within the parallel lines of 
 the boundaries of Louis Stark's Crown Grant? A. Yes. 
 
 Q. North and south? A. Yes. 
 
 Q. Therefore you read west, strictly speaking, as ;istronomically west, no variation 
 .it all? A. No; I understood west to mean vest 
 
 Q. Will you say now, Mr. Trutch, at that time when you wrote out tbat receipt 
 that you meant it to be .so stereotyped, so unalterable, that it had to be absolutely west 
 .istronomically without a variation? A. Yes, the boundaries of these lands had to run 1030 
 the cardinal points, as they-- 
 
 Q. No, but confine yourself to my question. 1 say, did you when you wrote west 
 mean that west should be so unalterable that it had to be west within those lines that you 
 mentioned? A. Yes. 
 
 Q. You maintain that? A. I meant west to be west. 
 
 Q. Although you knew the purchaser, Mr Hobbs, was not a surveyor? A. 1 km w 
 that he was not a surveyor. I settled this in consultation — the position of this in consul- 
 tation with him in the office — this application before me. 40 
 
 Q. This application before you, exactly — that is what I want to get at? A. And 
 I had to settle it in consultation with him because my instructions were that the dimen- 
 sions of the claims were to be 40 by 40 chains, or 20 by 80. And as he said nothing 
 aliout it, the shape of it. in his application I must have settled the terms with him in the 
 office, the shape of the claim, when I gave him this receipt. 
 
 Q. However, Mr. Trutch? A. Otherwise, of course, I did not know the shape 
 al out it, anything more than it naturally had to follow 40 Ly 40, or 80 by 20, v.nd therefore 
 I must have fixed on this, and he having accepted it I must have arranged it with him. 
 
I b 
 fro 
 Yc 
 
 upi 
 
 PO! 
 
 A 
 
 tiir 
 Yc 
 for: 
 cor 
 
 tOi 
 
 nut 
 
 wh( 
 mo 
 
 his 
 (lid 
 
lO 
 
 2C) 
 
 107 
 
 Q. I nm not dealing with that Mr. Trutch. If you will kindly follow my ([ucstions. 
 I bring you to the application. The specification reads as follows: (reading description 
 from application) You have just told me that you had this application before you? A 
 Yes. 
 
 Q. Therefore you had notice of the fact that the Plaintiff Mr. Hobbs had been 
 ujion the ground? A. I had notice of it. 
 
 Q. Yes, that he had been on t'^e ground? A. Yes, 
 Q. From him? A. Yes 
 
 Q. That is what it says; it speaks of a ridge and Berkeley's Creek, and a corner 
 post and a swamp? A. Yes. 
 
 Q. Your intention was to give him the land he had been on and was applying for? 
 A. The land that he was applying for. 
 
 Q. Certainly A. As stated in his application. 
 
 Q. As stated in his application. The intention was to give him land that he had 
 been on and was applying for and no other land? A. Commencing from the starting 
 |)()int that he named to give him 160 acres as described by him. 
 
 y. But you had not been up in the country there at all? A. No. 
 
 O. You did not know anything about its local conditions? A. I did not. 
 
 Q. You knew though that it was a sparsely settled and timbered country? A. A 
 timbered country; I had reason to suppo.se so and believed it to be. 
 
 O. And you made out the best description you could from his application? A. 
 Yes, on consultation with him. 
 
 Q. And it was your intention throughout to give him the land that he was apnlyinc 
 lor? A. Yes. 3" 
 
 Q. Now, you told my learned friend, Mr. Trutch. that this land is carried out ac- 
 cording to this hard and fast rule that you were asked— A You must have some rules 
 to go by. 
 
 Q. We are coming to hard and fast rules now, but the\' were rather loose rules in 
 1S89, were they not, loo.se rules in 1889, had to te? A. Yes. 
 
 Q. You would fetch it out to where it is marked blue on the map if you carried it 
 out on this hard and fast rule? A. Yes; that is according to the written description. 40 
 
 Q. Now, I was a little astonished to hear you say this to my learned friend, that 
 when you found that the land could not be placed where the blue mark is here— you 
 moved it over and put it « here the brown was? A I moved it nearer to Stark. 
 
 Q. Well, was not the Plaintift" concerned with the question at all? As to whether 
 his land should be where it is blue or where it is brown, or where it is yellow? You just 
 (lid that yourself? A. I just did that myself. 
 
 O 
 
 At your own motion? A. It was my own niotioa 
 
lO 
 
 20 
 
 108 
 
 Q. It was not your intention to give him a clifTfrcnt farm than what he w is on and 
 applied for? A. The description statin^j and calling for about two miles west of Stark's 
 claim; the land at two miles being occupied, I moved him half a mile or so nearer to 
 Stark. 
 
 Q. Yes. A. On the the same line that he gave, or west from Stark's place. 
 
 Q. At the same time, Mr. Trutch, the Defendant Company according to these hard 
 and fast rules, would have been compelled to convey him this blue block, would not that 
 he the fact? A. If it was unoccupied. 
 
 Q. If it was unoccupied. There is nothing about occupied about the agreement of 
 the 28th November, 1889? A. Well, it was ail indefinite, there had been no surveys 
 there at the time. He had not had it surveyed. 
 
 Q. The fact of the matter was the Company could not convey him t'e blue block? 
 Wasn't that the fact? A It belonged to someone else. 
 
 Q. They could not convey it to him? A. They could not convey it to him. 
 
 y. Therefore it was to the advantage of the Company to put him somewhere else, 
 wasn't it? A. I moved him nearer. 
 
 Q. It was to the advantage of the Company, though, to put him somewhere else? 
 A. That being occupied I moved him 1 ere (indicating); if he had declined to take it he 
 could have received his money back again. 
 
 Q. Yes; that is your notion of that? A. That is my notion of that. 
 
 Q. '. ou never communicated the fact to him? A. No, I did not. 
 
 Q, Never thou[^'"t that it was of sufficient iinportnnce to advise him? A. No. 
 
 Q. Throughout all these years that you had placed him — A. So much nearer^ — 
 to notify him that that land was occupied. 3° 
 
 Q. You never notified him that you had moved him over? A. No, I did not. 
 
 Q. Did you ever make a plan and move him over like that on any plan in the office 
 (if the Company? A. I don't remember that I did. 
 
 Q. This is just a sketch that is made now? A. There is a — where is that — your 
 plan? (Exhibit " T " handed to witness). I .see there is a pencilled plan that has been put 
 here. 
 
 Q. That is in its correct position? A. That is in its correct position, oh yes. 40 
 
 Q. That is according to the Plaintiffs contention? A. Oh, but there ha.s been 
 one down below apparently. However, I did not put that there. I see that is in the other 
 
 place. 
 
 Q. You say, in any case, that you did not communicate to Mr. Hobbs the fact that 
 you considered that he was now a little further east than he was? A. I did not. 
 
 Q. The Company did not send any agent or surveyor into this territoi)' to find out 
 where Mr. Hobbs really was located? A. No. 
 
2() 
 
 log 
 
 y. They did not? A. Not that I :\m aware of; not during; the time I was there, 
 except the survey that was made of those five lots, tliat was the first information we liad 
 of the position of those lots. 
 
 Q, You know when you agreed to sell tlis land to Mr Hohhs that ho w.is going to 
 use it for agricultural purposes did you not? A, Yes, 
 
 (J. Now knowing that fact, didn't you think it was a little arbitrary to move his 
 farm around without any notice to him at all, and he would be goii.g on in the face of his 
 application and making improvements and so on and find out that hi'* farm was in a very 
 different place? A. Well you see it was necessary to nio\c him, the ground proved to '" 
 be occupied by other parties. 
 
 Q. Therefore he could not be there? A. I could not move him 
 
 Q. He could not be there i)ecausc it was occupied by others, A. He could not 
 i)e there legally. He may have been in possession of some of the land claimed by the 
 other parties, I could not tell 
 
 Q. Hut the assumption would be that h( would not be at th'.-biwL- point because it 
 was occupied by others? A No, I do not see that at all. He may have been there in 
 occupation of property, of the same land, I could not tell yo\i that. 
 
 Q. But even if he were and had his farm there it would still be very arbitr.iry to 
 move him would it not? A. Because it frequently happens tliat there are two or more 
 settlers on the same piece of land, or on portions for that matter. 
 
 Q. You know as a matter of fact now, Mr. Trutch, tliat Lots 2 and 3 were occu- 
 pied by settlers, were they not, at that time? A. I didn't know where they were; I 
 knew that there were settlers there, but I didn't know where they were, the position of 
 them, until those surveys came in. 
 
 Q. Therefore«he could not have gone on to Mr. Ross' lot, or on to Mr. Holmes' lot, 3" 
 lie would have been a trespasser there, wouldn't he? A. I suppo.^tc he would. 
 
 Q. The fact of the matter is that these lots in this neighbourhood were described as 
 Lots I to 6, and we are at 6 now in this section? A. Yes. 
 
 Q. And when you conveyed the land, the first one was Donahue, because it is No. i? 
 A. Yes. . 
 
 Q. And he was the first .settler? A I think so. 
 
 Q. And the next one was two, and he was the next settler? A. Yes. It docs not 4° 
 loilow from the numbering of the lots that the>' are the date of acquiring the propertj— it 
 does not follow — they were numbered in that way by the surveyor. 
 
 Q. No. I was Donahue, No. 2 Ross, No. 3 Holmes No, 4 Blood, No. 5— A. 
 I'ive is there; it is not mentioned. 
 
 Q. 5 is not mentioned? A. That was surveyed at the same time as the others and 
 allotted to a man called Anderson, and he transferred subsequently to other parties and 
 the title was not issued to Anderson, but it was surveyed to him and numbered. 
 
no 
 
 Q. 6 is Mr. Hobbs. In consecutive order when Mr. Hobbs' land was to be con- 
 veyed to him it became Lot No. 6, did it not? A. It became Lot No. 6 in the District. 
 It is the next Lot that was surveyed in the District, and entered as Nn. 6. 
 
 Q. As a matter of fact you entered it in the book right away as Lot 6? A. I did 
 
 not. 
 
 Q. Perhaps you yourself did not? A. Because it was not ..urveyed. 
 
 Q. You referred to this book to my learned friend, your pencil memoranda putting 
 the land in Range 8, Section 8, and Range 8, Section 9? A. Yes. 
 
 Q. That is just you assumed that he would be over here? A. I made that note 
 after the suf-cys came in. 
 
 Q. 1 hat is when you moved it over? A And I wis then able to get some idea. 
 
 Q. Some idea, yes. A. Of where the land that was taken up was, that it was so 
 much nearer. 
 
 Q. And you put it in here, Mr. Trutch? A. I had no idea where Mr. Hobbs 
 l.md was, but that being occupied there I assumed that the lani' two miles west was so 
 much nearer to Stark's. 
 
 Q. You have told us how you did that, you just moved him nearer to Stark's? A. 
 i moved him nearer to Stark's. 
 
 Q. And you were not very sure about it, Mr. Trutch, because you p\it it down in 
 lead pencil? A. I put it down in lead pencil as a guide to anyone in the office having to 
 deal with those sections, that they might see there was a claim on it. 
 
 Q. If you had been sure of it you would have put it in ink? A. As soon as it was 
 surveyed then I should have made it permanent in ink and filled that up as others arc 
 
 ilnne. 
 
 10 
 
 20 
 
 30 
 
 O. Now, as a matter of fact, this Lot 6 turns out to be portions of 10 and 1 1, docs 
 i' not? A. Yes. 
 
 Q. And a portion of C ran bei District? A. Yes. 
 
 Q. Now, you look in this book that my learned friend showed you and you find 10 
 and 1 1 vacant still, don't you? A. Yes. 
 
 Q. Still vacant? A. 10 and 11 are still vacant. 
 
 Q. And the Company, now in the light of the facts that h?'e developed here, Mr. 40 
 Trutch — you ^an see that the Company has not thought that Mr. Hor>bs really was nn 10 
 and II? A. I cannot say that. 
 
 Q. Some of the other officers can. Do you not know — you told my learned friend 
 where Lot 6 was? A. I can see where it is on the ])lan. 
 
 O. You find now that he is really on 10 and 1 1? A. That that lot coloured ye' 
 low is on 10 and ii, I see that. 
 
 Q. That is. Lot 6 is on 10 and 11? A. Range 8. 
 
0th 
 las 
 
 is b 
 on 
 
 pen 
 and 
 and 
 boc 
 dov 
 Sec 
 ma 
 
 line 
 lien 
 
 A. 
 
 r e.- 
 
 His 
 
 afte 
 lino 
 
 A. 
 
 it. 
 pi.ic 
 
 of c 
 
& 
 
 III 
 
 The Court: Q. What is now on Exhibit " Z " marked Lot 6 " Hobbs " is by an- 
 other system of survey wf Sections lO and II? A. Section lO and ii, Ranj^e 8, Doug- 
 las District. 
 
 Q. How do you know Mr. Trutch that what is now shown as Lot 6 on Plan " Z ' 
 is by another system of survey Sections lo and 1 1 Range 8? A. Only— it is not really 
 on sections — it has never been surveyed; Douglas District has never been surveyed at all- 
 
 Q. How do you know? A It is only on paper to show 
 
 Q. Where is the paper? A. The object of my making the memorandum here in jq 
 pencil with reference to Sections 8 and 9, Range 8, Douglas District, was to designate 
 and show that that land in that locality was set apart for Hobbs This being occupied 
 and these sections never having been surveyed, the only use to describe this land in the 
 book or register was of these sectif ,is in Douglas District here in blank here and I put 
 down in pencil on that portion and in order to designate it in the book I had to call it 
 Sections 8 and 9 in this district to show that that land was covered by the claim of this 
 man in case it was applied for. 
 
 Q. Where are 10 and 11? A. They are there (indicating) 10 and ii are tnere 
 (indicating) 8 and 9 are there (indicating) That is the supposed boundary line of Cran- 20 
 terry District, the dividing line, but it has never been run. 
 
 Mr. McPhillips: Q. These are all the entries that you mad( yourself, Mr. Trutch? 
 .A. These are the only entries that I made in the books 
 
 Q. And that is just in lead pencil? A. That is just in lead pencil. 
 
 Q Well, now there was another matter found to be in error in the agreement I 
 see you referred to Bright District? A. Yes. 
 
 Q. There was never any question about that? A. No, there v.'is never any 
 .aestion. 3° 
 
 Q. You knew that was a mistake, and it ought to have been Douglas District? A. 
 
 O In the agreement it mentions Bright District, and there was never any misundcr 
 >.i.ia,ng about that; it was always Douglas District? A. No; it wa always Douglas 
 District. 
 
 O. And then, of course, this agreement had to be looked at with a little elasticity 
 after ail? A. At that time the districts were unsurveyed. 
 
 Q. You did not stick closely to th:: question of Districts as you did to the parallel 
 lines to produce them? A. What? 
 
 Q. You did not stick as closely to the question of Districts as to the parallel lines? 
 .A. No, I made a mistake there with regard to Bright, evidently. I must have written 
 It. Hut as far as the description of the land is concerned, it is placed — its {Position is 
 pl.iced by the connection given from the corner of the Crown Grant of Louis Stark's claim, 
 " h'ch is a surveyed and located tract of land in t'ranberry District. And the connection 
 of course is with that. 
 
 40 
 
112 
 
 Q. I believe when you were appointed Land Commissioner, Mr. Trutch, some pub- 
 lished advertisement appeared in the press? A- Yes, soon afterwards. 
 
 Q. Have you got a copy of that? A. I ha\e a pencil copy of it here which 1 took 
 from the Colonist Office. Do you wish me to read it? 
 
 Q. Yes, I think I would like it to go in. A. (Reading.) " Flsquimalt and Nanai- 
 mo Railway Company, Land Department. Notice to Claimants, Under the Act relat- 
 ing to the Island Railway, the Graving Dock, and the Railway lands of the Province, 
 the Company is now prepared to issue conveyances of title to all claimants entitled to the 
 same under the provisions of the above Act, and who have fulfilled the requirements of''' 
 the British Columbia Land Act, 1884. R. Dunsmuir, President. John Trutch, Land 
 Commissioner, Victoria, H. C, July 25th, 1887." 
 
 Q. Now, that appeared when and where? A. In the Colonist of the 25th. 
 
 Q. Of July, 1887? A. Yes; July the 2Sth or 26th; it might have been pub- 
 lished the next day. 
 
 Q. You told me Mr, Trutch, in the Examination, speaking of this record, and that 
 name, Frank Vicker Hobbs, in pencil there at page 59 of the book. I asked you this 
 i|uestion on page 20: " (Q, ) But these entries you are talking of now would be when the ^" 
 sale was finally completed by the issuing of the deed? (A.) When I had the survey 
 made and I could describe it as a permanent record," A. Yes; then I filled up the 
 Register in ink 
 
 Q. In ink, yes, but you put it in u hile it was in its embryo state? A. Yes. 
 
 Q. In pencil. And it was to be crystallized afterwards by putting it in writing when 
 the survey was made? A. Yes. 
 
 Q. And of course there might be a variation as to its position? A. There might 
 lie a variation as to its position. It might be found t.) be in another section when it was ^" 
 surveyed. 
 
 Q. Yes? A. Or in another position rather, or section. 
 
 Re Examined by Mr, Pooley, 
 
 Q, My learne.1 friend asked you here about if the Company sent out a sur\eyor to 
 survey this land for Mr. Hobbs You said the>' did not send one. What was the custom 
 of the Company? A, The custom of the Company was to accept— to allow the settlers 
 to appoint their own surveyors subject to approv il by the Company. 
 
 y. And they made their own surveys? A, And they made their own sur\eys 
 
 Q, With reference to this application here of Mr, Hobbs, you coul<! not tell that 
 land was occupied until the other surveys came in? A. I could not tell, of course, 1 
 Imicw nothing. All I knew about it was what he told me. 
 
 Q. You have spoken about a notice advertised in the Colonist? A. Yes, 
 
 Q, That the Companj' was prepared to issue grants to all claimants of land who 
 li id fulfilled the requiremei.ts of the B C. Land Act of 1884. Was that with regard to 
 
 40 
 
113 
 
 sales? A. That was with regard to settlers under the pre-emption. That was to notify 
 the settlers that those who had not received their Crown Grants while the lands were be 
 ing administered by the Provincial Government would now receive them from the Com- 
 pany. 
 
 Witness stands aside. 
 
 THOMAS SINCLAIR GORE, being duly swnrn, testified. Kxamincd in chief lo 
 by Mr. Pooley. 
 
 Q. Your name Mr. Gore? A Thomas Sinclair Gore. 
 
 Q. Were you at any time a Commissioner of the Defendant Company? A. Yes 
 
 20 
 
 30 
 
 Q. Land Commissioner? A. Yes. 
 
 Q. When were you appointed that, do you know? A. In October '91 
 
 Q. During the time that you were Commissioner there had you anything to do 
 with the Plaintiff here, Mr. Hobbs? A. Yes, I remember Mr Hobhs coming to my 
 office once. 
 
 Q. Do you remember his writing you a letter? .\. Yes. 
 
 Q. That letter is in evidence here, 1 forget the date of it, E.xhibit '• D "—4th of 
 April, 1892 (handed to witness). Just look at that letter, will you; did you receive that 
 letter? A. Yes. 
 
 Q. (Reading the letter.) Now in reply to that letter, did you .send Mr Hobbs a 
 plan? A. Yes, sir. 
 
 Q. (Plan handed to witness, E.xhibit " F.") Is that the plan you sent him? .A 
 Yes sir. 
 
 Q. How did you come to make out that plan, Mr. Gore? A. I hunted up what 
 information we had about Mr. Hobbs' applic;ition; and found his application in the book, 
 and also Mr. Trutch's entry in Section 9 and 10; and from that 1 made this sketch. 
 
 Q. From that you made that sketch? A. Yes. 
 
 Q. And you sent that to Mr. Hobbs? A. And I sent that to Mr. Hobbs. 
 
 O. Did you enter that on any plan in the office? A. I think 1 put his name 0040 
 thf place on the jilan. 
 
 Q. (Plan handed to witness.) Now did you put his name on that section— on that 
 plan that you sent him; on any plan in the office? A. 1 think 1 did; I think I put it in 
 this. 
 
 Q. On this piece? A. Yes. 
 
 Q. Corresponding with the plan sent? A. Corresponding with the p!an sent; it 
 w as my motion to do that. 
 
114 
 
 Q. Do you see any reminder of the mark you made there, now? A. Yes I do. 
 
 Q. What IS on there? A. I cannot make out the initials but I can see Hobbs, 1 
 see some marks about that; I can see the name of Hobbs here chstinctly. 
 
 Q. That is in your writinj,'? A. 1 think that is my writing, yes; it is not clear 
 cnoufjh to be very sure of it, but 1 think it is. 
 
 Q. And that is the land that you thought at that time corresponded to his applica- 
 tion? A. Yes, that is the nearest land. 
 
 Q. According to the application Mr. Trutch had left in the office? A. Yes. lu 
 
 Mr. Pooley: I will put this in as an E.xhibit. 
 
 Document marked E.xhibit No, " 3." 
 
 Q, Now did you afterwards .see the Plaintiff? A. Yes sir. 
 
 Q. When was that? A. It was in the summer or autumn of 1892. 
 
 Q. Did you make any alteration of the position of that land after you had seen the 
 I'laintiff? A. Yes, 
 
 Q. Where did you alter it to? A. Further North. 20 
 
 Q. Further North. To the piece of the land which the Company subsequently 
 gave hi;T ? '\.. Yes. 
 
 Q. Why did you alter it? A. \t the instigation of Mr. Hobbs whilst he was at 
 my office. 
 
 Q. What do you mean by instigation? A. Weil at his request. 
 
 Q. When >ou were in the office, Mr. Gore, had you any instructions about the sal' 
 iif the Company's lands. A. Yes sir. 
 
 Q. What were they? 3" 
 
 Mr. McHhillips: I object to that. 
 
 The Court: This will be subject to your objection. 
 
 Mr. Poolc^; Q. What were your instructions there, .\lr. Gore? A. In the sale 
 of lands, that the minerals were reserved in all cases. 
 
 Q. Minerals were reserved in all cases. Did you whilst you were t'.iere sell any 
 minerals or coal? A. No. 
 
 Q. Your authority was limited to — A. To the surface alone. 40 
 
 Q. To the surface rights. Your authority was limited to the sale of the surface 
 rij^hts? A. The sale of the surface only. 
 
 Q. Did you make any entries in this book in regard to this land? A. I believe so. 
 
 Q. That is your entry there, Mr. Gore (indicating)? A Yes. 
 
 Q. What is your entry there; Mr. Gore? A. Number of lot, 6; name, F. V. 
 Hobbs; interest, 6 per cent.; acreage, 93, query — it was uncertain; price per acre, $300; 
 terms of payment, ist payment date when paid 28th November, 1889; amount paid, $120 
 
off 
 
 Yc 
 
 VO! 
 
 An 
 Ik 
 
 the 
 
 Ian 
 of 
 
 did 
 wa 
 wa 
 
 qiK 
 doi 
 sati 
 tolc 
 
 Xo 
 
 the 
 
 tair 
 
lO 
 
 'I5 
 
 Q. That is your handwriting? A. Yes. 
 
 Q. At the time that Mr. Hobbs came in and spoke to you? A. At the time, yes. 
 
 y. It was made then? A. Yes, it was at the time that Mr. Hobbs came to my 
 office. 
 
 Cros-s Examined by Mr. McPiiillips. 
 
 Q. You remember being examined by me Mr. Gore, before the Registrar? .\. 
 Yes. 
 
 Q. Speai^ing about this tracing that j hi sent to Mr. Hobbs, that I think you said 
 \'ou prepared at his request A. In answer to his letter, yes 
 
 Q. That is dealing with surveys? A. Yes. 
 
 Q. Now, I asked you this question; "Well, what do you mean by his request? 
 Answer, That this land that I sent him on the sketch did not suit him." I'hat is what Mr. 
 Hobbs said, dit* he not? A. I did not understand your first question; I thought it meant 
 the (juestion; I tnought it meant the sketch that I first sent him. 
 
 Q. However, this first tracing that you sent him, the Plaintiff did say was not his 20 
 land? A. I don't remember the con\ersation that took place about it; but as the result 
 of it 1 changed the position. 
 
 Q. I asked you this question (reading same question and an.swer.) A. 
 Q. He objected to it, did he not? A. That is what I understand. 
 
 Yes. 
 
 Q. And then I said, " Yes, that is this tracing that you had sent him he contended 
 did not properly describe his land?' And you answered, " Yes, was not the land he 
 wanted." That is what he said? A. Yes, I understood that it was not the land he 
 wanted at that time when he was in my oftice. 3° 
 
 Q. Well, now. you thought it at that time. Well, now, I will read yon the next 
 question, " Well, didn't he say then that that was not where he built his cabin, or had 
 done his improvements?" And this is your answ cr: •' I cannot remember all the conver- 
 sation that took place between us. Rut I think that was the reason." That is what he 
 told you, wasn't it? A. I don't remember the conversation. 
 
 Q. Now. again, I ask you if this is correct (reading same question and answer again 1? 
 Now, that is what you answered me on your examination? A Yes. 
 
 Q. That is still correct, is it not? A. I don't remember t'e conversation as I said 
 
 40 
 
 then? 
 O. 
 
 O. 
 
 tainlv. 
 
 You don't remember this? A. No. 
 
 You don't remember having used this language to me? A. Oh, to vou, cer- 
 
 Q. You remember using this language to me? A. Yes but 1 don't remember the 
 conversation that took place between Mr. Hobbs and myself 
 
rer 
 
 res 
 
 Inr 
 to 
 
 tha 
 thi 
 
 wli 
 
 did 
 
 tha 
 «a 
 thi: 
 pai 
 
 <{U( 
 
 cri] 
 sue 
 An 
 
 con 
 
 in 
 
 bcf 
 
 scq 
 
 An 
 
 Coi 
 
 No' 
 
110 
 
 Q. liutthat is your answer, to-ilay the same as it was before tlie Regijitrar: " I cannot 
 remember all the conversation that took place between us. But I think that w;is the 
 ree-in " A. Yes. 
 
 Q, And that was what lie had built his cabin and done his improvements on, the 
 iiiiul he wanted? A. That may have been the reason; 1 don't rcmcmlwr enough nbout it 
 to say that it was the reason. 
 
 Q. Now I asked you another question; 
 tiiat that wa.* not his location where he built his house "? 
 think that that was it." A Yes. 
 
 ' Hut you do not remember his saying to you 
 Your answer to me was " I 
 
 lo 
 
 Q. Do you still think that that was it? Do you still think that? A. It may have 
 been it; I cannot swear that; I think it may have been it; it may have been it. 
 
 y. You told me that aV thiit time — " I think that that was it"? A. I can onl>' say 
 what I know, I do not knov, that. 
 
 Q Do you depart from that statement then? A. I iiht;ht think it was that; but I 
 did not know thfit it was that; I can only swear to what I know, 
 
 Q. "And later you sketched out the place, this particular Lot 6 "? A. 
 Q. " Yes, I put his name there " you did that? A. Yes. 
 
 Yes. 
 
 Q. Then I asked you this question: " Do you remember telling him at that time, 
 that of course the survey would define the property more clearly? " And j'our answer 
 was: "No, I do not know that I did. I do not remember." Then you were asked 
 tiiis question "At any rate there was no dispute between you about the land? The Com 
 pany had that land available?" And your an.swer was "Yes," Then I nsked you this 
 i|ucstion: "As a matter of fact Mr Gore there had to be a good deal of latitude of dcs- 
 cri|)tion in administering the land of the Defendant Company. I mean in the locality, ^o 
 siich as there was? There is no system of block survey, or section survey, is there? " 
 Answer, " No, there iins been none carried out there." That is the fact, is it? A. Yes. 
 
 Q. Then I asked you this que-ition: " I mean to say that in British Columbia t'-e 
 conditions are different than they are perhaps in the rest of Canada and the United States 
 ill that respect, is it not?" And your answer wns: " Yes, the land not being surveyed 
 before it is settled?" A. Yes. 
 
 Q. That is the fact, is it not? A. Yes. 
 
 Q. You still make those statements. Then I asked you this question: "The con-"^" 
 ■sequence is that each applicant's property must be a survey in itself, is it noi?" And 
 \our answer was "Very often." That is the fact, it is not? A Yes. 
 
 Q. Now I then asked you this question: " In this p:irticular case it is that is it not?' 
 .And your answer was, "Yes." You still .idhere to that? A. Yes 
 
 Q. You go on and say this: " Yes, but it was a rule of the office of the Defendant 
 Company that there should be no fractional portions of land" — to that you say "Yes." 
 Now I asked you this question, too: " I see you say here, 'The survey will have to be 
 
^17 
 
 made in such a way as to leave no fractional portions of land.'" That was also a rule of 
 the Defendant Company, was it not? A. Yes. 
 
 Q. Now, Mr. Gore, when you sent this sketch, which was E.xhibit " F," you did not 
 look upon it as being a hard and fast sketch, did you, and could not be altered, did you? 
 A- I don't know. 
 
 Q. And neither had you had your professional opinion of it that it could not be 
 altered? A. No, I had no reason for thinking so. 
 
 Q. Now, I refer yon to your letter, which was Exhibit "E." You say (reading jq 
 letter). You were go'tg as near as you could tell. That is all you did in that case in that 
 Exhibit " r " there. That was as near as you could tell; is that not the fact? A. Yes. 
 
 Q. So that there was still l.ititude as to that, as to the dc.ning of the property, was 
 there not? A Yes. 
 
 Q. Thf.t is, if Mr Hobbs happened to define his land in such a way as there were 
 irregular porti ms he could not have it that way? A. No. 
 
 Q. It had to be regular. Now I notice that each officer of the Company was im- 
 proving as to what land the Plaintiff really wanted. You happened to give him a little j^ 
 pnit of the land that he really wanted. You gave him part of Section lo. How did you 
 ha] len to do tha'.? A. I saw his original application and Mr, Trutch's receipt and 1 
 saw from that that he could not have the land that he originally applied for. 
 
 Q. Well now, just look at this? A. Because that was already covered 
 
 Q. You said you looked at Douglas District Book, and you saw what Mr. Tnitch 
 had entered there at page 59 of that book But I see ;\.u improve on Mr. Trutch, because 
 .Mr. Trutch had only given sections 8 and 9 you see here, this pencil men-.orandum of his. 
 He did not put Mr. Hobbs in 10 at all did he? A. I don't think I put hini in 10 either, 
 in that plan I sent him. ^ 
 
 Q. Yes, 1 think you did (plan hande ' to witness 1 Don't you find you put him in 
 10? A. Oh yes I have; I did not notice that. 
 
 O. So that you improved on Mr. Trutch; you were getting nearer Mr. Hobbs thpn 
 Mr. Trutch did. Now you had the same information before you as Mr. Trutch had you 
 nut? A. Yes. 
 
 Q. You had the application, you had a copy of the receipt, the agreement of the 
 j8th of No\ember? A. Well, the reason I put him up, I could not put liim on 8 be 40 
 cause that belonged to Anderson. 
 
 Q. That was against the Defendant Company if they had already dealt with 8? A. 
 
 Yes. 
 
 O. They dealt with 8 in Lot No. 5? A. Yes. 
 
 Q. And therefore Mr, Trutch sent him east, and you sent him north; isn't that the 
 fact? He said he found him on the blue place, and that was on the Lumber Company's 
 Imd? A, Yes. 
 
liin 
 pre 
 
 liin 
 
 I n 
 
 wit 
 
 the 
 
 Mr 
 
 tha 
 
 ilCt 
 
 the 
 
 ten 
 
ii8 
 
 Q. And he sent him east and did not tell him anything about it. And you sent 
 liim north. And Mr. Hobbs said after all tVcn to you that this did not i)\iite define his 
 property? A. Yes. 
 
 Q. However, you had done a little better, you had put him in lo, and you had put 
 him in 1 1 as well? A. Yes. 
 
 Q. Now, as a matter of fact, Mr. Gore, his land had been found to be lO and i i; 
 I mean called now 6, it is in lo and 1 1? A. Yes 
 
 Q. It has been called Lot 6, has it not? A. Yes. iq 
 
 Q. Well, you said there was i o dispute about the land anyhow. 
 
 Mr. Pooley: I do not think Mr. Gore has said so. 
 
 Mr. McPhillips: Q. Well, did j'ou s^•' there was no dis|)ute when you were dealinfj 
 with the Plaintiff as to the land? There was ,-. dispute, was there? A Do you mean a 
 dispute between Hobbs and myself? 
 
 Q. Hobbs and the Company about where this land was, there was no dispute, was 
 there? A. There was no dispute, the only difference there was. was that my altering the 
 position of it on the plan, and Mr. Hobbs came to my office 20 
 
 Q. It was just a case of arrivitig at the truth about the whole matter, wasn't that the 
 whole thing? You had done a good deal better than Mr. Ti iitch. because you had given 
 him a ])art of the land he was entitled to according to hi-, notion, <in this h.xhihit •' F." 
 Now in the Land Sales Book of the Comp uiy did \"n make any entries, do you know, 
 Mr. Gore? There is a book callerl the Land Sales ok here? A. No; 1 don't think I 
 made any entries in that book at ;iii. 
 
 Q. I think thes- are in Mr. Solly's writing; but fro tin r.' rds that you found — 
 that would be in 1892, wasn't it — you found in 1892 when you wrote that letter — you 'o .nd 30 
 
 iicting in your capacity as Land Commissioner of the Defendant Coiniuuiy. on the 
 ■April, 1892 — that is when j'ou wrote this letter, which is Exhibit " K." yctu found 
 the application of the F^laintiff. did you not, Mr. Gore? A. Yes 
 
 Q Which is now here, and which is Kxhibit 
 lia\e seen ,t. 
 
 H 
 
 Did you look at th 
 
 of 
 there 
 
 .\. 1 
 
 Q. (Handed to witness.) That is it? A Yes 
 
 O. You saw that, which is Kxhibit " B"? A Yes 
 
 A 
 
 O. And you saw Exhibit " ('," that was the contract itself, this (handed to witness)? 
 Yes, a copy of this. 
 
 40 
 
 O. You saw a copy of this. Just read it through and see if it was in the same 
 terms? .\. (Doing so). Yes. I believe it is the same. 
 
 Q. What you saw was a copy of that? A I believe so. 
 
 Q. And you saw what other records there were in the book? A. Well, that Doiig- 
 liH District entry I saw. 
 
119 . 
 
 Q. You saw that Douglas District entry anyhow, Mr. Gore; and Bright District was 
 :\ mistaite? A. Yes. 
 
 Q. Having all that information before you, jou sketched out this tracing, which is 
 F.xhibit"F?" A. Yes. 
 
 Q. And to the best of your ability at the moment w th the informatii n at hand, you 
 coloured that red there as being Mr. Hobbs' land? A. Yes. 
 
 Q. Now, I asked you this question, dealing with this aijplicatioii, which is E.xhibit 
 " H," and the writing of the 28th of November, w hich is Exhibit " C: " " Well, which is xq 
 the clearest? You have two writings before you, the application and the writing of the 
 jSth of November, 1889. Which is the clearer of the two?" And your answer was: ' 1 
 do not think there is very much choice." That is still your view, I suppose, of it? A. 
 Yes. 
 
 O. Then you were asked the question, " Arc they antagonistic?" And your answer 
 was, '• Not necessarily." A. Yes. 
 
 Q. Between the application and the writing of the 28th of November, so that even 
 you, without communicating with anyone who knew the facts, Mr Gore— bec:iuse you 
 did not communicate with anyone with regard to what transpired at the time — you were 
 able by the records of the Compan_\ to define Mr. Hobbs' land as defined on Exhibit "F" 
 wiiere it is colored red? A. Yes 
 
 y. That is to the best of your ability you i)laced him wi.ere that is colored red 
 there? A . Yes. 
 
 y. Now Mr. Gore, in your dealings with the Plaintiff, at least in the different mat- 
 ters that came under your notice with the Plaintiff, and anything that he had to do with 
 the Defendant Company — anything coming under your administration as I,and Commis- 
 sioner, was all relative, was it not, to this agreement of the purchase of the 28th of No- 3° 
 \ember, 1889? A. You mean there was only the one transaction 
 
 O. It was relative to this transaction, you went back to it, did you not? A. Yes. 
 
 Q. It was relative to that? A. Certainly. 
 
 Q. Certainly, relative to that; there is no doubt about that? A. No. 
 
 Court adjourned for an hour. 
 
 At 2:15 p.m. Court met pursuant to adjournment. 
 
 40 
 
 20 
 
 LEONARD HOLLIS SOLLY, being duly sworn, testified. Examined in chief by 
 Mr. Pooley: 
 
 Q. Your name Mr. Solly? A. Leonard Hollis Solly. 
 
 Q. What is your occupation now Mr. Solly? .\. I am the Land Commissioner of 
 the Esquimau and Nanaimo Railway Company. 
 
 Q. How long have you been so? A. Since May 1894 
 
th< 
 
 ms 
 mi 
 
 Tl 
 
 lor 
 pa 
 nol 
 
 IDl 
 
 cot 
 
 1)1 
 
 wh 
 Co 
 paj 
 
 nf 
 
 fro 
 
 me 
 
ISO 
 
 Q. How long have you been in the Land Office of the E. & N. Railway Company? 
 A. Since July 1887. 
 
 Q. Since July 1887. Do you know what instructions were given with reference to 
 the sale of the Company's lands? 
 
 Mr. McPhillips: I again object my Lord; the same objection as before. 
 
 A. At what time? 
 
 Q. Since you have been in the office? A. I do; I know. 
 
 Q. Mr. Trutch was the first Commissioner? A. Yes. 
 
 Q. And then Mr. Gore? A. Yes 
 
 Q. And then yourself? A. Yes. 
 
 Q. What were the instructions given to .sell the Company's lands? A. The 
 instructions given were simply to sell the surface rights of the lands 
 minerals. 
 
 Q. Have those instructions been continued in the office until the present time? 
 They have. 
 
 10 
 
 In no case anv 
 
 A. 
 
 20 
 
 Q. P'rom the time Mr. Trutch went there to the present time? A. They have. 
 
 Q. And you have been in the office continuously? A. 1 have. 
 
 Q. Do you know the Plaintiff here, Mr. Hobbs? A I have seen !iim. 
 
 O. When did you first see Mr. Hobbs? A. He came to my office in the E.squi- 
 malt & Nanaimo Railway Conipaiiy's offices in November, 1895, 
 
 Q. What did he comt with reference to? A. To some land which he had made a 
 payment on. 
 
 Q. What conversation had you with him? A. He came into the office and I 
 looked at him, and I said, " What can I do for you?" And lie said, '' I wish to make a 
 payment on some land in Douglas District; my name is Hobbs '' I said to liim: " I can- 
 not accept any further payment on tiiis land without further consulting Mr. James Duns- 
 niuir.'' And 1 left Mr. Hobbs in the office 
 
 The Court: Q. '' I cannot accept any money?" A. Any more money w.thout 
 consulting Mr. James Dunsmuir I left Mr. Hobbs in mj' office and went into Mr. James 
 Dunsmuir's private room, where I saw Mr. James Dunsmuir. I too': with me — 
 
 Q. Nevermind. When you came back, what happened? A I told Mr. Hobbs 4^ 
 when I came back that 1 could not accept any further payment on this land; that the 
 ( ompany considered he had forfeited his right and interest in this land by not making his 
 payments; that the full amount of the purchase money was overdue, and that statements 
 I if account asking for payment of these instalments and interest had been sent to him 
 irom time to time and that he had taken no notice of them 
 
 Q. When you told him that the statements had been sent to him requesting pay- 
 ments of the money, did he make any reply to that? A. He said he had never received 
 .iiiy. 
 
not 
 
 a bo 
 
 Ho 
 
 Mci 
 of 
 
 Hoi 
 
 pon 
 had 
 
 put 
 
 liav( 
 
 Keci 
 
 tie c 
 to tl 
 
 Dur 
 
 letlc 
 
121 
 Q. Never received them? A. Never received any. 
 
 Q What occurred after that? When did you sec Mr. Hobbs again? A. I did 
 not see Mr. Hobbs — 
 
 The Court: Was that all that took place then? A. Mr. Hobbs said " Well what 
 about my $120"? And I said to him " Well I expect that had been forfeited " 
 
 Q Was anything further said at that time? A. I do not think so; I think Mr. 
 Hobbs went off. 
 
 Q. What next happened in regard to it, Mr. Solly? A i received a letter from 10 
 Messrs. Hunter & Duff, the solicitors, acting on behalf of Mr. Hobbs, respecting this claim 
 of Mr. Hobbs. 
 
 Q. Did you see Mr. Hobbs after that, after receiving that letter ilid you see Mr. 
 Hobbs again? A. Not after I received that letter. There was a good deal of corres- 
 pondence between my.self and Hunter & Duff, and it was not until that correspondence 
 had ceased when by instructions from Mr. Dunsmuir I went to see Mr Hobbs. 
 
 The Court: Those letters have not been put in; I should think they ought to be 
 
 put in, 
 
 20 
 
 Mr. McPhillips: I am quite willing to put it in; but I cannot prove it strictly. 
 
 The Court: It is not a question of strict proof. 
 
 Mr. Pooley: I have copies of the letters received. 
 
 Mr. McPhillips: I have no objection to its going in then. 
 
 Q. Is that the letter you receivo! from Messrs. Hunter & Duff (handed to witness?) 
 A. That is. 
 
 The Court: You may as well put it all in as one Exhibit. 
 
 The correspondence was put in evidence, marked Exhibit No. 4 
 
 Mr. Pooley: Q. Did you reply to that letter? A. I did 
 
 Q. Is that the letter you sent to him— the copy? A. That is a correct copy. I 
 liave checked those copies myself. 
 
 Q. Now what induced you to write that letter that it would not be accepted? A. 
 Hecause I had had several conversations with Mr. Dunsmuir. 
 
 Mr. McPhillips: Now I object my Lord; I do not know vv'iether it will or will not 
 be evidence, but 1 object if anything is going to be put in now that was not communicated 4° 
 to the Plaintiff. 
 
 Mr. Poolej-: No, I am not going to put in ;my conversation between him and James 
 I'unsmuir. 
 
 Q. Had you ever had any communication with Mr. Hobbs before you wrote that 
 litter? A. No, only the first interview in my office. 
 
 y. Did you again write to Messrs. Hunter & Duff (letter handed witness j? A. Yes, 
 1 wrote to them on December 12, 1895 (reading letter). 
 
 30 
 
laa 
 
 Q. In reply to that letter did \ on get a letter from Messrs. Hunter & Duff (letter 
 handed witness)? A 1 did, dated 23d December, i8ys (reading,' it;. 
 
 Q. Is that another letter you received from Flunter & Duff, the 30th of January 
 (handed to witness). A. That is 30th of Januar)', 1896 (reading letter. ) 
 
 Q. Did you write that letter to them (handed to witne.ss)? A. And 1 replied to 
 them on January 31st. 1896 (reading the letter). 
 
 The Court. Q. I he next letter was a letter to the Plaintiff himself, wasn't it? A. 
 I cannot say; 1 h.ive a schedule of all these letters here if 1 can look at it (looking;. My [q 
 last letter to Mr. Hobbs is No. i 52. 
 
 Mr. Pooley; Q. Third of September, i8g6, No. 160/96. Is that the letter you 
 received from Hunter & Duff? A. Ihat is the letter that I received (reading letten that 
 was delivered by messenger. 
 
 The Court: Q. '.Vhat was the object of sending those communications to Hunter & 
 Duff and then addressing the Plaintiff personally? A. I was instructed by Mr. Dunsmuir 
 to see Mr. Hobbs jiersonally and make some arrangement with him, 
 
 Q. Well wht n did you again .see Mr. Hobbs? A. Do you mean the next time ,0 
 after my interview with him in the office? 
 
 y. Ves. A At his store on Douglas Street. 
 
 When? A. In the early i)art of 1896, February I think. 
 
 When? A. In February 1896. 
 
 What occurred t'len? A. I took a plan u|) to Mr. Hobbs and told him that 1 
 •vas instructed to sec him and make some arrangement about his land, and I said to him: 
 ' You must be well aware Mr. Hobbs, that the land you applied for is not the land which 
 ii shown here on this plan, " and he said Oh ye-; he « as well aware of the fact, that he had 30 
 been furnished with the tracing of the land he desired. 
 
 Q. Did he say who by? A No, he did not state. 
 
 The Court: Q. You snid " Are you aware that the land you applied for — A — is 
 not the land that is shown on this tracing " 
 
 Mr, Pooley. y AikI wiiat did he reply? A He replied he was well aware of 
 the facts that he had Ijcen furnished with a tracing showing his land. 
 
 O. Did he tell you who he had got the tracing from? A. No 
 
 O. What else was said at that time? A. 1 told him if he would come down to the 
 'iffice and talk the matter over with myself and Mr. Dunsmuir it could most likely be 
 •irrdPged for him to have the land which he wished to get as shown on the plan which I 
 exhibited to him. 
 
 Q. Did Mr. Hobbs then conic down to the office? A. At a future date he did. 
 Q. At a future date did he come down to the office? A. He did. 
 y. About what date did he come down? A. 1 don't remember what date he came 
 1^1' nvn; it mu.st have been some little time after that. 
 
 
ten 
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 cau 
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 terd 
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 20 
 
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 Q. Some little time after that? A. Some linle time after that, possibly a wctk or 
 ten days; I don't remember, it inijjht ha\e been more than that; I have nothing' to fix the 
 <latc on which he came down, in my mind, 
 
 Q. Hut you know he iliil come? A. I know he did come, yes. 
 
 Q. When he came do you recollect what occurred? A. Very little took place, be 
 cause Mr, Dunsmuir was not in I went in to see if Mr, Dunsmuir was in, so th.it 1 could 
 take Mr. Hobbs to sec him; and Mr. Dunsmuir was not in; and I think hardlj' anytliin^j 
 t(X)k place. He went away. 
 
 Q. Now, in his evidence yesterday, Mr. Hobbs said this; "I went down to the office 
 and saw Mr Solly; he showed me a plan and told me that in survcyiii(i the coal lands the 
 surveyors had located my cabin and knew exactly my lines, and I aske.l Mr. Soil)' if he 
 would give me a tncing of it, and he said he would do so, which he eventually did," Did 
 that occur at that time? A, Not at that time, 
 
 Q. When did it occur, or did it ever occur? A. That occurreil after I had written to 
 Mr, Hobbs and told him that the Railway Company were prepared to give him a convey- 
 ance of this land on his having' the land surveyed and paying the balance of the purchase 
 money and interest and title lee. 
 
 Q. Yes, After you had written that letter? A. After ' h J written that letter, 
 it had not been settled at that time that Mr. Hobb< was to have the land. 
 
 The Court: Which letter is that? 
 
 Mr. Pooley: The letter telling him that he could complete his jjurchase 
 
 The witness: After the letter .stating that he might complete his purchase? 
 
 Mr. Pooley: Q. That \\ as the time that this conversation occurred, Mr. Solly? A. 30 
 Which :onvcrsation? 
 
 Q. That he states: "I went down to the 1 ffice an>l saw Mr. Solly, he showed me a 
 plan and told me that in surveying the coal lands llie surveyors had located my cabin and 
 knew exactly my lines; 1 asked Mr. Solly if he could give ine a tracing of that and he 
 s.iid he would do so, which he eventually did." A. He did ask me tofu.-'iish a tracingto 
 enable Mr, Priest — it was not at my second intcrvir -■ with Mr. Hobbs at the office. 
 
 Q. Did you state that this conversation took place after you had written that letter? 
 A, I have rot admitted the whole of that conversation yet; anj' conversations that took jq 
 place between Mr. Hohibs and myself in regard to furnishing a tracing of his property took 
 |)!ace after I had written to him stating that the Company were prepared to convey this 
 property to him, 
 
 Q. Perhaps you did not undcr.-^tancl my que-^tion Mr. Hobbs in his c\ ilence yes- 
 terday stated this: " I went down to tic office and saw Mr. Solly; he showed me a plan 
 and told me that in surveying the coal lands the surveyors had located my cabin and 
 l<tiew exactly my lines; 1 asked Mr. Solly if he could give me a tracing any that he sa d 
 lie would do so, which he eventually did?" A. I don't remember the whole of it. 
 
pi 
 
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 th 
 
 111 
 so 
 
 th 
 
 lit 
 th 
 
124 
 
 Q. What part do you remember? A. I remember replying to Mr. Hobbs that I 
 would furnish him with a tracing showing where his land was according to the plans which 
 we had in the office. 
 
 Q. Then you do not recollect the conversation in which he says you showed him a 
 plan and told him that in surveying the coal lands the surveyors had located his cabin? 
 A. I don't remember that. 
 
 Q. You don't remember that? A. No. 
 
 Q. You .subsequently did give him a plan of the land? A. I did jq 
 
 Q. That plan is iti evidence here somewhere (plan handed to witness)? A. That 
 is tne plan I furnished him with. 
 
 Q. Exhibit " I." A Yes 
 
 Q. When did you first know that Mr. Gore had furnished him with a tracing? .A. 
 1-rom the copy of the letter — from reading the copy of Mr. Gore's letter to Mr. Hobbs in 
 which he states that he encloses a tracing. 
 
 Q. When did you first see the tracing? A. In Mr. McPhillips office after the 
 first examination — after Mr. Trutch's e.xamination I saw it, 20 
 
 Q. After Mr. Trutch's examination? A Yes 
 
 Q. In this action? A. iNo, I do not think it was after Mr. Trutch's examination, I 
 think it was after your examination of Mr. Hobbs. However, it was at the commence- 
 iiic.it of this ca.sc; I called at Mr. McPhillips' office in the evening; he was not there, but 
 somebody .showed me the tracing. 
 
 Mr McPhillips: Q. That w.is Mr. Anderson? A. I think so: however i saw it 
 in your office. 
 
 Mr. Pooley: Q. Have you .seen this plan? A. I have. 3" 
 
 Q. Have you seen the receipt given by Mr. Trutch on the 28th of November, 1889? 
 A I have. 
 
 Q. According to the statements in that receipt, where would you locate the land 
 there described? A. From the receipt? 
 
 Q. From the receipt given by Mr. Trutch? A. It would be o'er here (indicating 
 on Exhibit " Z ") 
 
 Q. I am now referring to Exhibit " C" - " Commencing at a point about two miles 
 west of Louis Stark's Crown Grant" (reading the description). Now, where would you "^^ 
 locate this land, Mr Solly, on that plan from this description? A If I assumed that the 
 north-west corner post of Starl.-'s Crown Grant was the starting point then the position of 
 the land as coloured iiere blue 'vould be correct. 
 
 The Court: It would be the lard co'ored blue on Exhibit " Z '? A. Yes, 
 
 Mr. Pooley: Q. Can you show nic on that map, where is the land that was con- 
 veyed in the deed? A. That colored yellow. 
 
 Q. Thit coloured yellow; you are aware of that fact? A. 1 am, yes. 
 
Yei 
 A 
 
 lan( 
 
 Thi 
 liov 
 
 wer 
 
 was 
 
 28tl 
 
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 125 
 
 Q. That is the same land as mentioned in Exhibit " T " (handed to w itness?) A. 
 Yes. 
 
 The Court: Q The land in the Crown Grant is marked yellowish on the plan "Z?" 
 A Yes. 
 
 Q What is the land there colored brown? A. I believe it corresponds with the 
 land shown on the tracing furnished by Mr, Gore. 
 
 Cro.ss-Examined by Mk. McPhillips. 
 
 Q. Now you speak of a time Mr. Solly when Mr. Hobbs came down to your office lo 
 That was at your request wasn't it? A. The second interview yes; I asked him to come 
 down. 
 
 Q. So that the time you went to see Mr. Dunsmuir the second, or the first? A. I 
 went to try and find Mr. Dunsmuir on the second time that he came down, Mr. Dunsmuir 
 was not in. The first time he was in I saw him at once. 
 
 Q. Will you tell me what time that was of the year? It was in November, 1895 
 
 Q. That was the 1st of November. A. Yes. 
 
 20 
 Q. And Mr. Hob!>s stated in his evidence that he handed you this agreement of the 
 
 28th November, 1889. that is E.xhibit "C," and you took it with you to Mr. Dunsmuir's; 
 
 did you do so on that occasion? A. I did not. 
 
 Q. You did not? A. I did not. 
 
 y. Was it on the second occasion you did then? A On neitlier. 
 
 Q. On neither? A. On neither occasion was the receipt produced. 
 
 Q. Well now, you did produce a copy of this receipt to Mr Dunsmuir at that time, 
 did you not? A. No. •^^ 
 
 Q. You did have a copy of this receipt. Exhibit " C," in the office? A. Certainly. 
 
 Q. Amongst records of the office you had that n[)plication, too, whic'' is Exhibit 
 " B "? A In the office, yes. 
 
 Q. What was Mr. Dunsmuir's occupation at that time? He was a Director and 
 Vice President of the Company; is that it? A. He was. 
 
 Q. He was actually the Managing Director, or Acting Manager? A He was Vice 
 President. 4° 
 
 Q. I mean acting as such; he was the Executive Officer of the Directors? A. I 
 [iresume so, in the absence of the President 
 
 Q. Didn't you go into the matter of this receipt of the 28th of November, 1889, 
 and this application? A. Who with? 
 
 Q. With Mr. Dunsmuir? A. Oh, yes, not at that dale 
 Q Not at that date? A. No. 
 
t}p 
 
lO 
 
 20 
 
 126 
 
 Q When was it you did, if you remember? A. Some little time after coal was 
 discovered in Douglas District, Mr Duiismuir sent for mc and asked me to produce the 
 plans showing what lands had been sold or jjre cmpted in that neighbourhood. 
 
 Q. In the neighbourhood of where coal had been discovered? A. Coal had been 
 discovered in Douglas District, what is called the E. & N. Extension. 
 
 Q. What did you do at that time? A. And to find out what land had been con- 
 veyed by the Company, and what sales had been mide which were uncompleted. I pro- 
 duced the plans and gave him the information he required 
 
 Q. That is the application, and this writing — that is Exhibits " H" and " C" came 
 under Mr. Dunsmuir's notice then? A. No, they may not ha\e. 
 
 Q. Hut you gave him the information? A. 1 gave him the information from the 
 plans; I gave him the plans and I turned up the Sales Hook Although I previously 
 knew that this sale of Mr. Hobbs had not been completed, that his instalments were 
 behind. 
 
 Q. Would you just turn up to where the entry is in re Hobbs application in that 
 book called the Sales Book? ( Witness does so.) You find it at page 95? A. Page 95. 
 
 Q Read the printed matter as well us the writing A Bright District; Num- 
 ber of lot. Lot 6; date of purchase, 28th November, 1889; name, Frank Vickcr Hobbs; 
 how acquired, purcha-^ed; acre.ige 160 acres; price, $3.00 per acre; terms of payment and 
 dates when due, 1st payment, d.Vte when paid, 28th November, 1889; certificate of pay- 
 ment number, none; amount pai'!, $120; remarks, balance^ 
 
 Q. There is the total. A Total, there is no total. That is the balance -the total 
 would be extended in ink when the purchase was closed; that is simply the balance. The 
 conveyance of title, number and date, none; remarks, balance in three yearly jjayments of 
 $120, interest at 6 i)er cent. ^o 
 
 Q. That was what was entered there? A. Yes. 
 
 O. Is that in your hand writing? A. It is. 
 
 O. When was it entered? A. Probably the next day or within a day or two after 
 the receipt was given by Mr. Trutch, 
 
 O. That would be within a day or two of the 28th of November, 1889? A. Yes. 
 
 y. Looking at that .same page, 95, what do you fiid has been done; something has 
 been done with part of that writing that you have been reading? A. There is a note in 
 nil ink — memorandum in red, "transferred to Douglas District, folio 87." 
 
 Q. Do you remember when you wrote that in? A, I do not. 
 
 Can you sa>- when? A. When my attention was called to the fact that this land 
 was . , ■ . .ily in Bright District, but in Douglas Di-trict. 
 
 Q. Looking at your entry here, you can acknowledge it, simply looking at the pre- 
 vious entry, I think you told me before? A. It must have been after the end of 1891. 
 
 Q. It was somewhere after the end of 1891? A. I cannot say what date. 
 
 40 
 
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 28tl 
 acre 
 
 ferr 
 whe 
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 enti 
 paic 
 fee. 
 nun 
 
 Disi 
 
 bee; 
 sam 
 beer 
 ;n V 
 
 I);st 
 
 189, 
 
 tlios 
 
 two 
 
 Mool 
 
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 Q- 
 o. 
 
 Q 
 
 127 
 
 It had to be anterior to 1894 anyway? A 
 
 The next entry is 1894? A. Yes. 
 
 It had to be between 1891 and 1894? A. 
 
 Yes. 
 
 .:o 
 
 Hetween the end of 1891 and 1894. 
 
 Now I ask you to read the printed matter on the toj) here the same way. Headed 
 what? A. Douglas and Dunsmuir District. Dinsmuir is in writing, because on this 
 page is an entry of one Lot sold in Dunsmuir District, and there is no place in this book 
 with a printed heading of Dunsmuir District. Number of Lot, Lot 6; date of purchase 
 28th November, 1889; name, Frank Vicker Hobbs; how acquired; purchase; n.creage 160 '" 
 acres, price per acre, $3.00. 
 
 The Court: Q. That is the Douglas District? A. Lot 6, Douglas District, trans- 
 ferred from the previous folio. Terms of paymeit and dates when due, ist payment, date 
 when paid, 28th November, 1889 certificate of purchase. No none; amount paid $120. 
 I'he total comes below; I will read that when I come to it Total, none. The second 
 entry; balance, date when paid 29th April, 1896; certificate of payment No. 864; amount 
 paid, $360, 6 year's interest; the same date and same certificate of purchase. $126.60; title 
 fee, same date and same certificate of payment, .$10; total $619.60; conveyance of title, 
 number and date, number 302, date 1st May, 1896 
 
 Mr. McPhillips: Q. And under " Remarks " there is — balance in three yearly pay 
 mcnts of $ 1 20, and interest at 6 per cent? A. Which was transferred from the other folio. 
 
 O. That was made when you discovered that the property was really in Douglas 
 District? A. That entry is, yes. 
 
 Q. And you wrote it there, as you have it. Lot 6, Douglas District? A. I did, 
 because that was the ne.xt vacant lot number. It was curious that it happened to be the 
 same number that it ha! in Bright District; that is merely a coincidence; it might have 3" 
 been 9 or 10; it just happened to be the same number in Douglas District that it had been 
 :n Bright District. 
 
 Q, The conveyance that has been executed by the Company, is of Lot 6, Douglas 
 District, is it not? A. It is. 
 
 Q. And consistent with this entry here, page 87? A. Yes. 
 
 Q. And you say this entry must have been after 1891, and' certainly long before 
 1S94? A. I do not say necessarily long before that; it must have been between those 
 those two dates. ^o 
 
 Q. Between tlie end of 1 89 1 and the early part of 1894? A. 
 two dates. 
 
 Yes, between those 
 
 Q. Are there any other entries relative to the Plaintiffs purchase in this Land Sales 
 Hunk? A. None. 
 
 Q. We have referred to all? A. We have. Except in the index, \ou will find 
 I'i- name in the index. 
 
laS 
 
 Q. Now this application and tliis receipt— this agreement of the 28th of November, 
 1889, there. Exhibits " B" and " C," they were always, I understand it, in the office of 
 the Defendant Company? A. No, a copy of that receipt was. 
 
 Q. Yes, a copy of that receipt was. That is the application, the Exhibit " 15," and 
 a copy of Exhibit " C," remained in the office of the Defendant Company? .\ They 
 did. 
 
 Q. From the time Mr. Hobbs first took away his original? A. They did. 
 
 Q. I think you knew where they always were? A. Yes. ,o 
 
 Q. And they were of the records of the Defendant Company? A. They were. 
 
 Q. And when you saw Mr Dunsmuir you were thoroughly conversant with the 
 fact, I suppose, attendant on this jnirchase? A. Which interview? 
 
 Q. That first interview which you had with him— no, that interview when the coal 
 liad been found? A. Not the first interview. 
 
 Q. Well, when the coal had been found you were then prepared to go over all tie 
 matter with Mr. Dunsmuir. were you not? Did not Mr. Dunsmuir send for you, as you 
 say? A. He did. 20 
 
 Q. And he wanted to go into the whole question? A. He wanted me to show the 
 map and show what properties — 
 
 Q. Did you show him the plans? A. Yes. 
 
 Q. Which plans? A. Two plans, Oanbcrry District and Douglas District. 
 
 Q. Are they here? A. Yes. This is the plan, I think, that was looked at first, 
 and he wanted to see a plan which showed the land to the we.st. This is a copy of the 
 official plan of Cranberry District— Cranberry District Official Map, 1891. 
 
 Q. 
 
 to this. 
 
 That is Exhbit No. i? A. Yes. A great deal of additions have been made 
 
 30 
 
 Q. You brought them to Mr Dunsmuir? A. Yes; and he said he wanted to see a 
 plan to the west of this, that is of Douglas District, and I showed him this. 
 
 Q. Had it the Plaintiffs land described on it? A. This has not, 
 
 Q. , Was it then? A. It was then. 
 
 Q. And you found Lot 6 t ere? A. Not like this at the time I showed it; it was 
 puncil only. 
 
 Q And it has now been put in ink? A. 
 I idbbs' land to the south of this. 
 
 40 
 
 There was also here in pencil P. V. 
 
 Q. But this particular Lot 6, was that accredited to Mr. Hobbs at that time? A 
 ills name was on it, too, in pencil. 
 
 O. That is, Mr. Hobbs' name was on Lot 6 as now conveyed to him? A The 
 typographical was not on, it was ju.st simply put in in a square. 
 
 y. Where it now is? A. Where it now is, in that position. 
 
139 
 
 Q. Mr. Diinsmuir was not in :\ny doubt as to where Mr. Hobbs' land was at that 
 t'me? A. Oh no, I showed him that that land was the land which had stfKid in Mr 
 Hobbs' name. 
 
 Q. Yes, Lot 6. Now Mr. Solly, )ou told m)' learned friend that if this « iw car- • 
 ried out — the sur\'ey of Mr. Hobbs' land was carried out in accordance with ymir as>um|> 
 tion of what the writing of the 28th of November meant, that it would come on this Plan 
 " Z," where the blue lines arc done? A. I stated that if this point of Stark's Crown 
 Grant was taken as the starting point it would come here ( indicatinjj). 
 
 Q. Yes; sui>pose. if on the other hand, the a.ssuinption was that the st:rting point 
 might he, say a little northwest, you could then define this Lot 6 as it is defined here, with 
 the southern boundary parallel with the north boundary of .Stark's Crown Grant? Would 
 not that be fact? A. If it stated northwest. 
 
 Q. If the direct on w.i- a little north of west? A. It would throw it up a little 
 north of west, if you assumed that as the starting point. 
 
 Q. Yes as a matter of fact, as the survey is now made the southern boundary of the 
 land of the FlaintifT, that is. Lot 6 is upon a line drawn due west from across the northern 
 boundary of Stark's Crown Grant? A. It is. 20 
 
 Q. The fact of the matter is that instead of being drawn south it is drawn north? 
 A Entirelv north. 
 
 Q. And that is the only variation there is about it. A. Oh yes, it is not so far 
 
 iff. 
 
 Q Hut even Mr. Trutch >ou know put him closer at the first. A You asked me 
 if that is correct 1 i>- with that supposition, and 1 say, no it is not. 
 
 Q. It is a little nearer undoubtedly? It is a little nearer. Now as a matter of fact 30 
 when you saw Mr Dunsmuir at that time who the coal hail been discovered, the Com- 
 pany were aware where Mr. Hobbs' cabin had been erected? The Company had become 
 aware? A. Not at that time. 
 
 Q. I thought they had? A. They might have, 1 don't know; 1 was notconversant 
 u ith it then, at m\ first interview with Mr Dunsmuir. 
 
 y. No 1 mean that interview in 1895, when ) ou found the coal — when Mr. Duns- 
 muir wasawa'-e that there was coal there, he asked for you did he not? A. Yes. 
 
 Q. And >ou went into the matter? A. I did. ^'^ 
 
 y. Didn't you tell nie this — 1 am now referring to page 65 of your examination 
 iN'idence. line iS: "Did you know that he had gone on his land at all after he had made 
 the purcha.se? A I cannot sa\- that I did. The jXJsition of that cabin was only estab- 
 l.shed from some sur\eys that were made up there by Mr. I'inder in connection with the 
 Coal discoveries " A. That is true. 
 
 Q " ^Vhcn would that be about? (A,) That must have been, I think, in the sum- 
 mer of 1895." Therefore, Mr. Dunsmuir became aware, ilid he not, that there was coal 
 
up 
 thit 
 
 par 
 
 A. 
 
 lish 
 staj 
 of 1 
 as I 
 li.ul 
 |ila 
 
 cab 
 Ye; 
 can 
 
 hav 
 ami 
 hut 
 
 in I 
 uh; 
 
 A. 
 
 I'oc 
 
 Vic 
 No. 
 
130 
 
 lip there— definitely aware, from these surveys of Mr. Hinder, did he imt? A. I don't 
 thinl< so; I thini< the 'al was discovered by somebody else, 
 
 y. Hut after the coal was discovered, now, as a matter of fact, Mr. Solly, the Com- 
 pany took some steps to get the property defined around there? A. I believe so. 
 
 y. Yes they did. As a matter of fact, Mr, I'inder was the gentlcnian who did it? 
 A. He was, 
 
 Q. And when he was doii){,' that work the Plaintiffs cabin was definitely estah 
 lishcd? A. I don't think the position of it was established then. Mr. I'inder, ! think, ,,, 
 •stayed in the cabin Hut I think the lir es that he ran that finally established the position 
 of Mr. Hobbs' cabin had not been run at that time. He stayed in a hut which was know n 
 .IS Hobbs' cabin, he and his survey party, ! understood from him, but I do not think he 
 li.id ascertained the exact position of Mr. Hobbs' cabin, so that I could place it on this 
 plan or any plan until some time after that. 
 
 Q. He came across a cabin? A. He came across a cabin, which he stayed in. 
 
 y. I see you carry out cabin on all these plans? A. I got the iwsition of that 
 cabin from Mr. Pinder. 
 
 Yes. 
 
 Q. For instance, on this one you have Lot 6 and then you have " cabin "? A. 
 
 20 
 
 y. And on that one there you have Lot 6 and "cabin" on this one also? A. I 
 I annot say on what date Mr. Pinder established the exact position of that cabin. 
 
 y. It would be in 1895? A. Ifhc had made his surveys in 1895 I presume it 
 would be 1895. 
 
 y. You say in your examination that must have been in the summer of 1895; you 
 have no reason to ilepart from that now? That is the way you recollected it on your ex- 
 amination? A. I am not sure about that; in all probability it was the summer of 1895, ^° 
 l)ut I am not positive of the fact. 
 
 The Court: Q. You say, Mr. Solly, that some little time after coal wai! discovered 
 in Douglas District Mr Dunsinuir told you to report what land had been conveyed, and 
 u hat sales remained uncompleted. When was this discovery of coal in Douglas District? 
 A. I cannot say. 
 
 Witness stands aside. 
 
 40 
 
 JAMES DUNSMUIR, being duly sworn, testified. Examined in Chief by Mr. 
 I'ooley: 
 
 y. Your name Mr Dunsmuir? A. James Dunsmuir. 
 
 y. What is your position in connection with the E. & N. Railway Company? .\. 
 \ice-pre-iident. 
 
 y Have you been vice-president of the Company since its commencement? A. 
 
act 
 
 Col 
 
 ria 
 
 he 
 
 mui 
 
 Ye* 
 
 (Oil 
 
 not 
 
 uh; 
 
 (oal 
 
 this 
 
131 
 
 Q. When were you appointed Vice President, do you know? A. I couldn't ex- 
 actly say the date. 
 
 Q. You were Vice President in 1889, were you not? A. The books would show it. 
 
 Q. Were you one of the Directors of the Company? A. I was. 
 
 Q. Have you been so since its commenc .Tient? A. Yes. 
 
 Q. Do you know the instructions that were given with reference to th ; sale of the 
 Company's lands? A. Yes. 
 
 Q. What were they? ^° 
 
 Mr. McPhillips: 1 make the objection again, unless it can be connected with the 
 Plaintiff in some way. 
 
 The Witness: I gave the i.structions to the Land Commissioner, Mr Trutch, that 
 he was to sell the land and reserve all minerals. 
 
 Q. And reserve all minerals? A. Yes. 
 
 O. Have any minerals ever beer sold? .\. Yes. 
 
 O. By your Com miss 'oners? A. No, not by the Commissioners. 20 
 
 Q. Have minerals ever be<;n sold by the Company — coal? A. Yes, coal. 
 
 Q. Coal has been sold by the Company Do you know when that was. Mr. Duns- 
 muir? A. By resolution passed bj- — at a General Meeting of the Railway 
 
 The Court: Q. Passed by who? A. At a G^-neral Meeting of the Railway. 
 
 Mr. Pooler: O. You mean 1 suppose, of the shareholders of the Company? A 
 \';"s the shareholders. 
 
 The Court: Q. Coal land has been sold? A, Coal land has been .sold— not the 
 (oiil land — coal. We did nn sell the land. Th. mineral was taken up in that case, but "'^ 
 not the land. 
 
 Q. You mean coal rights? A. Coal rights, yes. 
 
 Mr. Pooley: Q. When was the K. & N. Railway Company fornu'd, do you know, 
 \\hat year, Mr. Dunsmuir? A. 1883, I think. 
 
 O. What interest have Dunsmuir's in the Railway Company? A. One half 
 
 O. Prior to the passage of the Railwaj- Hill — called the Railway Bill— had you any 
 ">al interests in the province? A. Yes. 4" 
 
 O. Had you any coal lands? .\ Coal lands, yes, 
 
 Q. Were you carr>ing on the business then of coal miners? A. Yes 
 
 O. .And were carrying on Collieries. Had the fact of your carrying on collieries in 
 I'lis Province anything to do with taking up the Island RaiK.ay? A. That is the reason 
 I \' father took it up. 
 
 O. That is the reason he took it up. 
 
coal 
 
 >'0U 
 
 E. & 
 way 
 
 acre. 
 
 the c 
 
 were 
 that 
 
 becai 
 couk 
 forbi 
 anyo 
 
 yardi 
 
 dant 
 Yes. 
 
 ■'true 
 
 the r 
 
 poste 
 
132 
 
 The Court: 
 coal interests. 
 
 It was to further his interest in the coal mines. A. To protect his 
 
 Mr. Pooley: To protect his own collieries. And except in the one instance that 
 >-ou have mentioned, Mr. Dunsmuir, no coal lands have ever been sold? A Never, no. 
 
 Q. And who were they sold to? A. To my father. 
 
 Q. The only coal lands sold by the E. & N. Railway Company were sold by the 
 E. & N. Railway Company to whom? A. Tt. my father. Sold by the E. & N. Rail- 
 way Company by resolution passed by the Hoard, j^^ 
 
 Q. What price was paid for that land by your father? A. One hundred dollars an 
 acre. 
 
 Q. Your father paid for it $ioo an acre, and that wis not for the surface, but for 
 the coal right? A. That was for the coal right. 
 
 Q. Mr. Hobbs stated yesterday in his evidence that he went to the slope which you 
 were working near his land in January last and went down the slope 150 yanis about, is 
 that so? A. No, 1 think it was only 50 yards down about, at that time. 
 
 Q. Only 50 yards down at that time? .\. Yes, he could not have gone very far 20 
 because he had a piece of paper to go down to the mine where they mined, so that he 
 could not go very far; he only had a piece of paper, he did not have a lamp. He was 
 forbidden to go down; that was through instructions to the men in charge not to allow 
 anyone to go dov/n. 
 
 Q. Hut yo i sa\- at that time the slope was only about 50 yards? .\. About 50 
 y.irds He might have meant 150 feet. He said 150 yards. 
 
 Ckoss-Examinei) by Mk. McPiiillii'S: 
 
 
 You arc now the Vice- ['resident of the E. & N. Railway Company? A. 1 am. 30 
 
 In November, i88y, what was jour position? A. 1889, Vice- ('resident 
 
 Well, now, in November, 1889, the office of Land Commissioner for the Defen- 
 dant Company, the E. & N. Railway Company, was filled by Mr, John Trutch. A. 
 \cs. 
 
 y Who was called here as a witness? A. Yes. 
 
 y. Now, you have told iu> learned friend that your insiructions, and 1 think the in- 
 •-tructions were given by you — A. Given by me to Mr. Trutch. 
 
 Q. You say >our instructions were to him that he was only to sell the surface, not 
 the minerals? A Not the minerals; sell the land, but not the minerals. 
 
 y. Sell the land, but not the minerals? A Yes. 
 
 (J. Mut these instructions were verbal, were the\- not? A, Verbal, yes. 
 
 y. And you did not have those instructions formulated in ,'iny wa>- and printed and 
 posted up in the office, or anything of that kind? A. Not necessary; no. 
 
 y. You did not deem it necessary? A. No, 
 
 ¥ 
 
133 
 
 Q. Neither did you have your soh'citor prepare any form of agreement of sale which 
 would be given the purchasers as they came and enquired and got land? A. No, not at 
 all. That was all done by the Land Commissioner. 
 
 Q. You relied on the Land Commissioner? A. Yes. 
 
 Q. That is, you relied on the Land Commissioner? A. On the Land Commis- 
 sioner, yes. 
 
 Q. You had no settled form of agreement for sale, and did not provide the Land 
 Commissioner with one? A. No, the Land Commissioner had his instructions to sell the jo 
 land, or the surface right and not the minerals. 
 
 Q. Yes; and then again there was no form of agreement for sale settled, that he 
 was to use for the Company? A. No, it was not necessary to have a form because he 
 was instructed to .sell the land. 
 
 The Court: You know, Mr. Dunsmuir, that is really the point we are trying to 
 decide in this case whether it was necessary or not. Of course that is your opinion, but 
 that is what we are trying to find out in this case. 
 
 Mr. McPhillips: Q. There was not as a fact an>- -egular form of agreement for sale 20 
 to be given to purchasers when they applied for land? A. No, we did not think it neces- 
 sary to do so. 
 
 Q. In fact you left that whole matter witii the Land Commissioner? A. Yes. 
 y As to the form? A. As to the form. 
 
 Q. Because >'ou have already stated what you instructed him; but you left him to 
 spttlc any form or any receipt? A No, not any form; we left him to give a receipt, but 
 only if he paid the full amount of his land, then he received our deed. 
 
 Q. Yes, you gave a deed? A. We ga\e a deed, not drawn up by the Land Com 30 
 inissioner, but drawn up by our solicitor. 
 
 Q. Yes, I am not quite that far on yet. Then. 1 understand you, the Land Com- 
 ini.ssioner was to deal with the purclinsers; but you say his instructions were verbal? A 
 Vcs. 
 
 Q. Only to sell the surface of the lands and not the minerals? A. And not t|ie 
 minerals. 
 
 Q. And you rely on the Land Commissioner, that is Mr John Trutch, in this case, 
 notif\ing each purchaser of those ttrms? A Yes. 
 
 (J. \nu did not pul)lish any advertisemt it, say in the press of the time, that is, of 
 thi' 2<Sth of November. 1889, .say and round ahi-ut that time, of any limitation op the 
 pnwci of your I and Commissioner? A. No; we did not think that necessary. 
 
 n. \'«u did not think that necessarj? A. As everybody knew that. 
 
 O. \'ou a.ssumed Mr. Dunsmuir. that people did know that? A Yes. 
 
 y. I think you heard read here, did you not, an advertisement which did appear in 
 
 40 
 
 l.'S 
 
 -, 1 think it was, over the signature of your father, Robert Dunsmuir? A, Ve.s. 
 
134 
 
 And the same gentleman, Mr. Tnitch, dealing with lands that were sold uw'i'r the 
 Land Act? A. Yes 
 
 Q. That notice was signed, Robert Dunsmuir, President and John Truch, Land 
 Commissioner, was it not? A. Yes. 
 
 Q. That is the only advertisement you remember of where there was any public 
 notice given of dealings with lands, is it? A. 1 think so; 1 think that is the onlv one. 
 
 Q. That is the same Mr. Jo!in Trutch then who was exercising hi- office on the 
 j8th of November, 1889, who was pulilished as being the Land Commissioner at that ,0 
 time, that was the same man? A. The same man, yes. 
 
 Q. Same man as the John Trutch whose name appeared in that advertisement in 
 1887? A. Yes. 
 
 O. Now, I think, Mr. Dunsmuir, that the 1'-. & N. Railway Company differs from 
 some other Railway Companies in that it lias two departments, a Railway Department and a 
 Land Dej)artment? The E. & N. Railway Companj- have a large land grant, have they 
 not? A. Yes, they have a large land grant 
 
 Q. .And the)' had that from the .start or inception of things frou! the time of incor- ,0 
 ]i(iration? A Well, in a way it is all in one, we call it the E. & N. Railway Depart- 
 ment, but it is all one Company. 
 
 Q. '"'li ycc certainlv , but as a matter of fact when the E. & N Railway Com- 
 pany as a Companv unilertnok to build the Railwa\', one part, of the consideration was a 
 land grant, was it not? A. Yes, a grant of land containing nil the minerals. 
 
 O. N'cs, there is no contest about that And yon e\ entually by letters patent of 
 the 21st of April, 1887, you did get letters patent from the Dominion Government — the 
 F,. & N. Railway Comiiany did get letters patent from the Dominion Government grant- 
 ing the lands set forth in the Statute, did they not? A. Yes. •^ 
 
 Q. And those letters patent speak for themselves, but as a matter of fact speaking 
 i;i nerally you got everjthing that was in the land, at least you got the whole title, in fact 
 'II llMM||||it at one time you thought ynu had the gold and silver, did you not? A. 
 N es, add think so jet. 
 
 (J. However, the I*ri\\- Council have determined that that remained in the Crown. 
 Al any rate you have the coal, there is no (|uestion about that? A We have everything, 
 
 yi-s. 
 
 y. And it was 111 1889, in November, as it is to-day, uithiii your power to sell '^^ 
 1 ir)'thing other than gold and siKei? Is that not a fact, if you so choose? .\. Within 
 u liose power? 
 
 Q. It would lie within the jjower of the Company to .sell? A. 
 >ucr of the Company. 
 
 Yes, within the 
 
 (J. \'es, to sell if they so chose. Now \ou say there was as a matter of fact, 
 thougli it is the same institutio'i of course — there is a railway department and there is a 
 i:id department? A. \'es 
 
was 
 
 you 
 
 this 
 siitr 
 A. 
 
 Willi 
 
 was 
 do 
 
 refei 
 
 Salt 
 Con 
 
 ilicii 
 
 as a 
 
 kllfV 
 
 I itir 
 
135 
 
 Q. And the administrator of the Land Department on the 28th of November, 1889. 
 was Mr. John Trutch? A. Mr. John Trutch. 
 
 Q. And styled Land Commissioner? A. Yes. 
 
 y. He was held out as Land Commissioner; I mean he was on the letter paper, and 
 \ou have an imprint? A. Yes, he was Land Commissioner. 
 
 y. Yes, undoubtedly, he was Land t!ommissioner. Now in all your dealinf^s with 
 this application of the Plaintiff— because it came eventually before your notice- you as- 
 sumed throughout, Mr. Dunsmuir, that only the surface had been sold. Is not that a fact? iq 
 A. Yes, that is a fact. It only sold the surface. That is we term it land in our office, 
 we do not say surface ri^dits, we say land. 
 
 Q. Land, but minus the minerals? A. Yes, minus the minerals. 
 
 y. And even to-day notwithstanding this agreement of the 28th of November, 1889, 
 which is Exhibit " C." you contend still, do you not, that only the land, not the minerals 
 was sold? A. Only the land, not the minerals. 
 
 y. Yes, this purchase of Mr I lobbs' the Plaint ff came under vour notice. When 
 do you think first? A. I think it was when we discovered coal out*here? 
 
 O. That would be when? A. 1895, in August 
 
 The Court: y Mr- Hobbs first came under your notice when? A. In 1895 when 
 we discovered coal. 
 
 Mr. McPhillips: y. When Mr. Solly was in the bo.v I referred him to page 87. or he 
 referred to page 87; called Dunsmuir and Douglas District, headed, and this is the Land 
 .Sales Hook, and is one of the books of the Company? A. One of the books of the 
 Company. 
 
 20 
 
 
 And in the office of the Company? A. And in the office of the C 
 
 ompan\-, 
 
 3" 
 
 them. 
 
 That was in the Land Commissioner's Department, of course? A. Yes. 
 
 You don't remember looking at that yourself? A. No, I don't think so. 
 
 Was it the practice of the Hoard of Directors to have that book brought before 
 A N o. 
 
 y. .At .-.n)- time? A. No. 
 y Never was? A. No. 
 
 y. Ihat was a part of the L\n<i Commissioners department business. You knew "*° 
 .s a matter of fact, Mr. Dunsmuir, as all the other Directors knew it did, naturally you 
 Rw that a certain amount of land sales had been made? A. Yes. we had a report.' 
 
 0. You had a report, but you don't remember whether those reports were in detail indi- 
 iting the names and the amount of — A. No. they were not. 
 
 y. ( >r the e.\tent? A. Just the total sums. 
 
 y. Or the extent of the interests conveyed? A. Just the number of acres 
 I'lnveyed. 
 
lO 
 
 136 
 
 Q. V'ou merely had reported to j ou the number of acres sold, and the purchase 
 money? A Ves. 
 
 y And the amount of money received? A Yes 
 
 Q. But did you have that naturally? A. We had that, yes. 
 
 Q. Now, when you found that there was coal upon the land of the Plamtiff, or 
 wiiat he claims to be his land, did you ^'o into the matter of Mr. Hobbs' purchase particu 
 larly? A. Xo. not particularly; when we found the coal I w.mtcd to see who had taken 
 land up out there in that locality. So 1 told Mr. Solly to bring the plan in to see. 
 
 (J. Ves, and Mr. Solly then did do that and went into the matter with you? A 
 \\ ent into the matter. 
 
 Q. And then it came to your notice that the Plaintiff claimed this Lot 6 in Douglas 
 District? A. No, not then. 
 
 Q. Not then. A. No. 
 
 y. Would not his purcha.se be— A. I wanted to sec for my own mformation, 
 >ou see, where this coal was on the plan. 
 
 Q. Oh, I see, you wanted to see for your own information first? A I knew we '" 
 Had the coal, you see. and I wanted to see who had land there, 
 
 (J. I sec; and what did you find, Mr Dunsmuir? A. I don't think 1 remember 
 anything atxiut Mr. Hobbs at that time. 
 
 y. Vou don't remember anything about .Mr. Hobbs? A. No, not at first when I 
 called for the plans. 
 
 The Coirt: O. Whnt, do 1 understand you? When you discovered coal you 
 looked into the question of who had recorded land there? A. Yes. 
 
 y You don't recollect meeting Mr. Hobbs' name. You say you enquired yourself; ^^ 
 what do ) ou mean by enquiring? A I wanted to find out from the plan who had taken 
 land up in the locality that we had found coal in . 
 
 y. .\nd you went to > our books for that purpose? A. .\o, I asked Mr. Solly for 
 the plan; I could take it from the plans. 
 
 Mr. McPhillips: y. Do you remember what plan it was? A. I think it was that 
 plan 'indicating!. 
 
 0. That is F.;.h;bit No. 1? A That is, 1 knew the plan and I knew that coal was 
 around in this loc\lity, <omewherL, do > ou see ■♦*' 
 
 O West of Stark's property? A. 1 knew it was near Stark's property, or Stark s 
 
 Lake. 
 
 y. I sec on this plan, l^xhibit No. 1. there is a pencil mark, Lot 6, Douglas District, 
 -nth the name of F. V Hobbs on it and a cabin? A. 1 don't think that was marked 
 tiicre at that time, I don't think it was. I don't remember. 
 
 y. Who did you find had i)rnpcrt>' there? A. I found the paity whose name was 
 "11 the pl,an. 
 

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'37 
 
 Q. And the plan you consulted was Kxliibit No i? A. Yes, that was the one, I 
 think; this was one and there is another one yet. 
 
 Q. Was it this one, Mr. Dunsmuir? A. No. This was the one here (the same 
 one). 
 
 Q. Dealing with that one, that wouhl not show it unless it had the pencil sketch 
 on it Do you think that was there at the time? A. I could not .sa>-; 1 forget about that. 
 Mat I knew these names here; I knew what land had been taken up 
 
 Q. Hut it is quite likely that Mr. Hobbs' was sketched on there in pencil and this ,j, 
 man J. Sharon, and so on? A. Thty might have been there; I never thought about 
 
 Q. At any rate your idea was to find out who the people were? A. Who the 
 people were. 
 
 y. That had land in that vicinity? A. Yes. 
 
 Q. And then you fouiul out eventually that Mr. Hobbs had? A. Yes. 
 
 y. At that time? A. Probably at that time, I could not .say. 1 did not take 
 much notice of tho surface rights at that time. 20 
 
 y. Hut of course you .still assumed that there would be ro question of coal with 
 those people? A. Of course 1 did. I knew they did not have the coal. As far as tlie 
 minerals are concerned, it did not bother me; 1 only wanted to see who had the land 
 there. 
 
 y You had got advice then that Hobbs claimed Lots 6? .\ Yes. 
 
 The fourt: y. The same as the rest hnd. You did not attach importance to Mr. 
 Hobbs name of record ;is you saiil he had onlj- surface rights the same as the others had? 
 A. The same as the others had certainly, that is correct. 
 
 Mr. Mcl'hillips: Q. When the Land Commissioner made the sales, such as the one 
 1.) the I'laintiff, the sale to the Plaintiff was a sale b\- the Company, not a preemption? 
 \ No, a sale by the Company; $3.00 an acre. 
 
 Q. As a matter of fact the i)reeniptors were entitled to land at $1 25, if they filed 
 imder the Act proper? A If it w.is taken up Within the limits, vcs. 
 
 30 
 
 (). 
 
 Hut this land was sold and the price was $3.CX) an acre? A. $3.00 an acre. 
 
 (J. Ihe purchasers were at perfect litierty to go into the possession of the land, were .q 
 they not, when it was agreed to be sold to them? A Yes. 
 
 O. And the Plaintiff was perfectly entitled to go upon the land on the 2cSth of 
 N(weniber, 1 S8g, after he had paid his $1 20.00 A. Yes. 
 
 y He did as a matter of fact go on the land and build a cabin? A. He went on 
 tlip land, )'es, 
 
 y. And built a cabin? A. I don't think that it was the land that he applied lor 
 • 1' curding to the recc;pt, or the application. 
 
wa 
 
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 ton 
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 SIX 
 
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138 
 
 Q. You think that the: land that he built his liousc on and the land that he actually 
 wanted wn^ not very accurately described in the receipt? A. No. 
 
 (^. Now when did the matter first strike you -when did it first strike you that the 
 Plaintiff would claim the coal under the land? A. It never did strike me. 
 
 Q. It never did strike you? A. No. 
 
 The Court: Q. It struck you when he claimed it, didn't it? A. It struck nie 
 when he claimed it, yes. I did not sec how he could claim it. 
 
 Mr. McThillips: Q. When did it first make an impression on your mind? When lo 
 did it first come to your itice? A. W hen it first came to my notice, well, I forget that 
 jiart of it; I could not say when it first came to my notice 
 
 Q. Well, there was one time, Mr. Duiismuir, when your contention was thut the 
 ajjreement of sale had lapseti, was there not? A. Yes. 
 
 O. That was your first objection, anyhow? A. Yes; when Mr. Solly came in to 
 mc and told me that Mr. Hobbs wanted to purchase the land that he applied for, I told 
 .Mr. Solly that we would cancel it; that he had not made his |iayments in accordance 
 with the agreement. 
 
 Q. When >va< that Mr. Duns Tuir? A. That was after we had — 
 
 O. Discovered- the coal? A Discoveretl the coal. 
 
 O. That would be in 1895? A. 189;, yes. 
 
 Q. I think that was in the spring; but do you remember whether it was spring, 
 summer or fall? A. No, I think it was in August. 
 
 Q. You think it was in August? A. Yes. 
 
 Q. In August, 1895, your first position taken was that the ngrecment had lapsed by ^" 
 default in making payments? A. The agreement had lapsed. 
 
 Q. That he had forfeited it. is that it? Mr. Solly 3r.ys that? A. Yes, but then 
 there are lots of ways of looking at it. 
 
 Q. He says, anyhow, that he came out and had in.slr-.ctii iis to tcU Mr. Ilobbs? .A 
 He had taken that land up and he h; ' been notified to make up the payments; he never 
 took any notice whatever of the notifications Therefore we thought that he had given up 
 the land. When he heard that we had found, or that there had been coal struck or found 
 out there, then he comes to make a claim on the land. '^^ 
 
 Q. Well, we have had his statement, you know, that he thought he was only pay.-. 
 si.\ per cent, interest to you and his money was worth more than that to him? A. Well, 
 1 told Mr, Solly, no, we « ill cancel it, as he has never made his payments 
 
 Q. You cancelled the agreement? A. I cancelled the agreement. After thinking 
 it over I did not want to take advantage of him, I told Mr. Solly that we would pay the 
 $ 1 20 back. He was not satisfied with that. So then I told Mr. Solly — I said let him have it, 
 Mr. Solly, because he has only got the surface rights, and anything we want to have, the 
 
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'39 
 
 use of the land to go on there and prospect for coal, we have the ri^'ht to do that under 
 our deed — the deed that we issue. 
 
 Q. And th.it i.s the whole thin^? A. That is the whole thinj;. 
 
 Q At that time, Mr. Dunsmuir, you knew the contents of this receipt, as you call 
 it of the 28th of November, 1889? A. This receipt, of course. 
 
 Q. I mean to say you knew it. Because this writing,' of the 28th of November, 
 1S89, which we call the agreement which is Exhibit " C?" A. Yes. 
 
 Q. That is the onl>' writing that we know of that sets forth when the payments are i<J 
 to be made? A. Yes. 
 
 y. For instance it says the 1st payment is $120; and that is paid? A. Yes. 
 
 Q. It says the balance of the purchase money to be paid in thrc.' e<iual instalments? 
 A. Yes, Ijearing interest. 
 
 Q. The instalments bearing interest at the rate of 6 per cent? A. He never paid 
 his interest, and never paid any of the instalments. 
 
 y. Yes, that'is quite true, you then knew the agreement of the Land Commissioner 
 uith the Piaintiflf, you knew the termy? A. No, I ne\ er saw that receipt. ^" 
 
 Q. You never saw that receipt? A. No. 
 
 There was a copy in the office? A. Yes. 
 
 H^w did you know the terms of pajment? A, I knew that all the time. 
 How did you become aware of that? A. That w as the terms of payment that 
 we had with all people that had taken up land, settlers taking up land, those were tlic 
 general terms of payment 
 
 Q. Those were the general terms of payment? A. ihosc were the general terms -o 
 of payments. 
 
 Q. How would you become aware of the nature of the contract with the Plaintiff 
 ■md the exact dates of payment? Hccausc jou .sec it ^a\s in ocpial instalments at tl t-.x- 
 liiration of one, two and three years, and as it happened, the Plaintiff came into your .rfice 
 on the 28th of November 1889? A. Yes. 
 
 Q. Of course, another purchaser might come along next day. and so on, and the 
 'lays of payment would lie different? A- The days different? No. 
 
 Q. The dates would be different? A The dates would be different, but not the •*" 
 dates that would be one, two and three \ ears. Fherc wouki be so much paid down, and 
 the balance in one, two and three years. I know that the Land Commissioner kncu that. 
 
 Q. And Ixjforc you could say a person had been in default of his agreement, you 
 »ould have to know the terms of it? A. K;iow the terms. 
 
 Q. Wouldn't they have to? Wouldn't >ou have to know the terms of an agreement 
 hcfore you could say a man was in default? A. Mr. Solly came into the office a:i<! told 
 me the terms of agreement, of course. Hut I ne\ er saw that particular agreement. 
 
 Q 
 Q 
 
20 
 
 140 
 
 Q. You relied nn Mr. Solly to tell you the tirms of the at,'recriiont? A. I I<iicw 
 tlic terms of the aijreemunt; in every one those were the terms, so much dojvii and the 
 balance in so and so, I knew the terms. 
 
 CJ. As a matter of fact, you were contending that the Plaintiff lost his right to this 
 agreement because of default in making payments, was not that it? A. Yes, Mr. Solly 
 and I talked it over when he came in. 
 
 Q. And to bring your mind intelligently to the particular thing— to know when he 
 wa.- to make the jiayments? A. Vcs, Mr. Solly came in and told me that Mr. Hobbs 
 was in his room, had come to make the payment on his property; I told him no, we would '" 
 lancel it. that is when he went on Mr. Solly had said that the terms were 1, 2 and 3 
 years; we talked that over and knew exactly what it was. 
 
 Q. Did he tell you the date of the agreement? A. I don't know. 
 
 Q. One, two and three years, may be? A. I knew th.it he had taken it up m 
 November, 1889. 
 
 Q. You knew that he had takcti it up in November, 1889? .A. Yes, I knew he 
 had taken it up at that time. 
 
 Q. How did you happen to know that, Mr. Dunsmuir? A. Well, in looking over 
 it, and asking Mr. Solly, and consulting with the Land Commi.ssioner. 
 
 Q. Consulting with the Land Con...nssioner, you knew that? A. Yes 
 
 Q. I think, Mr. Dunsmuir, you have been the active director of the Comjjany, have 
 you not, all the time? A Yes, all the time 
 
 Q. The fact of the matter is— A. Everything comes before my notice, any mat- 
 ter, whether it is land, or \\ hatever it is 
 
 Q. As a matter of fact, then, there is not a quorum of Directors in the Province of 
 British Columbia? A. At times they are here. 
 
 Q. At times they are here. Hut sales of land have to go on from time to time? A. 
 .Sales of land, yes; becau.se that is an imderstood thing how we deal with lands. 
 
 Q. T. .n you gleaned your notion of the agreement lapsing from information from 
 •Mr. Solly? A. You see, I know all these things. They will come in to me and sa\- so 
 .ind so applied for such and such land in such and such district, can I let them have it? 
 And they bring a plan and I will say "yes" or I will say "no." That is the reason I »" 
 kiiow it. It all comes before my notice. 
 
 Q. It all comes before your notice. And that is, of course, that this deal with the 
 I'laintiff is no new matter to you; it was not a new matter, you were conversant with it? 
 A. Yes. „.., 
 
 Q. You never made a practice, Mr. Dunsmuir, in the administration of the lands of 
 the Company, to have .i surveyor in the field to check up the different locations made by 
 -<ttlers, or anything of that kind? A. No, never. 
 
 .V 
 
MI 
 
 Q. As ;i matter of fact, iis I imdt-rstarul it from my leantcd frioiul, and as the cvi 
 dunce shows here, >oii imi)osed on the purchasers the iliity of having the sur\c\s made? 
 A. Yes, they paid for the surve>'s. 
 
 Q. That is, you imposed the duty on tlic purclia»ier to ^et the land siir\ <)ed and 
 have that data returned to \our office? A. ^'cs 
 
 y. The Defendant Raihva\' ('ompin\' diil not propose to do that and that was a 
 duty they cast on the |)urchaser? A. Yes 
 
 Q. Of course, you had to accept it? A. We accepted a survey that was — ,o 
 
 Q. Of any surveyor of good standing? A Yes. 
 
 O. And Mr, I'riest was as a matter of fact the surveyor who m.idc the survey in 
 this case? A. In thir case. 
 
 y. And there was no objection to liirn? A No ohjcction. 
 
 Q. You did not then as 1 understand it make it a matter of aj^reement to l<now ex- 
 actly where the land was that the different apjilicants were in possession of until it came 
 to a I lestion of giving the deed, or in case of course it came in conH.ct with your opera 
 lions any way? A. 1 don't c|uitc understand you. 20 
 
 y. It is a little involved hut w!iat ! mean is — you did not make any en(|uir\' as to 
 u here the applicant had located his place, say, and prosecuting his agricultural pursuits 
 A. No, 
 
 Q. And it only came to your notice when it came a (jucstion of deeding the lands? 
 A. Or his making an application for it 
 
 y. Or in case your operations came in conflict with him in .iny way, like in this 
 < ase. you found coal in the neighbourhood and then \ou wanted to find out who were the- 
 A. Who were the locators of the land, the holders of the land. 30 
 
 Q Now speaking of the Plaintiff, it is not contended by the Defendant Company 
 that t te Plaintiff made any misrepresentation to the Railway Company about anything is 
 it? A. Misrepresentation. No. 
 
 The Court: There is no suggestion of anything of that kind 
 
 The Witness: Of course, probably, according to his application if the land was sur 
 vcyed where he applied for it it would not be the piece of land that he is on now. 
 
 Mr. McPhillips: y. We will have expert testimony on that. After Mr. Trutch .^o 
 eased ..o be Land Commissioner, Mr. Gore was the one who followed him. A. Yes. 
 
 Q. And then Mr. Solly? A. And then Mr Solly. 
 
 y. I believe you have made a change in the administration of your office as to 
 af^reements of sale or receipts given to applicants, ,. - jou not? A. Yes. 
 
 y. Yes, you have drawn to their attention now the deeds that will be given — will 
 lie according to the usual reservations contained in the Company's deeds? A. Yes, that 
 
 IS it 
 
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Q That was not in vogue at the time of this agreement for sale to the Plaintiflf>. 
 A. No, it was not. 
 
 Q. Ihen how Umj; a time has that l)ccn the |)ra(tici? Some ? or 4 years, I thini<? 
 A Oh, I ''ortfct now, I toiihl not say. I'rohably 2 or \ vxars, or 4 years. I could not 
 
 say. 
 
 (J. Ihat rcser\ .itions would be according to the deed the usual deed issued by the 
 Company? A. Thiit is the rcicipt tjiven? 
 
 Q. Ves Ihe receipt ({iven? A. Yes. ,,, 
 
 (J. As a matter of fact, th()u;,'h, still >ou have i\r< agreement settled b)' your solicitor 
 as to the sale of lands? A. No. we do that ourselves; it is not necessary to do that; that 
 is done privately in the office. 
 
 (J. That is part of the administration e*" tl'e I, ami lommissic/ner's l)ti)artmcnt? A. 
 \''-s. Mr. Ilobbs went to a lawyer; the lawyer saw ■' land .md then lie nailed it on a<: 
 iiiuntof the le(jal term. 
 
 Q. Vou don't think .Mr. Ilobbs was settiiij,' any trap for you? A. No, I don't 
 so, not at the time, because he did not know it, Imt when he took it to the lawyer, the law- ^g 
 yer sees " land," and then they nail it on the legal term " land. " 
 
 Q. Is that the defence yf)u rely on? A. No; because Mr Trutcii .lid not have 
 power to sell the minerals, he sold the land. 
 
 RkKx.aminki) hv Mk. Pooi.ev, 
 
 y. There was one (luestion Mr. Mcl'hillips asked you here, when it was you knew 
 that Mr. Hobbs c'aimed the coal? A. I don't know, it was after — 
 
 y Was it when he returned the deed? A 
 if the reservations? 
 
 Wiieii he returned tlic deed on account 30 
 
 y. Yes? A. No, it was txjfore that. 
 
 Q. You say before that h;.- liad claimed? A. It was before he rcturneil the deed — 
 no, it was before — he returned the deed after he knew that there was coal there— he re- 
 lumed the deed. 
 
 y. Oh, no, that was not the question; Mr. Mc Phillips asked you this question: 
 When was it you first knew that Mr. Hobbs claimed the coal? That Mr. Hobbs claimed 
 the coal, not that the coal was found there? A. I cannot say the date '^° 
 
 Q. Was that when the deed «as returned to you? A. When the deed was re- 
 turned to me? 
 
 y. Yes, the company issued him a deed? A Yes. 
 
 O. And the Plaintiff returned that deed on account of reservations in it? .A. Yes. 
 
 Q. Was that the time that you say he claimed the coal? A. I think it was before 
 
 that. 
 
143 
 Q. When was it? A. I could not say when it was — I loiild not say. 
 Q. That was not the first time? A. I could not say. 
 
 EXAMINEO BV THE COURT. 
 
 Q. Which way am I to take this Mr. Dunsniuir, was it hefore or after Mr. Hohhs 
 had returned the deed that he claimed the minerals? A. That I knew? 
 
 Q. Yes. Did you know anything of his claiming the minerals before he sent the 
 deed back to \ou on account of its having the reservations? A. 1 don't know whether j^ 
 I knew it before that or not; but I know he returned the deed. 
 
 Q. You see Messrs. Hunter & Duff wrote a letter— or Mr. Hobhs wrote a letter— 
 " 1 herewith return the deed " (reading letter.) Now was it before or after the receipt of 
 that letter that you were aware that Mr. Hobbs claimed the minerals? A. Well, I could 
 not say that. I forget about that. I could not say that, whether it was before or after 
 
 Q. It was not the Solicitors who wrote you that letter, it was Mr. Hobbs himself? 
 /^ I remember the deed being returned, but whether I knew that he knew it before that 
 I cannot saj-, I don't know. 
 
 Q. You said in answer to Mr. Poolcy that prior to the Ks(|iiim;ilt & Nanaimo Rail- 
 way Bill, the Dunsmuir's had coal lands and carried on collieries? A. Yes. 
 
 Q. That was at Nanaimo? A. And Wellington, yes 
 
 Q. And Wellington. Well, who did they belong to then? Who conducted them? 
 A. They belonged to my father. 
 
 0. And the bill wa passed in tSSj? A. V^es. 
 
 O. How long had he been carrying on those collieries? A. How long before that? 
 Q. Yes. before that? A. It was— he first commenced in October, 1869. 3" 
 
 Q. Since 1869; and were these collieries extensive at the time the E. & N. Railway 
 Hill was passed? A. Oh, yes, extensive, then, by th:it time. 
 
 y. Now, you told Mr. I'oolej- the reason for taking up the K. & N. Railway Com- 
 pany by your father was to protect his ov -.)llieries? A. Yes. 
 
 Q. How? A. Because he would have all this coal land, you might say, as well he 
 would have the monopoly of the coal; that was the reason; that is what he wantetl. 
 Q. There was a large land grant with the railway project? A. Yes 
 
 Q. Was to get coal lands and so have a monopoly of the business? A Yes, so as 
 III protect his own. 
 
 Q. I understand; he did not want- A Did not want some one else to come in. 
 
 Q. Then it would be altogether foreign to your purpose to sell coal lands? A. To 
 sell that coal land, yes. And if we had sold the coal land we would not have sold it at 
 $SOO an acre, the same as we were selling the surface rights to others. 
 
 Q. When you paid $100? A. When we paid $100 ourselves for it. 
 
 40 
 
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144 
 
 Q. Well, now, in a word, this Esquimait & Nanaimo Railway Companx — you say 
 that you got half? A. \Vc have half. 
 
 Q. You have half? That is all? A. That is all. 
 
 Q. Half interest? A. Half interest; half the amouni. of stock. 
 
 Q. Half tho interest in the entire stock? A Yes. 
 
 Q. Is the other half owned by parties other than yourselves? .A. Yes. 
 
 Q. How do you provide against a clash of interests? A. W<:.11. we have the con 
 trol in the directorship. 
 
 Q Is that part of the agreement or what? A. No, not necessarily. 
 
 Q. How, then, could you secure control? A. Well, I don't care about telling those 
 things, we have control in a way 
 
 O. Well, there are arrangements under which you have control? \. Yes, we have 
 cor^.'ol. 
 
 Q. Do not understand that I am trying to pry into your business, hut I only want 
 to know what the facts are? A. Well we have the control, we have tV i majority of the 
 Directors. 
 
 20 
 
 Q. Yes, anil your arrangements are such that >ou secure that control? A. 
 cure that, yes. 
 
 W( 
 
 30 
 
 Q. Well, now, when was it that you discovered this coal in the neighbourhood of 
 the land in question? A. I think it was in 1895 That is when, in August o- Septem- 
 ber, 1 knew of it; but 1 think ,t was discovered before that by a man named Hodgson. 
 
 Q. And you are now working them, are you? A. Well, we are prospecting, driv- 
 ing a slope. 
 
 Q. Well, now, irrespective or the coal there is underneath, that is, irrespective of the 
 value of the coal itself, docs the discovery of mineral enhance the value of the surface? A. 
 Of course it does. We have that right in our deed to go on the land that we sell, you 
 see, and prospect and mine for coal, pasing compensation for whatever damages ue do. 
 
 Q. Yes, I know that; but what I want to know is, irrespective of the coal itself, the 
 tinding of coal will enhance the value of the surface? A. Yes. 
 
 Q. It was in knowledge then of the enhanced value that would refer to this land 
 that you agreed to waive what you called the forfeiture? A. \o. 1 did not want to take 4° 
 advantage of that. 
 
 Q. The land would be of more value? A. Yes, it would be more valuable, but I 
 thought I would let him have the surface any way. 
 
 Q. It was with knowledge that the land would he more valuable that you concluded 
 to let it go? A. Yes; I told Mr. Solly it was throwing money away to go into law about 
 it, and Mr. Solly thought we had the mineral; but the surface we would gi\ it to him or 
 li't him have it. 
 
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145 
 
 Mr. McPhillips: Of course, my Lord, what he told Mr. Solly is not evidence. 
 
 The Court: No; only what he concluded to do. 
 
 The Witness: That is what I gave Mr. Solly instructions to tell Mr, Hobbs. 
 
 Q. I see that in Mr. Solly's letter of the .^ist January, he says to Hunter & Duff 
 (reading letter;. Did you ])lacc the ni,itter ui the hands of the Company's solicitors? A. 
 I did, yes. I told Mr. Solly to do so. 
 
 O. Well, it seems as if you had not told Mr. Solly. He says you placed the mat- 
 ter in the hands of the Com|)any's Solicitors, so that he, Mr Solly, considered that the lo 
 matter was out of his hands? A. Well, I don't know about that. 
 
 y. You don't know about that? I suppose if they had any instructions m the mat- 
 ter they would have communicated with Messrs. Flunter & Duff? A Well, Mr. 
 Solly would. 
 
 O No; not Mr. Solly Vou sec Mr. Solly writes to Hunter & Duff, s;iying the 
 reason why he has not replied to their letter is that you told him that you were going to 
 put the matter into the hands of the Solicitors of the Company. I want to know if you 
 (lid so? A. Yes; I did so. 
 
 Q Yes, at that time, January, 1896? A. Yes, I must have done so. 
 
 Q. Well, was it after advising with them, or of your own notion that you concluded 
 to waive what you considered at first was a forfeiture of the land? A. I don't (juite un- 
 derstand. 
 
 Q. I say, was it after consultation with your Solicitor-^ or without consultation with 
 your Solicitors that you eventuall\- concluded to waive what you considered was a forfeit- 
 ure of the land? A. No, I never saw any solicitors about it. 
 
 Q You acted without them? A. It was m\- own free — 
 
 Q. It was without having any consultation with them? A. Ves. 
 
 Witness stands aside. 
 
 20 
 
 3" 
 
 WILLIAM GP:0RGE PINDER, being duly sworn, testified. Examined by Mr. 
 Pooley. 
 
 y. Are you a Provincial Land Surveyor, Mr. Pinder? A. Yes. 
 
 Q. Are you employed by the E. & N. Railway Company? A. Yes 
 
 y. Did you make this plan. Exhibit " Z " (plan handed lo witness?) A. I made 
 that plan. 
 
 y, Do you see a place marked here " Louis Stark's Crown Grant?" A. Yes, 
 3066. 
 
 Q. Is the position of the Crown Grant there accurately fixed — correctly fixed? A. 
 Ves. 
 
 40 
 
L^ 
 
 20 
 
 146 
 
 ft 
 
 Q. Did you lay on these other pieces, sections here? A. Yes. 
 
 Q. Prom what did you get the material to lay on those sections? A. From a tie 
 line and also from my own surveys. 
 
 Q Also from your surveys? A. Yes. 
 
 Q. Have you seen the receipt given by Mr. Trutch to Mr. Hobbs for certain land 
 in that neighbourhood?. A. Yes. 
 
 Q. Did you lay this piece of land down here colored blue accordini^ to that receipt? 
 A. Yes, I did. 10 
 
 Q. Where did you get this portion of land colored brown from? A. Oh, I got 
 that from a plan that I saw in Mr. McPhillips' office. 
 
 O. And therefore you laid that down? A. Yes. 
 
 Q. And where did you get this from colored yellow? A. From Mr. Priest's siir- 
 ^■ey. 
 
 Q. And those are correct? A. Those arc all correct. 
 
 The Court; Q. Where is the tie line that you speak of? A. This (indicating) 
 Lot I, Lot 17, Lot 2. I make from actual survey. 
 
 Q. All the Lots in Block 17, is that what it is? A. No, .sir; Lot 2, Lot 4 and 
 Lot 7. From actual survey. 
 
 Q. What about the tie line? A. A tie line from the boundary of the District; and 
 Lot 6 by actual survey and Mr. Priest's survey as well. And that colored brown from 
 the tracing in Mr. McPhillips' office. 
 
 Q. Being the tracing furnished by Mr. Gore, isn't it? A. Yes. 
 
 Mr. McPhillips; That is E.vhibit " F." ,0 
 
 The Witness: And the part marked blue from the description given by Mr Hobbs, 
 I think. 
 
 Q. You mean Mr. /rutch's receipt? A. Yes, Exhibit " C," that is it. 
 
 The Court: Q. And Lot 6 by actual survey and Mr. Priest's survey? A. Yes. 
 
 Mr. Pooley: Q. In >our survey, Mr Pinder, did you fix the actual position of 
 Mr. Hobbs' cabin? A. Yes. 
 
 Q. You stopped there? A. I stopped there. 
 
 Cros-s-Examined by Mr. McPhillips. ^^ 
 
 Q. You found Mr. Hobbs' cabin about the centre of that piece of property Mr. 
 i'inder marked yellow on that plan, didn't you? A. Yes. 
 
 Q. That is in the centre of Lot 6? A. That is in the centre of Lot 6 about. 
 
 Q. About— speaking generally? A. Yes, about the centre of Lot 6. 
 
 Q. And this Lot 6, if it were spoken of in the way of a different system of survey 
 —dollars and cents system of survey — it would be part of Sections 10 and 11? A. It 
 would be part of Sections 10 and 1 1, Cranberry District 
 
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147 
 
 Q. Yes, part of them, and the balance— A. And the balance in Douglas Dis- 
 trict. 
 
 Q. In Douglas District; but according to the Railway Company's correction, they 
 call it all Lot 6? A. Of Lot 6. 
 
 Q. You say you found the Plaintiffs cabin there. A, Yes. 
 
 Q. And you and your party stayed there, did you not? A. We stopped there. 
 
 Q. One night was it? A. We stopped there for— oh, no, we stopped there for 
 about a week. lo 
 
 Q. In the Plaintiffs cabin? A. In the cabin. 
 
 Q. What kind of a cabin did you find it to be? A. A very cold cabin 
 
 Q. That may be; but I mean to say, as cabins go, it was above the ordinary, wasn't 
 it? A. It had no windows in it. 
 
 Q. It had no windows in it? A. No, we had to put up some .sacking to keep the 
 wind out. 
 
 Q. They had been taken away. I suppose? A. And the door was off the hinges, ^q 
 
 Q. There was a door? A. It was off its hinges; we had to put it up again. Such 
 hinges as they were though. 
 
 Q. And you stayed in it for about a week, you and your party? A. Ye.s. 
 
 The Court: Q. What time of the year was it? A. That was in 1 896, in the 
 spring of 1896. 
 
 Mr. McPhillips: O. It must have been earlier than April because Mr. Priest made 
 his survey in April? A. It was earlier than April. 
 
 Q. About what month? A. I think he went shortly after I had concluded my 3" 
 work around there. 
 
 Q. It must have been in March. You must have been there in March? A Ye.s. 
 
 Q. When you told my learned friend that the description in Exhibit " C " would 
 bring the land as you have defined it here in blue, you have assumed something haven't 
 you? A. No. 
 
 Q. Nothing? A. No. 
 
 Q. You have taken the paper to mean— first, dealing with the distance, what did 
 you take the distance to be? It says here about 2 miles west? A. Kindly let me sec"*" 
 
 (looking at Exhibit "C") 
 
 Q. Answer my question, now, Mr. Pinder. The first thing you threw out of con- 
 sideration was Bright District; it could not have been Bright District? A. No. 
 
 Q. It had to be in another district. It was Douglas District as a matter of fact? 
 A. It was Douglas District. 
 
 Q. You had to abandon that. Then about the 2 miles, what did you with that? 
 A. I laid it off, 2 miles. 
 
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 148 
 
 You did not pay any attention to the wonl "about"? A No, I laid it ofT 2 
 
 Q. And then it says west of Louis Stari<'s Crown Grant? A. Vts. 
 
 Q, It does not say west from any givLMi point? A. It said west from the Crown 
 Grant, from Lower Harcwood Lake. 
 
 Q. No, I don't think you will find that there — no. So you located it somewhere 
 else? A. In the application, that is where it was. 
 
 Q. You must have looked at the application as well? A. At the application, > es; >" 
 I looked at the application as well; I did not sec this, but I saw a copy of this. Where is 
 the application? (Application handed to witness.) Here it is. " A piece of dry land and 
 swamp situated in or about 2 miles west of Stark's place and ILirewood lake"- -and there 
 is Harcwood Lake (indicating) ''And Harewootl Lake, Cranberry District." 
 
 Q. That is the first paragraph of the application? A. Yes. 
 
 Q. Well, then, you looked at the application as well as at this? A. Oh, yes. 
 
 Q. Even then, Mr. Hinder, as a surveyor you had not got a real starting point? A. 
 Yes, from here. 20 
 
 Q. You assumed it? A. No, I did not; this is the real place. 
 
 Q. When it is said here about two miles west of Louis Stark's Crown Grant? That 
 does not sny two miles west within any lines, docs it? A. Yes, it says — supposing it 
 meant otherwise, it would say about west or in a westerly direction, but there it says west; 
 it does not say about west, or it does not say about north or about south; it says west. 
 
 Q. You assume that that means due west? .\. 1 do not a.ssume it, I ju.st take what 
 I see on this paper and I laid it off on here. 
 
 Q. Now just look at the punctuation in that Mr. Pinder, It says, "Commencing — -5° 
 A. I did not lay it off from that. 1 laid it off from the other other one. 
 
 Q. It says "Commencing at a point about two miles west"? A. It says west 
 though, it does not say " about " west. 
 
 Q. You do not apply the "about" to the "west"? A. I take two miles and I 
 apply it two miles west; I do not apply it any more or less. I apply it two miles. It 
 says two miles there. 
 
 Q. You are in very narrow lines in your definition in this matter. It says in this 
 agreement " about two miles west "? A. Well, would you have me make it about three 4° 
 miles west then, I could do that if you like. 
 
 Q. We hive got it defined now well enough. You did find the cabin there, and 
 your party stayed there about a week? A. Yes. 
 
 Q. The cabin was one of recent construction, or of .some considerable time before, 
 do you think? A. Oh, I don't know how long it had been constructed. 
 
 Q. It had been there for some time? A. Oh, yes, it had been there for some time, 
 hut I don't know. 
 
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 20 
 
 Q. You did not look around to sec if there were any posfci planted there. A. I did. 
 
 Q. Did you find any? A. ! did not find any, there ought to be four, but 1 did 
 not find any. 
 
 Q. Who would plant the four? A. Mr. Hobbs ought to have planted four posts 
 there. 
 
 Q- Why should he? A. That is according to the Land Laws, the Land Act. 
 
 Q. Hut he was not taking up land untler any Land Act. Tlicre was no requirement 
 on Mr. Hobbs' part to plant any posts? A. I think so, i«' 
 
 Q. That is your notion, but that is not a fact. Mr. Hobbs purchased this land, you 
 sec. Did you j-ee any posts at ail? A. That I surveyed here? 
 
 Q. On his land, ye.s? A. No. 
 
 Q. Mr. Priest spoke of a post, did >'ou ever see it? A. No, I never saw it. 
 
 Q There is a trail from Mr. Stark's place to Mr. Hobbs' cabin, or in the neigh 
 bourhood of it, is there not? A. There is a trail from Stark's place that runs right 
 across there (indicatin(j). 
 
 Q. It comes from Stark's in a northwesterly direction and crosses Mr. Hobbs' prop 
 crty? A. Yes. 
 
 Q. As now defined Lot 6. A. Yes. 
 
 O. That is an old trail is it not? A. Oh yes, it is a well defined trail, a good trail 
 Q. In fact, that is the way to make throufjh the country — you follow that trail? A. 
 •No, you need not follow that trail at all. 
 
 Q. Suppose you wanted to go from Stark's to Hobbs' place? A. Oh then I would 
 take the trail of course. 
 
 Q. You would then take the trail that you are speaking of? A Certainly. 
 
 Q I mean now if a man other than a surveyor — you are a Provincial Land Sur- 
 veyor you say, Mr. P. ndcr. Now, one other than a Provincial Land Surveyor, or one 
 without any technical knowledge, would he be liable to call that west of Louis Stark's place, 
 where Mr. Hobbs' place is? A. I would call it west, yes, certainly; I would call it north 
 west 
 
 Q. You would call it northwest now with the advantages of the survey? A. But 
 you can see very well from up here where you are going wiien you get up on top of the 
 hill. You can see the country around here. '^" 
 
 Q. But, now, in the light of later events we might look at it differently; but go back 
 to the year 1889 a man other than a surveyor without the knowledge that you have, and 
 so on, he might call it west of Louis Stark's Crown Grant, might he not — the particular 
 property? A. He might call it north. 
 
 Q. Would he call it north? A. No, he would call it northwest. Decidedly. 
 
 y. What would tell him the point of the compass to start with? A. If a man goes 
 in the woods he generally knows, if there is any sun, where the sun rises and sets 
 
 30 
 
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15° 
 
 Q. Besides it is only north-westerly? A. Yes. 
 
 Q. How much north of west is it? You can tell me that as a surveyor how much 
 north of west is it from Louis Stark's Crown Grant as defined there? A. Let us see. It 
 is a mile and a half west. 
 
 Q. And his southern boundary is the northern boundary produced of Stark's Crown 
 Grant? A. Yes,-that is what it is. 
 
 Q To speak graphically, it is a section of land lying immediately north of that, that 
 vou would define it? A, Yes. 
 
 lO 
 
 Looking at west as being due west? A. Ye.«. 
 
 And as you have .shown it? A. As I have shown it. 
 
 Where is that lake that is mentioned there (indicating)? A. This lake (indi- 
 
 Q 
 Q 
 Q- 
 
 eating). 
 
 Q. Where is Harewood Lake? A. This is Harcwood Lake This is Upper 
 Harewood Lake (indicating) and this is Lower H;.rewood Lake (indicating). 
 
 Q. Now, I want to draw your attention to this: This application says it is on or 
 about t»vo miles west of Lower Harewood Lake Now, as a matter of fact, Mr. Finder, ^° 
 isn't this property absolutely due west of Lower Harewood Lake? A. Yes. 
 
 Q. Absolutely due west of lower Harewood Lake That is, Lot 6, the land defined 
 now is absolutely due west of Lower Harewood Lake And you find that language used 
 in the application, it is " On or about two miles west of lower Harewood Lake." That is 
 the Harewood Lake it means? A. I suppose so. 
 
 Q. And this Lot 6 is due west. I wish you would tell me the distance from Lowei 
 Harewood Lake to this Lot 6 as now defined? A. (Measuring,) That is a mile and a 
 half. .50 
 
 Q. Take it from lower Harewood l.ake? A. It is just a Crown Grant. 
 
 Q. But we are dealing with this at the bottom of the application; it is about two 
 miles west of Lower Harewood Lake? A. Yes, but that land goes south-- 
 
 Q. Confine yourself please to my question, Mr. Finder; you are not concerned with 
 its effect. I ask you how far west of Lower Harewood Lake is Lot i. as now defined? 
 .\. 
 
 A mile and a half. 
 
 Q. A mile and a half due west? 
 
 The Court: That is the boundary of the lot? 
 
 Mr. McFhillips: Yes, to the eastern boundary, my Lord. 
 
 40 
 
 miles. 
 
 Q. And to the other side of the lot it would be how far? A. Very nearly two 
 
 Q. To the other side of the lot? A. Yes. 
 Q. That is the westerly si Je of Lot 6? A. 
 
 Yes. 
 
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 6; 
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151 
 
 Q. Do you know how far it would be by the trail that we have spoken of a little 
 while ago, from Stark's to where Hobbs' house was built? A. I suppose about two and 
 a half miles. 
 
 Q. You think it would be about two and a half miles by the trail? A. Yes. 
 
 Q. From Mr. Stark's Crown Grant, or his kKation of his Crown Grant, to Mr. 
 Hobbs' house. A. Yes. 
 
 A. That is a trail with a good many sinuosities? It is not a straight trail, is it? A. 
 It is a pretty direct trail. lo 
 
 Q. You think it a pretty direct trail? A. .\ pretty direct trail for a trail. 
 
 Q. 't winds some anyhow? A. Certainly it winds some; it winds a little bit, but 
 it is a pretty direct trail. 
 
 Q. You see, it could not be, Mr. Pinder, when vou come to analyze it a little, you 
 only find it a mile and ? half from Lower Harewood Lake to the easterly boundary of Lot 
 6; how could you make up that mile and a half if it wound some? A You have told 
 me that it wound a little and I agreed with you. 
 
 Q. It might wind a mile? A. No, it does not wind a mile. 
 
 Q. It i^ apparent that the distance has to be made up somehow, hasn't it? A. Of 
 course, it has to wind a little bit, but it is a pretty direct trail an>'how. 
 
 RE-EXAMINED BV MR. POOLEV: 
 
 Q. Mr. McPhillips has asked you here if this southern corner hereof Lot 6 '.sa mile 
 and a half from this Lower Harewood Lake? A. No, not to there. 
 
 Mr. McPhillips: No the easterly boundary 
 
 The Witness: No to the district l.ne. 
 
 Mr. Pooley: Q. I want to understand you. Mr. McPhillips asked you the ques- 
 tion from the Harewood lake to the eastern boundary? How far is that? A. (Measur- 
 ing.) About a mile and a half. 
 
 Q. That is what you said? Yes; Now you have got to tha*: boundary and Mr. 
 McPhillips wants to start from that? A Yes. 
 
 Q, Now take the description of Mr. Trutch's receipt and work it out from that 
 point; would that bring the brown part in as the proper piece? A. Cer!:ainly, it would ^° 
 
 2o 
 
 30 
 
 Q. According to Mr. McPhillips' definition of the starting point? 
 
 Yes. 
 
 Q. That would bring the brown part in a-; the property as described in Mr. Trutch's 
 receipt? A. Yes. It says to go so many chains south, then west, then east, and then 
 north to the point of commencement. 
 
 Q. Mr. McPhillips: That is something new. I want to go into that now. 
 
 By leave of the Court Mr. McPhillips further cross-examined as follows: 
 
152 
 
 Further Cross-Examination .by Mr. McPhillips: 
 
 Well now the application said about 2 miles west of Lower Harewooil Lake, did it 
 not? A. Yes. 
 
 Q. The lake was to be about 2 miles west of Lower Harewnod Lake? A. Yes. 
 
 Q. Now, why did you put the land all south of Harewood Lake? A. Because 
 here is the thing. 
 
 Q. You jumj) — you go to the receipt then do you? A. It says: Commencing at 
 the top of a ri<!gc running west to Berkeley Creek, thence south, down Berkeley Creek to lo 
 a corner post at a swamp, then east. It says — 
 
 Q. Yes, I know, but why do you put your starting point where Mr. Pooley was 
 putting it? A. You put it there yourself. 
 
 Q. How did I put it there? A. You put it there yourself when you asked me 
 about that Lot. 
 
 Q. I did not say it. A. You asked me how far it was from the Lower Harewood 
 Lake to the corner of that Lot dow n there. 
 
 Q. I did not ask \'ou that corner or any other corner? A. 1 held my rule there at ^° 
 the time. 
 
 Q. You assumed that? A. No, I did not. 
 
 Q. I asked >ou if it is due we.st from Lower Harewood Lake? A. Yes, it is west. 
 
 Q. Why would you define a piece of land which would have to be due west of 
 Lower Harewood Lake south of that — because you see you would put it where the brown 
 piece is? A. Because I plotted this from both of these. 
 
 Q. That is the reason? A. That is the reason. 
 
 Q. And you worked it out according to the notion of the Defendant Company. A 
 So that both these papers would check one another 
 
 O. As they checked one another to the Defendant Company's notion of things. 
 What I say is that brown jiiece? A. That brown piece is put on here according to two 
 miles we.st ^ ' Louis Stark's Crown Grant, Cranberry District. 
 
 Q. Irrespective of Harewood Lake; you sa\- this is defined here irrespective of Hare- 
 wood Lake, because there is nothing about Harewood Lake in that receipt, you know? A. 
 Yes, that is irrespective of Harewood Lake 
 
 O. But now, irrespective of Harewood Lake, Lot 6, as now defined, would be due 
 west, would it not? A. But not from Louis Stark's Crown Grant. 
 
 Q. But the application does not mention Louis Stark's Crown Grant, you sec 
 
 The Court: Q. He is asking you to follow the application. A. Then, according 
 to the application. 
 
 Mr. McPhillips: Q. It is due west of Lower Harewood Lake, isn't it, now— the 
 property? A. I don't understand you. 
 
 30 
 
 40 
 
153 
 
 Q, Well now. excuse mc; let me indicate, Harewood Lake is within the boundaries 
 of Lot 6 to the east, is it not? A. But, do you want nie to put it on ttie plan here ac 
 cording to this (indicating)? 
 
 Q. Answer the question first. Is not Harewood L ii<c within the boundaries of Lot 
 6 produced to the east? It practically is, is it not? A. It is. 
 
 Q. Now, if you go due west from Lower Harewood Lake? A. It takes me to 
 liere (indicating). 
 
 Q. If you got due west and defined a piece of property i6o acres in extent — just jq 
 follow me in that. A. No, I follow this piece of paper; that is what I follow. 
 
 The Court: You mu.st follow the question, 
 
 Mr. McPhillips: Q. I ask you first whether Lower Harewood Lake is not within 
 the boundaries of Lot 6, as now defined, to the east? A. It is to the cast of Lot 6. 
 
 Q. And is within parallel lines produced? A. Yes. 
 
 Q. The north and south parallel lines produced? A. Yes. 
 
 Q. Now, «e will start now at Lower Harewood lake, and we will go west. Do not 
 look at this applic:ition at all Now is not Lot 6, due west? A. If you look all over the ^° 
 place 
 
 Q. Is not Lot 6 due west? A. Certainly it is due west. 
 
 Q. And consistent with the lines of Lower Harewood Lake? A. Well, it is due 
 west from Lower Harewood Lake 
 
 Q,. And consistent with the lines of north and south A. It is due west of Hare- 
 wood Lake, that is what it is. 
 
 Q. And is not the north boundary a'^d the south boundary similar to the north and 
 south boundaries of the Lake? A. Yes. 
 
 Re-Examined by Mr. Poolev: 
 
 Q. Hut it is not consistent with the terms of that receipt, is it? A. No, it is not. 
 
 Witness stands aside. 
 
 Court adjourned until 10:30 a.m. to-morrow. 
 
 Saturday, June 19th, 1897, 1 1 a. m. 
 
 40 
 
 Court met pursuant to adjournment 
 
 EPHRAIM HODGSON, being called and sworn, testified. Kxamined by Mr. 
 Pooley: 
 
 Your name Mr. Hodgson? A. My name is Ephraim Hodgson. 
 
 Q. Where do you live? A. I live at Harewood Lake; it is about five miles from 
 Manaimo. 
 
154 
 
 20 
 
 Q. At Harcwood Lake. How long have you resided at Nanaimo and the neigh- 
 bourhood? A. I have resided at Nanaimo and in the ncighbourliood since 1885. 
 
 Q. Do you know the land in dispute in this action? A. Yes I do 
 
 Q. Coal has been discovered in the neighiiourhond of this land has it not, Mr. Hodg- 
 son? A. Yes, it was shown to the Company some time about August. 1895. 
 
 Q. Who found that coal . A. Well, I found the coal. 
 
 O. You found the coal? A. Yes. 
 
 Q. in consequence of your finding that coal did you do anything? A Yes; after '° 
 the coal appeared to be good, I came down to buy some land, 
 
 Q. You came down to buy some land? Well, what did you do? A. Well, I knew 
 that Mr. Hobbs had a piece of land up there, and I came down to see Mr. Hobbsto buy his 
 place; it was not far from the coal that I found. 
 
 Q. You came down to see Mr. Hobbs? A. Yes. 
 
 Q. Did you sec Mr. Hobbs? A. Yes, I saw Mr. Hobbs. 
 
 Q. Where? A. In his shop on Douglas Street. 
 
 Q. Do you know about the date? A. It was during the Show week of 1895, I 
 think — the Agricultural Show. 
 
 Q. The Agricultural Show of 1895? A. Yes. 
 
 Q. Do you know about what date that would be? A. I think it was Wednes- 
 day or Thursday. 
 
 Q. About what date? A. I cannot just remember the date, I know it was right 
 in the Show week, anyway. 
 
 Q. The end of September or the i^eginning of October? A. Yes, it was 
 
 Q. The same year, 1895? A. 1895. 
 
 Q. Well, you say you went to .see Mr. Hobbs? A. Yes. 
 
 Q. And you saw him? A. Yes. 
 
 Q. Where? A. In his shop. 
 
 Q In his shop in Victoria? A. In his shop in Victoria. 
 
 Q. What occurred there? A I asked him if he wanted to sell the land; and he 
 said, well, he didn't know — he had kind of left the place. 40 
 
 Mr. McPhillips: If this is contradictory of Mr. Hobbs, my Lord, I submit my 
 learned friend .should confine himself to the questions that he put to him. 
 
 The Court: Yes, that is the rule. You can call Mr, Hobbs again if you like. 
 
 Mr. Pooley: I asked Mr. Hobbs the question if he told Mr. Hodgson that he had 
 left the place, and he said " no." 
 
 The Court: Q. You saw him in his shop in Victoria and asked him if he wanted to 
 sell; what did you say he did? A. He said he had kind of left the place and he said he 
 
 30 
 
'55 
 
 would have to consult some one else before he could sell it, that was his brother. In other 
 wrrds it was not in a satisf.actory state to sell; that is what he meant, that i^i at least the 
 uiiilerstandinR I took from what he said. 
 
 Mr. I'ooley: Q. He said he had to see somebody else? .\ Yes. 
 
 Q. What else was said? A. And I said "All rijjht." He said " You call to- 
 morrow," and I said "Ail right; I will call to-morrow; I will sec my brother to-morrow 
 morning when he comes with his milk wagon." 
 
 Q. Did you call the next day? A. Yes, I called with my brother, ,o 
 
 Q. And then did you see the Plaintiff, Hobbs? A. Yes, I saw the I'laintiff, 
 Hobbs. 
 
 Q. Now, just tell us what occurred then? A. Well, he said he did not care par 
 ticularly about selling it, that it was all paid for, and he came to the conclusion that if the 
 coal turned out good it would be a good place for a milk ranch and a good i)lace to build 
 a lot of cabins if the coal turned out good. 
 
 Q. If the coal turned out good? A. Yes 
 
 20 
 Q. And told you it was all paid for? A. And told me it was all paid for; and I 
 
 started laughing at him; and I said you have only paid $120.00 on it; and he said, " That 
 
 is so; that is so." 
 
 Q. Well was anything said as to the price? A. I said " I will buy that property 
 and pay you cash right down if it is a reasonable price," and he said: " Well, I will tell 
 you what I will do, I will take $200 for it " 
 
 Q. Was there anything further said? A. I said " I will tell you — I will give you 
 ,1150.00 for your interest— the interest vou have in it." 
 
 30 
 O. " Did anything else occur? A. Well, he said, " I won't take less than $200.00. 
 
 Ofcrurse," he said " I would like my money back. I have paid as you say $120.00 on it, 
 and I would like something besides what I have paid." And I said, " I will give you 
 $100 00, that is all I will give yon." And I said, ' Wait, I want to .see the papers." And 
 he gave me a paper the description of the land, and I said " If this is the description of 
 the land, you want to sell, I will call the bargain off; I would not give you 50 cents for 
 it; it is not the place at all that your house is on." 
 
 O. The plaintiflf stated here, that he asked you $1000.00 for the land? A. Oh, 
 it is not so. He asked me $200.00. That is every cent he asked me. "^^ 
 
 Q. Did the conversation that you have referred to take place in the presence of 
 your brother? A. It did indeed sir. That is right. Mr. Hobbs, you cannot look at me, 
 that is God's truth. 
 
 Q. Do not address the Plaintiff. Now I asked the Plaintiflf in his examination 
 he e, if he had said anything to you about finding coal; if he said to you that you were 
 pretty lucky in finding coal there? A. Well, Mr. I'ooley, excuse me, I did not finish the 
 conversation with regard to the sale of the land. 
 
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 20 
 
 g. Well, very well, just tell the Court? A He said. " No, that does not make 
 any difference about that, where my house is, is the property, that is the place I want; and 
 if you will fjive nic $1 50 I will go right down with you and have it transferred to you, and 
 it will ]^e certain." 
 
 y. Me said if j ou will give me $150? A. And he says, " I will have this thing 
 settled with you satisfactorily " 
 
 Q. Now, I asked him the question here, " Did you tell Mr. Hodgson that he had 
 done pretty well about finding coal? " A. He said, " You found the coal there? " And 
 I said " Yes." He said, " What a fool I was I knew there was coal there for years." 
 
 y. Did he say anything further? A. I said, " You did? 1 suppose it is none of 
 my busines, but whereabouts did you fiid it." He says, " Oh, right on my place." 
 
 Q. I asked him the question whether he had said that he would show you the coal 
 for $100? A. Yes, he said he would show me the seam of coal for $100; and I said, 
 " All right, I will give you $icx), if the seam is any good? " 
 
 Q. Did anything occur? A. No, only he .aid, " Well you l)etter give me that 
 $150.00) and we will go down," and I said ''No, I will give you no more;" and we left 
 right there. My brother and I in company with each other. 
 
 Q. You say you have lived in Nanaimo since 1885? A. Yes, pretty much all 
 that time since 1885; I went there in July 1885 to reside permanently. 
 
 Q. Did you know that the Company reserved their coal under their lands? A 
 Oh yes. 
 
 Mr. McPhillips: I object to what this witness knows about that, as no evidence 
 against the Plaintiff. 
 
 Mr. Poolcy; It is a question of public notoiiety. 
 
 The Court: He has not answered that about public notoriety. 
 
 Mr. Pooley: Q. Was it a matter of public notoriety at Nanaimo? 
 
 Mr. McPhillips: I still object. 
 
 A. As far as my knowledge is, I think that it was. I know that from personally 
 speaking with Mr. Shaw the agent and also from the late Mr. Dunsmuir. 
 
 Mr. Pooley: Q. Is there anything else that occurred in that conversation with Mr. 
 Hobbs? A. Well, he said, what did I want with the place, and I said, "If that mine 
 IS worked out there," I said, " 1 want the place for a sheep ranch; it would be a handy •♦° 
 ()lace for a ranch." 
 
 CROSS-EXAMINED BV MR. MCPhILLIPS: 
 
 Q. Now have you been in this Province since 1885? A. Yes. 
 
 Q. What is you occupation Mr. Hodgson? A Just at the present liiiie I am 
 partly farming. 
 
 Q. Partly farming? A. Yes. 
 
 30 
 
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157 
 
 Q. Where is your actual place of abode? A. Right at Harewood Lake. 
 
 Q. Right at Harewood Lake? A. Right at Harev\ood Lake. 
 
 Q. And what interest have you in this matter? A. I have none whatever. 
 
 Q. How does it happen that you are a witness here? A. Well, I have been pros- 
 pecting a good deal for the Company. 
 
 Q. Yes; prospecting a good deal for the Company, that is the Defendant Com- 
 pany, the E. & N, Ry. Company? A. Yes. 
 
 Q. That is you are in their employ? A. Yes I am. 
 
 Q. And ha\e been and are? A. Have been off and on for about two years. 
 
 Q. And still arc? A. Yes. 
 
 Q. For about two years. You were in the eniploj- of the Company when you went 
 to see Mr. Hnbbs? A. Yes 1 was. 1 had been working for them for about a month I 
 suppose. 
 
 Q. Had founil coal, and made a good taing out of it for them? For the Com- 
 pany? A. For the Companj. 
 
 Q. Or for yourself? A. Oh yes, for myself. 
 
 ■Q. Not for the Company, you don't think? A. Oh, 1 don't know nothing about 
 their business. 
 
 O. No. Now, it was onl>- a milk ranch you were going to see about this land for? 
 A. No, sir. 
 
 Q. Only a milk ranch? A. No, sir; 1 said a sheep ranch. 
 
 y. Sheep ranch. No other reason prompted you to go to see the plaintiff? None 
 whatever? Although you were in the employ of the Defendant Company? A That 3" 
 was always my motive; I went there for the purpose of buying the place for a sheep ranch. 
 
 Q. How did you know that Mr. Ho'bs owned any land in the neighbourhood? 
 A. He left a noti' m his cabin to the effect that things should be left in good care for 
 the use of others and so on, and signed " F. V. Hobbs." 
 
 y. He left a notice in his cabin to tlie effect that things should be left in good care 
 for the use of others? A. The things in the cabin, with the dishes and stove and pan. 
 The cabin should be left in gooti condition, and that there should be no fire left there to 
 burn the cabin down. 
 
 40 
 
 Yes. 
 
 Q. Anil Mr. Hobbs left the notice there? A. 
 Q. And signed it? A. Yes. 
 
 Q. F. V. Hobbs. It did not look like he abandoned his land then did it? A. If 
 an empty cabin is an indication of abandonment I should think it cert.unly would be. 
 
 Q. A good deal of life about it; when there was a notice of the . ner up there, 
 wasn't there? A. I don't think a notice is occupation. It is not for me to argue to you 
 that a notice is occupation. 
 
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,58 
 
 Q. We will not deal with that. How did you know ho\v much Mr. Hobhs had paid 
 for th,., property? A. I had found out from Mr. Solly. 
 
 g. You got in the confidence of the railway company that far? A. Not whatever. 
 
 Q. How did you know then? A. Well, I called in there to find out if Mr. Hobbs, 
 a.s I had heard that he had abandoned his place, and I called in there to find out if it 
 was so. 
 
 Q. And what wa.s told you? A. I was told that he had paid $120.00 and that he 
 had evidently abandoned it— well, Mr. Solly said he has evidently abandoned it as he 10 
 never has responded to any of my letters asking him to pay up. 
 
 Q. So thnt you v\ ent to buy an abandoned place from a man that had no right to it? 
 A. I did not know that it was abandoned. 
 
 O. Well, M.. Solly did tell you it was abandoned? A. Yes; I only know what 
 Mr. Solly said. 
 
 Q. And you thought then a notice stuck up in the cabin was an abandonment, too? 
 
 A. The notice was not there any length of time after Mr. Hobbs Itit; any great length 
 
 of time. I think it was pulled down by the hunters or somethinL^ 
 
 '' 20 
 
 Q. Well, you knew Mr. Hobbs' land very well, then; you evidently thought about 
 
 it a good deal? A. I knew it, I suppose, better t!.an Mr. Hobbs. 
 
 Q. Yes, you knew it better than Mr. Hobbs. Now do you wish me to believe that 
 you went the;c to buy this land to turn it into a sheep ranch? A . do And I told Mr. 
 i'riest before I ever saw the CV.mpany, that [ was going to buy it. 
 
 Q. You did not know that there was coal on Mr. Hobbs' land? A. I thought 
 l)robably there might be, there was indication of it. 
 
 Q. You thought probably there might be; and \ou would like tc find some more 30 
 coal for the Company— would vou not lia\e? A. Fhat is my bussness 
 
 Q. It would have been advantageous for you to find some more; a matter of profit 
 for you to find some more would it not have? A. That is m\- business, what ,t would 
 ha\e been to me. 
 
 Q. His l^ordship will define that. It would have been a matter of profit to find 
 mere coal for the Defendant Company? A. Well. I would have been paid so much by 
 the day. "^ 
 
 g. And still more p-ofitable if you had found lard with coal on it, would it n()t?4i' 
 A. Certainly; the su'^ice of the land would be enhanced in value. 
 
 Q. Hut even a little wider than the surface, like we are contending lor here, if you 
 found the land and the coal as well it would be more \aluable to >'ou? A. Certainly it 
 would. I wish 1 did own the coal 
 
 g. Yes, and if you could have got Mr. Hobbs' land which would carry the coal 
 with it, it would have been of more value. A. If I could have got the coal, I would 
 liave given him ^i 150.00 all right. 
 
'59 
 
 (j. Voii went there to-get a transfer of his title whatever it was? A. Certainly. 
 
 Q. Yes. j'ou wanted to get a transfer of his title. You knew more about his pur- 
 chase evidently that he did, at first, anyhow. He said he paid all on it and you told him 
 be only paid $120.00. A. That is all, 
 
 Q. Then he said he would take $200.00 for it? A. Yes. 
 
 Q. And you said you would give him $5000 for it? A. 1 told him I would give 
 iiim $50.00. 
 
 Q. What did you offer him such a ridiculous sum as $50.00 for it for? Why did 10 
 you do that now? Isn't that ridiculous? A. No it is not ridiculou.s at all. 
 O It is not? A. No. 
 
 Q. Mr. Hobbs had bought this property away back in 1889, and coal had been 
 discovered right close to it, he had paid $120 and he had built a house, and it was some 
 eight years nearly afterwards— no not eight years, about six years after that? A The 
 reason I offered him $50.00, is that I considered his improvements just of that value. 
 
 Q. Just to that value. You could not build a house for that? A. He could build 
 such a house as he had for $25.00- 20 
 
 O. That is what you think. Now then you said that he showed vou some paper? 
 A. Yes. 
 
 Q. What paper did he show you? A. He showed me some receipt he had got for 
 the money — $120.00. 
 
 Q. Are you a surveyor or an expert in describing land or anything of that sort? 
 A. No, I don't know that I am. 
 
 30 
 
 Q. He showed you a piece of paper? A. He showed me a piece of paper. 
 Q. Did you read it over? A. Yes 1 read il. 
 
 Q. Do you think it was that paper (Kxhibit C handed to witness)? A. I think 
 this is the paper; it looks like it. 
 
 Q. Did you read it over, do you remember, at that time? A. Yes, I remember. 
 
 Q. And you said you would not give him fifty cents for it, if that was his title? A 
 Ves. 
 
 Q. Would not give him fift)- cents for it, although you had been to Mr. Soll.\- and 
 found out that Mr. Hobbs had really purchased land right there; and the Company then . ^ 
 told you that; and yet when he produced his evidence of it, you said you would not give 
 him fifty cents for it? A, I said I would not give him fifty cents for it. 
 
 Q. Oh. for the paper? A. Hecause it was not describing the place that he wanted. 
 
 Q. You are not concerned with what he wanted, or were you — it was land )ou were 
 after? A. I told you what he wanted was land that I wanted to buy. 
 
 Q. Now you say you would not give him fifty cents for this land described in hcrt? 
 A. Described in there. 
 
i6o 
 
 Q. You wanted me to believe that. It was a sheep ranch that you wanted there? 
 A. Yes. 
 
 Q. That was what you wanted. But Mr. Hobbs' place was the ideal place you had 
 before you, the proper place for the sheep ranch; no other place would have suited you in 
 the neighbourhood? A. Well, it was the most centrally of where there was no settlers. 
 
 O. Now, we will show you this plan, which has been referred to here (handed to 
 witness). You sec the blue block is where the Company say the description would fetch 
 the land— would define the land. The yellow block you see there is where Mr. Hobbs' 
 house is and the property in question; the brown piece is where even to-day Mr. ^° 
 Trutch took to be Mr. Hobbs' land Now what variation is there in distance there? The 
 brown piece and the yellow piece all form one block, if taken together, would they not? 
 A. Yes. 
 
 Q. Now, wouldn't that have done for a sheep ranch down there — this brown piece ^ 
 
 \ery well? A Well, you .see Mr Hobbs' place is most central and there is not likely to 
 be any land sold out there; there would be no land called for there outside of that place. 
 
 Q. The brown piece is no good then? A 1 don't think it is very much good; no. 
 
 Q. What is it like? A. Pretty much rock)-. 20 
 
 O There are no .swamps and ridges in that? A. What there is, is of such poor 
 character that it is not worth wliile to go and purchase it. 
 
 Q. The fact of the matter is it is not agricultural land, the brown piece? A. There 
 is none of it agricultural land. 
 
 Q. So that it was out of the question for Mr. Hobbs to take that brown place when 
 he went on the land at the first instance? A. I don't know what he could have done. 
 
 Q. But it was not agricultural land? A. One man might look upon it as agricul- 
 tural land and another man might think it was another thing. ^ 
 
 Q. But you have changed your mind now? .A, No, I h.T.e not changed my mind. 
 
 Q. Now, Mr. Hobbs said, " If you give me $150 I will go right down and fix it 
 up "? A. Have it transferred to me 
 
 Q. That would not sound like a man who had abandoned his property, or had no 
 title to it? A. No. 
 
 Q. The fact of the matter is you were up to Mr. Hobbs' for a purpose of your own? 
 A. For my own special 
 
 Q. Yes, a purpose of your own? A. Yes. 
 
 Q. Was it your own purpose? A. It was my own purpose. I told him— I told 
 Mr. Priest before I left I wanted to buy the place for that very thing. 
 
 Q. You pin your statement to that? ^. Yes. 
 
 Q. For a sheep ranch? A. For a sheep ranch. 
 
 Q. And yet it was that identical spot you wanted and no other? A It was the 
 very place 1 wanted. 
 
 40 
 
i6i 
 
 Q. And you want me to infer that you arc such an expert that on the rearling of 
 Exhibit C you knew at once that Mr, Hobbs had no title to the land? A. I itnew it 
 was not the land; I knew it did not describe the land on which his cabin was. 
 
 Q. Point out to nif here? A. Because the cabin is on Cranberry District, and 
 that described Bright District. 
 
 Q. That is why. Bright District— we have had that settled altogether? A. Why 
 do you ask me the question if you have it settled. 
 
 Q. That it was Douglas? A. I can't help that. 
 
 Q. But that was your reason, because Bright District was in there? A. Certainly- 
 
 Q. That is your whole explanation? A. That is my explanation. 
 
 Q. Why did you bring your brother up with you the next day? A. Why did I 
 bring my brother? 
 
 Q. Yes. A. Wh\- should I discard my brother when I was going to buy a piece 
 
 lo 
 
 of land? 
 O. 
 Q- 
 
 (). 
 
 20 
 
 Who is your brother; what does he do? A. He works in Victoria no^r. 
 
 What was he doing then? A. Living in Victoria? 
 
 And who was he working for? A. I could not tell you. 
 
 Vou don't know that? A. No; I am not my brother's keeper. 
 
 How was it you happened to bring your brother along? A. Because we were 
 going out together; he says, "Where are you going?" and I said, '■ I am going down 
 there, " and I had not seen him for .several weeks, and when I came to V' tor.a I stayed at 
 h s jilacc and he went arouno with mc. 
 
 O. Why did \ou ask yorr brother to go with you? A. I did not ask my brother ^o 
 to go with me. 
 
 Q. Did you tell him where you were going? .A. Yes. 
 
 g. Did you tell him what you w ere going about? A. I tolil him what I was going 
 about, and told hitn I ha<l called in. 
 
 O. You told him you would like very nnich for him to come along and hear what 
 Mr. Ilobbs said? A. Not at all; I had no motive in it whatever. 
 
 Q. Why did you bring him along? A. Because 1 told you we had always been 
 i;oing together when I came to Victoria, Naturally, as brothers would. I had no motive 40 
 in taking my brother to liear what Mr. Mobbs said bcrauie my brother nor I nexer 
 thought the thing would come up again 
 
 O. How did ti'c railway company become aware of all these negotiations between 
 you and Mr. Hobbs? A. I have already told you that 1 asked Mr. Hobbs if the land had 
 been obtained. * 
 
 Q. But after the interviews, how did the railwa)- company become aware that you 
 had gone to see Mr Hobbs? After you had had these interviews how did they become 
 aware? A Because they told me I could haxe the place if Mr. Hobbs did not want it. 
 
l62 
 
 Q. That is it? 
 
 The Court; Who told you that? A. Mr. Dunsiiuiir told me. 
 
 Q. Heforc you went to Mr, Hobbs or afterwards? A. Afterwards. 
 
 Mr. Mcl'hiilips: Q. You would like to jump this place of Mr. Ilobbs? A. I did 
 not jump it. 
 
 Q. You would like to? A, It is not what I like. 
 
 Q. Well, did you (,m down and tell the Company what took place Ijctween you and 
 Mr. fiobbs? A. I went ar '. I saw Mr Solly. '° 
 
 Q. Immediately afterwards? A. Yes, immediately afterwards. 
 
 Q. AnrI told him that that had taken place? A. No, I did not tell him all that 
 had taken place. 
 
 Q. How much of it did you tell him? A. 1 told him I had seen Mr. Ilobbs and 
 cvidentl>- he did not intend to abandon the place. 
 
 Q. You told him you had seen Mr. Hobbs and evidently he did not intend to aban- 
 don the place; did you tell him anything else? A. No, I don't remember that I told 
 him anything else. 
 
 Q. Did he .seem interested to hear th.it? A. No. 
 
 Q. He did not? A. There was no expression in Mr. Solly's countenance one way 
 or the other. 
 
 Q. No cxpre-ssion. You did not tell him nnj- more than that? A. Not that I re- 
 member of. 
 
 Q. No. Not a bit more than that? A. Not that I remember of. 
 
 O. Now, how is it that you tell more to-day— how did the Company know what 3° 
 look place between you and .Mr. Hobbs other than the fact that he intended to abandon 
 the place? A. Well, in what way? 
 
 Q. How did they come to know it more than that Mr Hobbs merely intended to 
 retain his interest in the place? A. Well, he went down after he found out that I wanted 
 to buy the place from him— well, I said, " If you are not going to makeup your payments 
 iif interest. I will buy the place from the Company." 
 
 Q. But how did the Company know more of this interview between you and Mr. 
 Ilobbs? A. ITow much more of this interview? 
 
 Q. 'N'ou only told Mr. Solly that Mr. Hobbs intended to retain his place? A. Yes. 
 
 Q. Hut you have told us a good deal more to day. How did the Company know? 
 A, What is the more that you have reference to? 
 
 Q. Everything that took jilace, those conversations between you and Mr. Hobbs? 
 A. If you will state what statements it is. 
 
 The Court: You know perfectly well what he wants to know. 
 The witness: No I do not know, your Lordship, 
 
 40 
 
i63 
 
 The Court: F^c wantn to know how the Coinpanj' came to know of all the conversa 
 tioii that occurred Ixitween you and Mr IIohl)s when )()ur brother was there as a witness 
 to it. A. Oh it was afterwards; it wa'- some time afterwards. 
 
 Mr, McIMiillips: O. How lont; afterwards? A It was after Mr Hobbs had 
 claimed the minerals that the Companx' got to know the rest of the conversation. 
 
 Q. Did they send for you? A. No, they did not send for nic. 
 
 Q. Did you volunteer this evi(i(;nce? A. 1 saw Mr. Dunsmuir and he asked me 
 what I knew about it. 
 
 lO 
 
 Q. And it was then you told him? A. I told him what took place between me 
 and Mr Hobbs, jii.st the same as I have told you. 
 
 Q. Vou were still in the employ of the Company? A. Certainly I was. 
 
 Q. Ves, certainlx- you were? A. I cannot reiueinber — I don't know, I am just 
 workinf,' by the day, 1 might not be in the Company twenty-four hours for tiiat matter. 
 
 Q. Yr; 1 (jot into a little trouble up in )our neighborhood a while ago? A. What 
 trouble ha\e you reference to? 
 
 Q. Any trouble? A. What trouble have you reference to? '" 
 
 Q. An)' legal troubles? A. What ''."^al troubles wiis there? 
 
 The Court: He asks you a question — Did you get into any troubles? You had 
 better answer that. 
 
 Mr. Pooley: I don't think tint h;is anything to do with the case 
 
 The Court: 1 cannot tell whether it has or not, Mr. Pooley. 
 
 Mr. McPhillips: Phis witness has been called on a question of credibility, and I 
 think I am within my province as Coun.sel to elicit that, which will have some bearing. 30 
 
 The witness: Well, I don't know what trouble you mean; if you will state what 
 trouble F will tell you exactly, whether 1 ha\e had or not. 
 
 Q. Any legal trouble 1 will say? A. Have I any legal trouble? 
 
 O. Were you prosecuted in an>' Court of law at any time? A. Certainly I have 
 been prosccuthH. 
 
 Q. You have been prosecut'.-'(l in a Court of law? A. Yes. 
 
 Q. In the Province of British Columbia? A. In the Province of British Columbia. 
 
 O. On what charge? A. I was charged with the wilful murder of Louis Stark, of 40 
 Harewood Lake. 
 
 The Court: Q. The prosecution came to nothing? A. It came to nothing at all, 
 only my confinement for 16 weeks. It was not the Government at all that took up the 
 prosecution, it was entirely a private individual. 
 
 Re-Examined by Mk. I'OOLEY: 
 
 Q. You have been asked Mr. Hodgson, a great deal about why you wanted this 
 land. I think you stated in your examination in chief that the land was close tp where 
 you found the coal? A. Yes, not far from where I tound the coal. 
 
164 
 
 Q. And is that what made the land valuable to you? A. Yes. 
 
 Q. I think you state that you told all this conversation to Mr. Dunsmuir after Mr. 
 Hobbs claimed the mineral and you happened to see Mr. Dunsmuir A. Yes, certainly. 
 
 Q. Mr. Dunsmuir did not send for you? A Mr. Dunsmuir did not send forme; the 
 conversation took place in a cabin not far from my house, and down the lake side, which 
 Mr. Dunsmuir can testify to the same thing. 
 
 Witness stands aside. 
 
 10 
 
 HUTCHINSON HODGSON, being duly sworn, testified. Examined by Mr. 
 Pooley: 
 
 Q. Your name, Mr. Hodgson? .A. Hutchinson Hodgson. 
 
 Q. Where do you live now? A. 155 Fernwood Road, Victoria 
 
 Q Do you know the I'lai itiff in this action, Mr. Hobbs? A. I h;ive seen him 
 several times. 
 
 20 
 
 O. Where are you working now Mr. Hodgson? A. 
 man of the E. & N. Railway Company. 
 
 Working for Mr. Bland, fore- 
 
 'orothcr? 
 
 You are working on the E. & N. Ry. Cn's works? A. Yes. 
 
 Now did you in 1895 or at any time see the Plaintiff, Mr. Hobbs. with your 
 A. Yes, I saw the Plaintiff, Mr. Hobbs, in the fall of 1895. 
 
 In the fall of 1895? A. Yes. 
 
 O. Was that the time you saw him with your brother? A. That was the time 1 30 
 saw him with my brother. 
 
 Q. Now will you state what conversation took place in your hearing between your 
 brother and Mr. Hobbs? A. Well, 1 went tlown with my brother, being the holidays, 
 ffjr the agricultural show; and when we got down to Pandora Street my brother said: " 1 
 will have to see Mr. Hobbs about his farm up there"; he sa\s " We will go in there first"; 
 so we went in, and my brother said " Ha e you seen \our brother, Mr. Hobbs"? And he 
 said " Yes." " Well " he said, "what arrangements did you make"? " Well " he said, 
 " 1 don't know." he said " I would like to sell it, and I don't like to sell it." But he said 
 " At any rate, I will take $200.00 for it if you pay nie cash down." 4° 
 
 O. ;• At any rate, I will take $200 00 for it if ,\ou pay me cash down "? A. Yes. 
 So my brother bid him $50.00, and then they talked about coal and one thing and 
 another about the place; he said to my brother, he says: " You made a big thing in find- 
 ing coal out there"; and my brother said "Yes." And he says "What a fool 1 was, I 
 knew there was coal out there years ago." 
 
 Q. Yes. A. And then they went on talking about what the place would be useful 
 for and one thing and another, and Mr. Hobbs said: "Well, if the coal turns out good"; 
 
i65 
 
 he says '• it will be a good thing for that place; \ou could build lOO cabins on that for 
 miners." 
 
 The Court: Q. Who said that? Mr. Hobbs. A. Ves, my Lord; and he says, " It 
 is also a very good place for cattle " 
 
 Mr. Pooley: Q, F"or cattle? A. For cattle. And then my brother says, " Let 
 me look at your papers"; and Mr. Hobbs says, •' I don't know whether I have got them 
 here or not, but I will have a look in the office." So he went into the ofifice and produced 
 the paper, and my brother read it; and before he produced the paper my brother says, " I 
 will give you$ioo for it." Well, he saj-s, " Let mc look at your i)apers first." And he 
 biought the paper out as a receipt, and he said as soon as he read it, •' Mr. Hobbs 1 would 
 not give you fifty cents for it." Mr. Hobbs said, " Win." And my brother told him it 
 it was not the land represcni d that was on the paper where his cabin was. And he said 
 lie was going to have that t.;"!^ anyway, that was the land he wanted. So I read the 
 paper over, too. And I toid Mr. Hobbs then that he had not one atom of claim to it, he 
 had forfeited his right to the property, he had not fulfilled his agreement with the Railway 
 Company; it was not even in his power to sell it to us. And he says, " I will tell you what 
 I will do, Mr. Hodgson, anyway, I will take $150 and go right down to the Compiny 
 now and have it transferred over to )ou," " No," my brother says, " I wouldn't have 
 anything to do « ith it under any circumstances." And u ith that we left. 
 
 O. With that jou left. A. Ves. 
 
 Q. Now, Mr. Hobbs yesterda' ~tated that he made the offer there to your broi'if; 
 of $1,000.00? A He did not, sir There never w,ts a $1,000.00 mentioned about any- 
 thing. It was $200.uC he asked him. d 'o more. 
 
 Q. Now, did anythmg else occur tl ynu can recollect? A Wtn, I don't exactly 
 remember of anything else at |;resent. 
 
 Q. How hing have you resiiled in .N'anaimo- uhcic did Nnulive? A I have 
 lived in Nanaimo at three different occasions; 1 lived there in somej)artot SS5 and 1886; 
 and I think it was in 1889 and 1890. I was working for the \"ancou\ei l\>n\ Company 
 there — I think that is the >car — and I have lived there in 1895 in the Spring of 1895. 
 
 Q. Did you know that the Railway Company reser\ eil their minerals? A. I 
 knew from parties saying so 
 
 Mr. McPhillips: I object to that. 
 
 The witness: I didn't know it for a fact. It was gcnerali , d about. 
 
 Mr. F'ooley: O. It was generally talked about? A. Any one that spoke about 
 the land question. I came out here to start ranching and when I came w ith the inten- 
 tion, of course, it w as natural for mc to ask how the land w as sold, and under what 
 restrictions, and the price, etc. 
 
 CUOSS-EX.AMINEI) BY Mk. McPHILLIP.S: 
 
 10 
 
 20 
 
 30 
 
 40 
 
 Q. Now, you say Mr. Hobbs produced some paper, and you read it over? A. Ves 
 sir, 1 read it. 
 
i66 
 
 Q. Do )-oii remember what was in il now? A. Oh yes, I remember a portion of it. 
 
 Q. What ditl it sriy? A. The terms of payment, what I think is 25 per cent, 
 down, and equal instalments in 1,2 and 3 years; but I th'nk ii was 6 per cent., but I am 
 not positive. 
 
 Q. Had you much acquaintance with buying and selling land, and terms of sale? 
 A. Well, only I have had a little; I liave a little property of my own; 1 have bought a 
 little and I have .sold a little. 
 
 Q. You were prepared after you read this rccei|)t to say at once that Mr. Hobbs 10 
 had no right to the particular Innd that he iiad built his cabin on, and further that he had 
 no right under the agreement anyhow because he had not made his payments? A. He 
 had not made his payments and he had forfeited his rights accoriiing to the agreement. 
 
 Q. You think the agreement read that way? A. Certainly, it says 25 percent, 
 down, and some date, and one, two and tl'ree years. 
 
 Q .And it said if he did not pay the balance within a particular time the land would 
 be forfeited? A. That is generally the thing. 
 
 Q. Rut did it say that? A. No, it did not. 1 did not see the agreement likCoQ 
 that, no. 
 
 O. Did any law>er tell you that an agreement like this would be forfeited if the 
 instalments were not paid? A. If I made an agreement with you to pay it in a certain 
 time and I did not pay it, I would expect vou to bring it into Court 
 
 O. You think that is what the law is? A. That is the law at the present ti ne. 
 
 Q. You would be astonished to know that that is not tl\e law at all? A. Any 
 man that makes agreements that don't fulfil the agreement he loses all the claim. 
 
 Q. You arc in the employ of the Defendant Company, now, you have stated you 3° 
 are working for the Railway Companj', are you not? A. Yes, for the Railway Com- 
 pany's employees. 
 
 Rk Examined bv Mk. Fooi.kv. 
 
 y. Were \ou working for the Railway Company when you went with your brother? 
 A. No, sir. 
 
 Q. You were not? A. I was not. 
 
 Q. What were you doing then? A. I have been working around the city for my- 40 
 self for about five years. 
 
 Witness stnnds aside, 
 
 Mr. Pooley: That closes tiie Defendant's case. 
 
 Mr. McPhiltips: There is only one thing, my Lord — I asked in examination in chief 
 whether any statements were made to Mr. Hobbs about the reservations at the time he 
 agreed to purchase; since then, Mr. Trutch has gone into the bo.K, and the e.vtent of his 
 evidence is merely that it was his custom to inform applicants that minerals were reserved, 
 
i67 
 
 and he docs not remember telling the Plaintiff personally All I can do is to call the 
 Plaintiff to swear positively that he was not informed of the reservations. 
 
 The Court: He swore to that distinctly. 
 
 Mr. McPhillips: Therefore, I do not think I will call any evidence in rebuttal. 
 
 The arguments of Counsel here followed; upon the conclusion of which the Court 
 rose, judgment being reserved. 
 
 10 
 
 REASONS FOR JUDGMENT OF THE HONOURABLE THE CHIEF 
 
 JUSTICE. 
 
 Davie, C. J. 
 
 This is a suit for specific performance .if a contract entered into by Mr. Trutch, as 
 the Land Commissioner of and acting on behalf of the Defendant Company, for the sale 
 to the Plaintiff of certain lands of the Company. The contract was dated 28th November, 
 [889, and took the form of a receipt signed "John Trutch, Land Commissioner," acknowl- 20 
 edging payment by Mr. Hobbs of $120, '• being a first payment on account of his purchase 
 from the E. & N. Ry. Co. of 160 acres of land in Bright District, at the price of $3.00 an 
 acre (describing the land); the balance of the purchase money to be paid in three equal 
 instalments of 75 cents an acre at the expiration of one, two and three years from date 
 with interest at the rate of 6 per cent, per annum." 
 
 It is iot denied that the receipt, if otherwise binding, constitutes by virtue ot payment of 
 the instaln.onts (although after time) and the bringing of suit to enforce it, a mutual agree- 
 ment for sale of the land (Sec. 470, Fry on .Specific Performance, 3rd Ed., and cases collected 
 in Canadian Law Times, 1894, p. 312). and that '\t^ prima J'acic effect would be an express 3° 
 contract for sale of the minerals and all Defendants interest in the land (Bower v. Cooper, 
 2 Hare 408), "« racla t(S(/iie ad rent rum" On the 6th April, 1892, the Defendants' Land 
 Commissioner, Mr. Gore, replying to Plaintiffs letter asking the Defendants to name a 
 person to survey the land and to give certain information for the purpose of the survey, 
 wrote *o the Plaintiff intimating the C'ompany's approval of Mr. Priest as surveyor and 
 cnclo'.ing a trncing which described in red the Plaintiffs land, as taken from the description 
 furni.ihed by the Plaintiff upon his application to purchase. In June, 1893, and on 15th 
 February, 1894, the Defendants' Commissioner wrote Plaintiff, calling his attention to 
 110.1-payment of instalments and interest and retjuesting payment. Soon after this the 4° 
 Company discovered coal under or in the immediate vicinity o*"the land now in question. 
 In November, 1895, the Plaintiff applied to complete the purchase, but the then Land 
 Commissioner, Mr Solly, ,'ifter consulting with Mr. James Dunsmuir, the Vice President, 
 claimed that the agreement was forfeited owing to the lapse of time and the neglect of the 
 Plaintiff to pay any attention to the letters of June, 1B93, and 15th February, 1894, de- 
 manding payment. Afterwards, however, the Defendants concluded to allow Plaintiff to 
 complete his purchase, and on the 2nd March, 1896, Mr. Solly wrote the Plaintiff that he 
 was instructed to inform the Plaintiff "that the Company are now prepared to issue a con- 
 
1 68 
 
 vcyancc to you of the land you agreed to purchase in Douglas District providinj^ that within 
 two months from date you have the land surveyed and the notes sent in to this office, and also 
 jiay up the overdue charges on the same," amounting to $499.60, which included interest 
 $129.60, and title fce$io. The Plaintiff accordingly had thcland surveyed by Mr. Priest, the 
 survey Wtxs accepted by the Company on the i ith of April, and the required moneys were 
 duly ])aid within the time mentioned in Mr. Soil) 's letter. There is a variation between 
 the description of the land in Mr. Trutch's receipt and as finally surveyed, the one being 
 described as in Bright District, whereas the survry and the subsetiucnt instructions of the 
 Defendants' Comm ssioner place the land partly in Douglas and partly in Cranberry Dis- 10 
 tricts. It would seem that the first description would locate the land within timber limits 
 already disposed of by the Defendants. However, there is no dispute on the score of 
 location, and I think the variation is immaterial. Plaintiff having from the first located on 
 the land now in question and having built a cabin there and made some other trifling im- 
 provements. The only ijucstion now raised is as to the coal and minerals under the land; 
 facilities for extracting them, and the cutting of timber for railway purposes. The De 
 fendants have tcntlcred Mr. Hobbs a conveyance which reserves the inincral and other 
 privileges, and thLs conveyance the I'laintiff has refused to accept. The Defendants say 
 that they had no intention of parting with the minerals or of conveying anything beyond 20 
 bare surface rights, and, moreover, that Mr. Trutch had no authority to sell land except 
 subject to the reservations of their usual printed form of conveyance, which was the form 
 tendered to the Plaintiff in this case, and that a contract for anything else |)rocecded 
 wholly upon mistake. 
 
 The Court will not as'-ist a plaintiff in taking advantage of the plain mistake of 
 another, and as the mistake cannot be established without evidence, a defendant is permit- 
 mitted in a su t for specific performance to sujiport his defence by evidence dehors the 
 agreement; Chinnock vs. Marchioness of El)-, 4 DeG. J & S., 638. This at once dis- 
 poses of the objection of the Plaintiff's counsel against evidence of what is termed the in- 3° 
 door management of the Company. In Manser v. Hack, 6 Hare 443, premises were 
 advertised to be sold according to certain printed particulars and conditions of sale. Just 
 before the sale took place the vendor determined to reserve a right of way to other prem- 
 ises, and so notified the auctioneer by handing him a copy of the printed conditions, 
 altered so as to make the reservation. In selling, the auctioneer read the altered condi- 
 tions, but the party who became the purchaser did not hear, or observe the alteration, nor 
 had he observed any of the amendeil particulars, some of which were distributed in the 
 auction room. The purchaser and the auctioneer (the latter inadver.'^ently) signed the 
 contract for sale, minus the reservation; the purchase money was paid and possession 4° 
 given. The purchaser having brought suit for specific performance of the contract without 
 reservation of the right of waj', the bill was dismissed en the ground that the auctioneer's 
 authority to sell without the reservation had been revoked, and that it was competent for 
 the defendant to insist on such revocation, and to adduce parol evidence of such revoca- 
 tion although uncommunicated to the Plaintiff. Barnard vs. Cave 26 Beaven, 253, was 
 the case of an agreement between a brewer and a publican for a 14 years lease, nothing 
 being said about taking the brewer's beer, or that it was to be what is termed a "brewer's 
 lease," yet the Court being satisfied of the brewer's intention to grant only a " brewer's 
 
169 
 
 lease," refused specific performance except on terms of a covenant to take the Defendant's 
 beer. In Helsham vs. I-anfjlcy i Y. & C. 175, on a bill lor the specific performance of an 
 agreement by which A, as agent for H, contracted to let C a piece of ground for a term of 
 years at a yearly rent, it appearing from the evidence that B intended to let the ground 
 for the building of houses of a particular class, and that in authorizing A to act as agent 
 in the letting of the ground he had told him the |)urposc for which it was to be let, it was 
 held by Vice-Chancel lor Shadwcll, that as the agreement did not contain any rrference to 
 building nor any covenant to build, it was' not. under the circumstances, such an agree- 
 ment as ought to be performed. It becomes necessary therefore, to iiujuirc into the facts con- 10 
 nectt.d with the Defendants' real intention respecting sales of their projjerty.and as to Mr. 
 Trutch's authority as land agent with reference thereto. It appears that the late Robert 
 Dunsmuir owned and operated extensive collieries in the neighbouring district of the land in 
 <luestion So as to shut out opposition and the opening of competing mines, hecontractcil with 
 the Dominion Government to build and operate a railwaj' from Wellington to Victoria in con 
 sideration, among other things, of an extensive grant of public land expressly including 
 all coal and base minerals thereunder, and comprising the pre.sent land and all Crown land 
 within many miles of his collieries. He formed the Defenilant Comjiany, taking him.self 
 one half of tl e capital stock thereof, anil so arranging affairs with the other shareholders as 20 
 to retain him.self a controlling interest upon the directorate. Under the terms of the 
 Government Grant, bona fide squatters were entitled, subject to certain limtations, not- 
 withstanding the Compan>-'s grant, to a conveyance of the freehold of the surface rights of 
 the squatted land to the extent of 160 acres to each squatter at the rate of one dollar an 
 acre, and it was also provided that the land to be conveyed to the Company should, excejit 
 as to coal and other minerals, and also except as to timber lands as thereinafter mentioned, 
 be open for four years to actual settlers for agricultural purjio.ses at the same rate of one 
 dollar an acre to each actual settler, and that in any grants to settlers the right to cut tim- 
 ber for railway purposes, etc., should be reserved. Apart from the agreement now in 10 
 question, the Company have only once made any sale of mineral rights, and that was to 
 Mr. Dunsmuir himself, who paid the Company therefor at the rate of $100 per acre. The 
 transaction with the Plaintiff was after expiration of the four years limited for the incoming 
 of settlers, and after the death of Mr. Dunsmuir, whose duties as President of the Company 
 devolved upon his son, Mr. James Dunsmuir, who became Vice-President of the Com- 
 |iany. The evidence is clear and uncontradicted that Mr. Trutch's duties as Commissioner 
 were limited to the disposal of surface rights according to the printed form of conveyance 
 in use by the Company, which has never been deviated from, and both Mr ' atch and 
 Mr. Dunsmuir swore that there was no idea in the Plaintiffs ca'e of parting with any- ^^ 
 thing except surface rights. The Company's upset price after the expiration of the four 
 years was three dollars an acre, and grants were always made on the Company's forms. 
 There was clearly, then, a mistake on the part of Mr. Trutch in entering into an agreement 
 the legal effect of which is so startingly at variance with his instructions. In this connec- 
 tion the question of ratification becomes quite immaterial. In ratifying Mr. Trutch's con- 
 tract, which the Company undoubtedly did (and it must be remembered that their ratifica- 
 tion related back to the date of the original contract, see Bolton Partners vs. Lambert, 
 L. R. 41, C. D. 295, followed in In re Portuguese Con. Copper Mines, Ltd., L. R. 45, 
 C. D. 16), they fell into the same mistake as to its legal effect which Mr. Trutch did in 
 
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 making it. The ratification can s'.\nd on no hijjljcr ground tlian the contract, and liaving 
 occurred under palpable mistake neither is it to be enforced by action for specific perform- 
 ance, although such mistake is unconnected with the conduct of the party seeking to en- 
 force the contract and proceeds entirely upon the misconception of the party against whom 
 the contract is sought to be enforced: Mason vs. Armitage, 13 Ves. 25; Day vs. Wells, 
 30 Hcav. 224, and Fry on Specific Performance, Sect. 752, 3rcl Kd., where the law is thus laid 
 down: " Mistake may be of such a character as in the view of a purely common law 
 court to avoid the contract on the ground of want of consent, or of total failure of con- 
 sideration. But equity docs not confine the defence of mistake to these cases. The iq 
 principle upon which it proceeds is this, that there must be a contract legally binding, but 
 that is not enough; that to entitle the F'laintiff to more than his common law remedy the 
 contract must be more than merely legal; it must not be hard or unconscionable, it must 
 be free from fraud, from surprise and from mistake, for where there is mistake there is not 
 that consent which is essential to a contract in equity: not vuktilur i/iii erruiil roiifCHliie." 
 It was urged during the argument that the mistake was one of law only, and that although 
 specific i>erformance is excused where a mistake of fact has arisen, yet every- 
 one is presumed to know the law and a mistake of law will not excuse; but 
 this contention is, 1 think, fallacious. In Coojier vs. I'hibbs, L. R., 2 H. jq 
 L. 170, Lord Westbury says: "It is said ' Ignoranlia Juris hand excusat' but 
 in that maxim the word 'Jiif ' is used in the sc: - of denotmg general law, the ordinary- law 
 of the country. But when the word 'Jus' is used in the sense of denoting a private right 
 that maxim has no application;" and in Earl Beauchaump vs. Winn L. R. 6, H. L. 234, 
 Lord Chelmsford says: 'The rule i[s^noraiititi, etc., appliei where the alleged ignorance 
 is that of a well known rule of law, but not where there is a matter of law arising upon the 
 doubtful construction of a grant." There are many cases to be found in which equity 
 upon a mere mistake of law, without the admixture of other circumstances, has given re- 
 lief to a party who has dealt with his property under the influence of such a mistake. As oq 
 I am of opinion that specific performance in this case must be refused on the ground of 
 mistake, I do not propo.se to consider the Defendants' objection that the Plaintiff is disen- 
 titled by reason of his laches, fui ther than to say that such laches have j robably been con- 
 doned by the Defendants in receiving the delinquent instalments and permitting the 
 Plaintiflf to complete. In Bloomer vs. Spittle, L R 13 Eq. 427, a case .somewhat the 
 converseof this, the Defendant b- d, in a conveyance which should have been of the fee sim. 
 pie, reserved to himself the. minerals. The mistake was that of the Plaintiff's Solicitor, 
 and was not discovered for several years, and the Defendant denied the mistake, but died 
 before the hearing. Under the circumstances Lord Romilly, M. R., held that there had been aq 
 a common mistake, but thought that he ought not compulsorily to alter the deed and so 
 force upon the Defendant a instrument he had never executed. He, therefore, gave the 
 Defendant the option of rectifying the deed or of having the whole transaction set aside, 
 and in the latter case the Defendants would have to repay the purchase money with inter- 
 est. Plaintiff fixed with an occupation rent, and there was an enquiry as to the amount Plain- 
 tiff was entitled to in respect of repairs and lasting improvements. A decree somewhat of 
 this kind is what I think will meet the justice of this case. The Plaintiff is entitled to 
 damages if the contract is set aside, for although the mistake shields the Defendants from 
 specific performance, it does not in any way disturb the validity of the contract nor its 
 
171 
 
 ratification by the Defendant Company, which I thinl< the evidence abundantly establishes. 
 Before the judicature practice this suit would have been dismissed without prejudice to the 
 Plaintiffs proceeding at law for recovery of damages. Now it is the duty of the Court to 
 dispose of the whole question at once. In Tamplin vs. James, L. R. 15, C. D. 215, James, 
 L. J., remarks concurring with Krett, L. J. " I am also of opinion that where an action 
 is brought for specific pertormance and specific performance is refused on the sole ground 
 of mistake by the Defendant, the Court ought to give the same damages as would under 
 the old practice have been given in an action at law." The measure of those damages is 
 that adopted by the M. R. in Bloomer vs. Spittle, which complies with the rule laid down 10 
 in Rowe vs School Board for London, L. R. 36 Ch. D. 622, that where no fraud or bad 
 faith is attributable, the Plaintiff can only recover whatever money has been paid by him, 
 with interest and expenses, and nothing in damages for the loss of his bargain. Bain vs. 
 Fothergill, L. R. 7, H. L. 158. The Plaintiff has himself committed no act disentitling 
 him to damages as in Hipgrave vs. Case, L. R 28, C. D. 356, nor is this a case where the 
 contract has become incapable of specific performance as in Lavery vs. Pursell L. R. 39^ 
 Ch. D. 508, or impossible of perforii ancc as in Ferguson vs. Wilson, L. R. 2, Ch. App. 
 JJ. The Plaintiflf swears thai at the time of entering into the agreement he believed and 
 had no reason for disbelieving that the minerals passed. I am not quite sure what would 20 
 have been the effect if this had been otherwise. See Cato vs Thompson, L. R. 9, Q. B. D. 
 616, but compare Barnard vs. C?,ve, 36 Beav. 253. The only expenses in this case would 
 seem to be the costs of the buildings erected by the Plaintiff, and costs of sur- 
 veying the land. Decree, therefore: Gi/e Plaintiff the option of accepting the 
 conveyance tendered, in which crxse the action will be dismissed without costs, 
 following the remark of Lord Romilly in Day vs. Wells, 30 Beav, 224. I should 
 not think of giving costs in a case where the mistake has been produced by the Defend- 
 ants, or at option of Plaintiff, award damages for breach .if contract, i. e. return of moneys 
 paid with 6 per cent interest from respective dates of payment, also compensation for his xo 
 expenses, which will include his own time and labour upon the cabins and other improve- 
 ments and in the survey. Let an inquiry as to those amounts be held by the Registrar, if 
 so desired I will fix them. For the same reason as in Day vs. Wells, there will be no 
 costs to either party, either up to and including the hearing. Further costs will be reserved. 
 
 ORDER FOR JIjDGMENT. 
 
 Saturday, 19th June, 1897: 
 
 Before thf. Honourable Theodore Davie, Chief Ju.siice: 
 
 This acii n coming on for trial on the 17th, i8th arid 19th days of June, 1897, before 
 the Honourable Theodrre Davie, Chief Justice, in the presence of Counsel for the Plaintiff 
 and Defendaiits, and upon hearing the evidence of the witnesses on behalf of the Plaintiff, 
 viz., of Frank Vicker Hobbs, Ral[ I. !^r:;mley, Allan G. Murray, C. C. Pembcrton and 
 Elijah Priest, tiiken viva voce at the trial and upon reading parts of the evidence of John 
 T»utch, Leonard H. Solly, James Dunsmuir and Thomas Sinclair Gore, taken upon exam- 
 
 40 
 
172 
 
 ination for discovery and put in on behalf of the Plaintiff and upon hearing the evidence 
 of the witnesses on behalf of the Defendants, viz., of John Trutch, Thomas Sinclair Gore, 
 Leonard H. Solly, James Dunsmuir, William George Pinder, Ephraim Hodgson and 
 Hutchinson Hodgson, and upon examination of ail the exhibits produced by the Plaintiff 
 and the Defendants, and upon hearing what was alleged by Counsel on both sides. 
 
 This Court doth adjudge that specific performance of the agreement of the 18th Nov- 
 ember, 1889, as set out in the third paragraph of the Plaintiffs Statement of Claim be 
 refused — and doth declare that the Plaintiff shall be entitled to receive at his option the 
 conveyance of Lot 6, Douglas District, as tendered by the Defendants to the Plaintiff, as ^^ 
 set out in paragraph 8, of the Plaintiffs Statement of Claim, in which c'se this action will 
 be dismissed without costs or that the Defendants shall return the mr .eys paid to them by 
 the Plaintiff with interest thereon from the respective dates of payment at the rate of 6 per 
 cent, per annum, and further, that the Defendants shall repay to the Plaintiff compensa- 
 tion for his expen.^'^s for the improvements placed by him upon the said land, which shall in- 
 clude his own time and labour and shall further repay to the Plaintiff the costs incurred by 
 him in che survey of the said land. Let an enquiry as to these amounts be held by the 
 Registrar of the Supreme Court, or if so desired the Court will fix them. 
 
 20 
 
 And thi •• Court doth further adjudge that there will be no costs of either party up to 
 
 and including the hearing. And let the consideration of further costs be reserved and any 
 of the parties are to be at liberty to apply to this Court as they shall be advised. 
 
 By the Court. 
 
 HARVEY COMBE, 
 
 Dep. -Registrar. 
 
 NOTICE OF APPEAL. 
 
 30 
 
 Take notice that the Plaintiff (appellant) appeals from the judgment of the Honour- 
 able Theodore Davie, Chief Justice, and the whole of the order and decree thereon of date 
 the 19th day of June, 1897, and entered herein on the 26th da\' of July, 1897, wherein it 
 was ordered that specific performance of the agreement of the 28th of November, 1889, as 
 set out in the 3rd paragraph of the Plaintiffs statement of claim be refused, and it was 
 declared that the Plaintiff should be entitled to receive at his option the conveyance of 
 Lot 6, Douglas District, as tendered by the Defendants to the Plaintiff as set out in 4° 
 in paragraph 8 of the Plaintiffs statement of claim in which case this action would be 
 dismissed without co.sts or that the Defendants should return the moneys paid to them by 
 the Plaintiff with interest thereon from the respective dates of payment at the rate of si.x 
 per cent, per annum, and further that the Defendants should repay to the Plaintiff com- 
 pensation for his expenses for the improvements placed by him upon the said land which 
 should include his own time and labour and should further repay to the Plaintiff the costs 
 incurred by him in the survey of the said land. And that an enquiry as to these amounts 
 be held by the Registrar of the Supreme Court or if so desired the Court would fix them. 
 
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 173 
 
 And it was further ordered that there would be no costs to either party up to and includ- 
 ing the hearing; and that the consideration of further costs should be reserved and any of 
 the parties were to be at liberty to apply to said Court as thej' should be advised. 
 
 And further take notice that the Full Court will be moved, in appeal, at the Law 
 Courts, Bastion Square, Victoria, B. C, on Monday the lOth day of January, 1898, or so 
 soon thereafter as the said Court shall sit and Counsel can be heard, by Counsel for the 
 above named Plaintiff (apiiellant) that the judgment and order be set aside and that it be 
 ordered that the Defendant Company (respondents) do specifically perform the 
 agreement of the 28th day of November, 1889, and that the Defendant Com- 
 pany (respondents) be ordered to execute a deed of conveyance in fee simple 
 of the said land to the Plaintiff (appellant) without reservations, save such as are contained 
 in the Defendant Company's (respondents') original Grant from the Crown. 
 
 The grounds amongst others, upon which the Plaintiff (appellant) appeals, are, as 
 follows : 
 
 1. The evidence shows that the Defendant Company was the owner of a large area 
 of land and in the management thereof, as distinguished from its railway business, had a 
 separate department styled the Land Department and a distinct executive officer, styled ^° 
 the Land Commissioner. 
 
 2. The Plaintiff on the 28th day of November, 1889, went to the office of the 
 Defendant Company and agreed to buy the land in quest-'on receiving from the then Land 
 Commissioner of the Defendant Company, Mr. John Trutch, an agreement in writing of 
 said date signed by John Trutch, Land Commissioner, the said paper writing having 
 printed th^eon the name of the Defendant Company and the words " Land Department." 
 
 3. That the Plaintiff according to the evidence and finding of the learned trial judf . 
 was unaware and was not made aware of any intended reservations of minerals, and no ' 
 reservations are contained or notified in the said agreement or contract of sale of the land 
 of date the 28th day of November, 1889 
 
 4. The evidence shows that John Trutch was held out by the Defendant Company 
 as an agent having full authority to contract on its behalf in respect of sales of land. 
 
 5. The contention of the Plaintiff is that he is entitled to specific performance of the 
 agreement of the 28th of November, 1889, and a conveyance of the land to him in fee 
 simple without reservations of any other kind than the usual reservations as contained in 
 the original grant to the Defendant Company from the Crown. 
 
 6. According to the evidence and to the finding of the learned trial judge there v-vi 
 a sufficient agreement to satisfy the Statute of Frauds. The learned trial judge in his 
 reasons for judgment stating " It is not denied that the receipt, if otherwise binding, con- 
 stitutes by virtue of payment of the instalments (although after time) and the bringing of 
 suit to enforce it a mutual agreement for sale of the land, and that its frima facie effect 
 would be an express eontract for sale of the minerals and all Defendants' interest in the 
 land ' a caelo ttsi/uc ad cent nun, ' " 
 
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 174 
 
 7. It is submitted that the agreement for sale of the land is binding on the Defend- 
 ant Company according to its legal effect that Mr. John Trutch in contracting was acting 
 within the apparent scope of his jL„ihority. 
 
 8. To affect the Plaintiff with any limitation of authority in the Land Commissioner 
 it was incumbent on the Defendant Company to show that the Plaintiff knew that there 
 was a restriction upon the general powers of the Land Commissioner the sale of land being 
 within the scope of his apparent authority, and there is no evidence to support the Defend- 
 ant Company in this. 
 
 9. The agreement of the 28th day of November, 1889, is silent as to the estate to be 
 granted. It is submitted that no less estate being specified the agreement is for the sale 
 of the fee simple, /. e., the vendors' (the Defendant Company's) interest 
 
 10. It is submitted that in the absence of any conditions or contract to the contrary 
 the Plaintiff is entitled to have conveyed to him all that the Defendant Company can con- 
 vey, which is the fee simple — without reservations of any kind — save subject to the re- 
 servations in the Defendant Company's grant from the Crown. 
 
 1 1. It is submitted that at most the evidence for the Defendant Company shows 
 that Mr. John Trutch was verbally advised to sell land reserving the minerals, although he 
 was held out as Land Commissioner and no limitation on his authority was published or 
 brought home to the plaintiff. The evidence being that the Plaintiff swears positively 
 that he was not advised of any reservations and Mr. John Trutch fails to state that any 
 reservations was .stated to the Plaintiff. Upon such a state of facts when the agreement is 
 in its nature plain no mistake can, it is submitted, be set up. 
 
 12. It is submitted that the evidence does not support a case of mistake. The 
 evidence shows that the Defendant Company was careless and relied only on the Land 
 Commissioner verbally notifying purchasers that the minerals were reserved, and the 30 
 evidence in this case negatives such notification and there was no knowledge in the Plain- 
 tiff of any reservations. 
 
 13.. The agreement of sale is not ambiguous in its terms and it is submitted that 
 the learned trial judge erred in law in holding that the Defendant Company is entitled to 
 evade performance of it by the simple statement that the Land Commissioner made a 
 mistake. 
 
 14. It is submitted that the secret instructions of limitation of authority to the Land 
 Commissioner can in no way avail the Defendant Company they were in their nature 40 
 verbal and in the way of its indoor management. And it is submitted that the Plaintiff 
 was justified in contracting with the Defendant Company through its Land Commissioner 
 the latter in so contracting doing an act within his apparent authority. It is further sub- 
 mitted that the Plaintiff was entitled in the ordinary course of business to assume that the 
 Land Commissioner was authorized to contract as he did, 
 
 15. It is submitted here that the alleged mistake is not such as will be relieved 
 against — if mistake at all it is the mistake of the Defendant Company alone. And it is 
 submitted that neither the common error of both parties nor the sole error of the Defend- 
 
175 
 
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 20 
 
 ant Company as to the operation and effect of the contract can be ground for resisting 
 specific performance. 
 
 16. The learned trial judge in his reasons for judgment holds that there was a mis- 
 take on the part of the Land Commissioner in entering into the agreement of sale, using 
 the following language: "There was clearly then a mistake on the part of Mr. Trutch, 
 in entering into an agreement the legal effect of which is fo startingly at variance with 
 his instructions," but it is submitted that the evidence is not such as to affect the Plaintiff 
 with any such mistake. 
 
 17, It is submitted that the Defendant Company if not otherwise Hable is liable on 
 the ground of ratification of the agreement of sale to the Plaintiff — in the acceptance or 
 acquiescence in and the taking of the benefit of the contract. The learned trial judge has 
 held that there was ratification using the following language in so holding : " In ratifying 
 Mr. Trutch's contract which the Company undoubtedly did (and it m\ist be remembered 
 that their ratification related back to the date of the original contract) they fell into the 
 same mistake as to its legal effect which Trutch did in making it. The ratification can 
 stand on no higher ground than the contract and having occurred under palpable mistake 
 neither is it to be enforced by .iction for specific performance although such mistake is 
 unconnected with the conduct of the party seeking to enforce the contract and proceeds 
 entirely upon the misconception of the party against whom the contract is sought to be 
 enforced." In finding ratification of the contract it is submitted that the learned trial 
 judge has erred in law by engrafting on it the alleged mistake. And it is submitted that 
 the Defendant Company by ratification arc bound by the contract according to its legal 
 effect. 
 
 18 It is submitted on the evidence that the Defendant Company is by non-dissent, 
 part performance, ratification, and estoppel precluded from setting up mistake. The 
 evidence shows that the agreement was entered into on the 28th November, 1 889, and iq 
 $120 was paid on account of the purchase price of the land and the Plaintiff was let into 
 possession and made improvements on the land and the Defendant Company acted 
 throughout under and upon the terms of the said agreement and all dealings were in con- 
 formity with and referable to the said agreement only and the Defendant Company 
 accepted the balance of the payments and interest payable according to the terms thereof 
 and on the 8th day of May, 1 896, executed a deed in alleged compliance with the said 
 agreement containing the reservations objected to by the Plaintiff (this being the first 
 intimation of any contention on the part of the Defendant Company of any claimed reser- 
 vations) and which deed was immediately returned to the Defendant Company. And not 40 
 until the 3rd day of September, 1896, is the money paid by the Plaintiff under the 
 agreement returned to him by cheque, which cheque was immediately returned to the 
 Defendant Company by the Plaintiff. 
 
 19. It is submitted upon the facts and circumstances of this case fully brought out 
 in the evidence that it is not a case calling for the interposition of equity, the Defendant 
 Company cannot be said to have mistaken their title, the Defendant Company being the 
 owners in fee simple of the land in question there was the capacity to contract and to sell 
 the whole estate vested in it — and it is not the case of mistake of law arising from the doubtful 
 
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 construction of the grant. The agreement of sale is and always has been clear antl unam- 
 biguous and it cannot be said that there couUl have reasonably been iitiy doubt or mistake 
 as to its true construction. The learned Trial Judge therefore having found a valid con- 
 tract and ratification, erred in law in holding that there was any mistake in the contract 
 entered into. 
 
 20. It is submitted that in any event the learned Trial Judge erred in law in decree- 
 ing that the Plaintiff was only entitled to a conveyance in the terms of the deed as ten- 
 dered by the Defendant Company to him— in that at most the Defendant Company only ^^ 
 contended but failed to i)rove — that the minerals were reserved, whilst the deed as ten- 
 dered reserves. («) The right to the Defendant Company, its successors and assigns to 
 enter upon the land in question and cut and carry away timber for railway purposes with- 
 out paying compensation therefor. (I>) The right ro the Defendant Company, its suc- 
 cessors and assigns to rights of way for the Railway and the right to enter upon and take 
 such part of the land as may be required for stations and workshops without paying com- 
 pensation therefor, (r) The right to the Defendant Company; its successors and assigns, 
 
 to all coal, coal oil, ores, mines, minerals antl quarries whatsoever in or under the land 
 with full liberty of ingress, egress and regress with full liberty to sink shafts, etc., erect ^^ 
 machinery, etc., open roads, etc., for workmg and carrying away minerals, etc., and 
 appropriate and use any part of the land for depositing minerals, etc., thereon paying 
 reasonable compensation for such of the surface of the land as might be taken, damaged 
 or destroyed by the said searching, etc. 
 
 21. It is submitted that in default of specific performance being decreed the Plaintiff 
 is entitled to damages in the way of full comjieiisation for the lo.ss of his bargain. 
 
 Dated this 14th day of December, A D., 1897. 
 
 C C. PKMBHRTON 
 
 Solicitor for the I'laintiff (Appellant). 
 
 To CiiAS. E. Pooi.EV, ES(,) , 
 
 Solicitor for the Defendants (Respondents.) 
 
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 IN THE SUPREME CODRT OP BRITISH COLUMBIA. 
 
 IN THE FULL COURT. 
 
 10 
 
 Hktwken 
 
 FRANK VICKI'.K IIOHHS, 
 
 AND 
 
 I'LAIMIhf .A I'l K.I.I. ANT), 
 
 THK KSQUIMAI.T AND NANAIMf) RAILWAY COMPANY. 
 
 Uefendant.s (RE-SPONOENTS). 
 
 30 
 
 Hkfokk the Honourable Justices Wai.kem, Drake am> (■ vinc;. 
 
 30 
 
 RKASONS FOR JUDGMENT OF JUDGF:S OF FULL COCRT. 
 
 Drake, J 
 
 Thi.s is an appeal from the Chief Justice refusing the Plaintiff specific ()erformance on 
 the ^jrounil of the mistake of the vendors- -the learneil Chief Justice finds certain facts 
 which the Ap|)cllaiit does not seek to controvert — the chief findinjj of importance is that 
 the Defendant Com])any adopted and ratified tiic acts of Mr. Trutch, their agent, who 40 
 contracted to sell the lanii in question to the Plaintiff. The mistake alleged is that .Mr. 
 I'rutch failed to act on the verbal instructions given him by Mr. Dunsmuir, tlie President 
 of the Company, not to sell the minerals. The Plaintiff states positively that when he 
 paid the first instalment of the purchase money and received the receipt in question no in- 
 timation was ever given that the minerals were not intended to pass, and Mr. Trutch says 
 that he made a point of so informing all purchasers, but could not speak as to particu- 
 larly informing the Plaintiff. It is rem,irk.-iblc that Mr. Trutch did not insert the reserva- 
 tion of the minerals in his receipt of the purchase money as ilic chief value of these lands 
 
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 consists in their minerals. The Defendant Company ;i.-e the freeholders of a very large 
 tract of country, over two million acres, the minerals and timber whereof are their chief, 
 and in most cases their only commercial value. 
 
 Mr. Trutch, seems to be under the impression that the use of the term lands 
 merely imported surface I'ghts, but mines and minerals will pass under the term 
 lands Shep. Touch 90, Townley vs. Gibson 2 T. R. 701 However the contract which is 
 evidenced by the receipt Exhibit "(!" has, as the Chief Justice has found, been ratified by the 
 rJefendant Company, but as 1 understand the Chief Justice the ratification mentioned was 
 merely of the act of Trutch, in giving the receipt, but not of the omission of Mr. Trutch ^^^ 
 to inform the PlaiTitiff, that the surface of the lands was all that was intended to be '«»xKI, 
 No intim.'tion was given to the I'laintiff that he was not entitled to a conve\'ance in fw 
 until he had [i:\id his purchase money and a deed not only reserving the minerals hut im- 
 posing othtT onerous burdens on the purchaser was presented. 
 
 The Plaintiff was put in possession in 1.S90 after payme'it of the first instalment, and 
 built a 'og house on the propert)', but has not personally occupied it ^iiice. No questing 
 is now raised as to the validit)' of the contract, the main contention being that Mr. Trutch 
 made a niistake and therefore the Defendants are entitled to a rescission of the contract, 
 and specific performance should not be decreed 
 
 A mist^^ke if mutual is relieved against by the Court so in some cases, is mistake, 
 which is only the mistake of one of the parties to the ' jiitract. A mistake has never 
 l)een defined in a Court of c(|uity : it consists amongst .rther th'ngs in ignorance or forget- 
 fulness, Kelly vs. Solari 9 M. & W. 54, of a fact i)assed as in Willan vs. Willan 16 Ves 72 
 or present Cocking vs. I'ratt 1 Ves. 400, In 1893 the Defendants gave the Plaintiff notice 
 that his instalments were due, and again in t'ebruary, 1894, and in March, 1896, he was 
 informed that the Company were prepared to is-iue a deed tn liim on payment of the 
 balance c'uc On 28th April. 1896, the Plaintiff sent to the Defendants a marked chetjue ..^j 
 for $499.60, balance due, and on 8th May Defendants enclosed a conveyance dated ist 
 May purporting to convey to Plaintiff" Section 6, Douglas District, containing 160 acres 
 more or less — saving and reserving to the Company the right to enter upon the land and 
 cut and carry away timber for railway purposes without compensation and also reserving 
 rights of way for their railway and the right to take lands for stations and workshops 
 without compensation, and also reserving all minerals with liberty to enter search for and 
 carry away the same and to make pits and erect engines and open roads and appropriate 
 the surface for dumping ground but in such case they were to pay compensation On 9th 
 May Plaintiff returned the deed claiming that there were no reservations when he made ^ 
 the agreement to buy. The Company kept Plaintiffs cheque until September 3 and then 
 returned it 
 
 The Defendants say that Mr. Trutch made a mi.stakc. if he did not in fact inform the 
 Plaintiff" that the minerals did not pass, and acted contrarj' to his express instructions and 
 that they were under the impression that such instructions had been carried out. This is 
 not a care of mutual mistake, but of an alleged mistake of the vendors, the purchaser in 
 no way induced or contribut.-^d to the error, he was paying a slightly higher |)ricc for lanel 
 than was charged by the l*rovin,.ial Government, which only reserved mines royal ;;nd 
 
179 
 
 coal. The Court cxt rc'scs a jiirisd ction to relieve when a mi.'-takc is pro\cd, even in 
 C'lSes when it is only on one .;iclc. Th(^ principle referred to in the argument as laid 
 down In Story's Equity 147. is that a person cannot ha\e relief unless the party benefitted 
 by the mistake is disentitled in e<|uity and conscience from retaining the advantage he has 
 ac(iuired. This broad statement has not been acted on in its entirety in Wycombe Rail- 
 way Comjiany vs. Donnington Hospital. I,. R. i, Ch. 273, Kniijht Hruce, L J,, says: " It 
 would be contrary to the 'ules of this Court to enforce specific performance against a 
 Defendant swearing and jiro. ing that his sense and understantling of the agreement in 
 <luestion was different from th;it of the purchasers '" 10 
 
 Malins vs. Freeman 2, Keen 25, and Manser \s. Hack 6, Ila. .).43, are also cases of 
 mistake arising from neglect of the principals' orders, although such orders were not com- 
 municated to the purchaser, in ca.ses o*" .ale at an inai.le<|uate value — the Court has refused 
 to enforce performance, Mortlock vs. Huller 10, \'es. 292. On the other hand Stewart vs. 
 Kennedy 15 A. C. 75, Lord Watson says: '• L'i)on general principles one party can never 
 defend himself against specific performance, by setting up a misunderstanding on his part 
 of the real mealing of the (nitract, to permit such a defence would destroy the security 
 of contracts and Powell vs Smith. 1. R 14, V.i\. 85, the same doctrine was enunciated 
 a'(l the Master of the Rolls use- this lan;_,'uage : "When the defendant by his agent has ^o 
 adopted a certain form of agreement, ami then wlien he finds that it gives certain rights 
 which he did not intend, he wishes to put ;m end to it but this Court considers that every 
 one entering into such a contract is hound to know wliat the law is, and as the Defendant 
 entered into it with his eyes open (assuming that he is bound b,\' the acts of his agent) he 
 cannot set it aside because he finds the construction of it is against him;" and again in 
 Harrow vs Isaac i^ Son, I,. R, i, Q.H- ' l8<9i) 417, the Court held that the mistake of the 
 Solicitor in not ascertaining what his cl cnt's real position was bj- examination ot the docu- 
 ments in his possession was not such a mistake that equity \\oul(l relieve against, hut none 
 of the Judges denied that the Court had jurisdiction to relieve if they thought fit to e.xer 3° 
 cise their tliscretion. I'he general result of the cases is that the Court has jurisdiction in 
 any ca.sc of mistake which has been proved, to exercise their discretion and grant equitable 
 relief, and taking all the circumstances into consideration I see no reason to differ from 
 the Chief Justice in his view th.at sjKcific performance should not be decreed but 1 think 
 his judgment should be varied on other points, viz : 
 
 The reservations contained in the doeil other than the right to minerals are not 
 alluded to in the evidence and tlnre is no evidence that these reservations were part of the 
 instructions given to Mr. Trutch bj- Mr Dunsniuir. If then the I'laii. "'" is willing to 
 accept a deed sinipl\- reserving the minerals the action will be dismissed \\i\.,. ,ut costs. As 
 the Plaintiff never amended hii claim b\ an alternati e claim for damages .and asked for 
 no amendment at the trial he cannot get hi' costs in the Court below, see Hijjgravc vs. 
 Case, 28, ('. D., 356. I think there should be no costs of this ajjpeal. 
 
 40 
 
 Walkk.m, J ; I concur. 
 
lO 
 
 180 
 
 Irving, J. 
 
 The material facts in this case arc as follows; 
 
 The Plaintiff on the 28th day nf November, 1889, then being unaware that the 
 Dcfeniiant Com[)any were scllinfj their lands subject to a reservation of mines and minerals, 
 called on Mr. Joun Triitch, at that time the Company's Land (!onimissioner. and after 
 some conversation, handed Mr. Trutch a document, l""xh'bit B. which is as follows: 
 "The d'^scription of a piece of land 1 wish to pre-empt or purcha.se" (then follows the 
 description and the Plaintiffs si^mature). Mr. Trutch issued to him the document. Ex- 
 hibit C. 
 
 ESOUIMALT & NANA! MO RY. CO.— LAND DEPARTMENT. 
 
 Victoria, H. C, Nov. 26, 1889 
 
 Received of Frank V'ickcr Hobbs the sum of one hundred and twenty dollars ($1201, 
 being a first payment on account of his purchase from the E & N. Railway Company of 
 one hundred and sixty (160) acres of land in liright District at the price of three dollars 
 ($3) an acre. (Here follows descri|;tion) the balance of purchase money to be jiaid in 
 three eijual instalments of seventy five 1751 cents an acre at the expiration of one two and 20 
 three years from date, with interest at the rate ■^( 6 per cent, per annum. 
 
 (Sd.) JOHN TRUTCH, 
 
 Land Commis.sioner. 
 
 Plaintiff |)aid his mone\-, entered into po'-scssion, and after a slight dispute with the 
 Company as to being allowed to complete his purchase, received a letter (2nd of March, 
 1 896), from Mr. Solly, the then Land Commissioner, informing him that the Company 
 would issue to him (the Plaintiff 1 conveyance of the land that he had agreed to purchase, 
 providing the Plaintiff had the land surveyed, anil paid up the instalments in arrears, with ,,, 
 interest. 
 
 All these things the Plaintiff tlid; and the Company sent him a (:on\eyance drawn in 
 the form usuall\' adopted by the Company. This was a con\ eyance of the surface only; 
 the mines and minerals were reserved, and there were also oilier very extensive reservations 
 in favor of the Company, e. g., of rights of w ay, the right to cut timber, to sink shafts and to 
 work the mines. These reservations are hereafter referred to as surface .'eservations. The 
 Plaintiff at once, 9th May. 1896, returned this document to the Com;)ari) in a letter, in 
 which he stated that the deed was not acci jitable. "being full of reservations, " — but not 
 specif)'ing whether the reser\ations objected to were the mines and minerals, or 40 
 merely the surface reservatii'Us. Matters remained in abe\ance until the 3rd September, 
 i8g6, when the Company sci.t to the I'laintiff a cheque for $619 60, being, as stated in the 
 covering letter (I'.xhibit V), the refund of all moneys |)aid by the Plaintiff on the purchase 
 of Lot 6, the conve\ance for which he, the Plaintiff, had refused to accept from the 
 Company. 
 
 On the 23rd December, 1896, the I'laintiff tendered to the Compan>- for execution 
 a deed to himst;lf of the land, without any reser\ations (Exhibit X), other than the reser 
 va ions, etc., expressed in the original grant from the Crown, the deed which he considered 
 
y 
 
i8i 
 
 he was entitled to under Hower vs. Cooper, 2 Hare, 408; anil on tlie Company refusing to 
 execute this deed, hroufjht this action for specific performance, and for an injunction re- 
 straining the Company from mining for coal, coal having been discovered in or under the 
 land in question, in August, i8c>5. 
 
 At the trial which was had before the Chief Justice withoit a jury, the Plaintiff said : 
 "When I bought I set quite a value on the timber which was on the land. I had no idea 
 but what I was e-ititled to all the timber, and to all that was under the land. I had no 
 idea of any reservations at all ; thev were not notific;! to me at any time ; nothing called 
 my attention to reservations ; and at the t'me of the getting of the agreement there were 
 no reservations mentioned, shown, or spoken to me, and I hn 1 no knowledge of any reser 
 vations, as I had only lately arri\'ed in the countr)- ; I knew nothing about the Company's 
 lands, or any reservations." (i)age 26 ) The Plaintiff was cross examined, but for 
 the purposes of my judgment 1 accept hi.s statement. 
 
 For the defence, evidence was gi\en that Mr Trutch's authority was liinited to the 
 sale of surface rights only. '"'Q) What were the instructions that were given to you by 
 Mr. Dunsmuir when you were appointed? CTh's was the late Mr. Robert Dunsmuir, t'^e 
 President of the Defendant Company.) ("A.i To <ell the land for $S an acre, reserving 20 
 all minerals and coal. 'O.) Was that the only authority to deal with the riilway lands? 
 fA.) That was the only authority I had. IQ.) Have you always acted upon that 
 authority? (A.) Alwa\'s." 
 
 He always used a form on conveyance to purchasers similar to that sent to the Plain- 
 tiff in this case ; he, in fact, never used any other, he had never sold the coal or mineral.s 
 during his term of office ; (page 102), he usually told people that he sold the surface only ; 
 that was his general custom, but he could not say that he had so told this particular 
 Plaintiff, (page 105.^ 
 
 The vice-president of the Company. Mr. James Dunsmuir, said at (pages 131 and 
 [52); that he was one of the directors of the Company in 1S89 ; that his instructions to 
 the Land Commissioner (Mr. Trutch), were to sell the land and reserve all minerals ; that 
 no "minerals l^ad been sold by the Commissioner at any time ; that the onK' sale of miner, 
 als ever made b\- the Compan>- had been sokl tn the late Robert Dunsmuir, the President 
 of the Company, and the sale in that case was not made by the Land Commissioner, but 
 und( r a resolution passed at a general meeting of the Comjiany. 
 
 And again at page 132, in cross-examination to Mr. McPhilli])s: fO."! You say 
 your instructions were to him (Mr. I'rutch), that he was only to sell the surface, not the 
 minerals? (A.) Not the minerals ; sell the land, but not the minerals. (Q.) Sell the 
 land in (|uestion, but t'ot the minerals' lA.) Yes. (O.j These instructions were verbal, 
 were thev not? (A."i Verbal, ves. (Q.i You did not have those instructions formu- 
 lated in any way, and jirinted and posted up in the office, or anv'thing of that kind? (A.) 
 Mot necessary, no. ' 
 
 30 
 
 40 
 
 There is more evidence to the same effect, (pages 96 and 135. 
 Chief Justice found with reference to this part of the case as follows: 
 
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 (Paf^c 169.) The evidence is clear and uncontratlicted that Mr. Trutch's duties, as 
 Commissioner, were limited to the disposal of surface rights according,' to the printed form 
 of conveyance in use by the Company, which form has never been deviated from, and 
 both Mr. Trutch and Mr. Dunsmuir swore that there was no idea in the Plaintiffs case of 
 partinff with anything except surface rights. And he jjroceeds : "There was clearly, 
 then, a mistake on the part of Mr. Trutch, in enterinjj into an afrreement, the lef.;al effect 
 of which is so startlin^l)- at variance with his instructions." 
 
 The Chief Justice refused specific performance on the ground of mistake. Mut he 
 thought that although the mistake shielded the Defendants from specific jJcrforiTiance, it 'o 
 did not disturb the valiilit)- of the contract. He therefore made the decree refusing speci- 
 fic performance as claimed by the Plaintiff, but declaring that the Plaintiff was entitled {(/) 
 to a conveyance containing rescrvatin.is of the minerals and other usual surface reservations 
 imposed by the Company, or (/') a return of all moncj's paid; with interest, plus compensa- 
 tion for improvements, etc. — modelling his decree somewhat after the decree pronounced 
 in Bloomer vs. Spittle, Law Reps., 13 Eq., 427. 
 
 The Plaintiff being dissatisfied appealed. 
 
 The first point to be decided is, upon what evidence are we to ba.se our judgment? 20 
 At the trial the Plaintiffs counsel objected to the reception of, or to the giving of effect to, 
 any evidence of what he called "secret instructions" given to Mr. Trutch, unless it were 
 shown that his client was aware of the nature of the.se instructions (^page 101). His con- 
 tention before us was that the evidence of these instructions to Mr. Trutch was not admiss- 
 ible and that if this evidence were eliminated there would be no evidence of mistake. The 
 case of Chinnock vs Ely (1S65) 4 l)e G J. & .S., 638. cited by the learned Chief Justice 
 in dealing with the question of admissibility' of evidence of the instructions given to the 
 agent seems to have been misunderstood by the Plaintiff's Counsel. In that case there 
 were two distinct points. The first was as to the construction to be placed on a letter writ- ,,j 
 ten by the Defendants' Solicitors: " We arc instructed to proceed with the sale to you of 
 these prcmi.ses, a draft contract is being prepared and will be forwarded." 
 
 It was to this stipulation for a formal contract that the cases of Rossiter vs. Miller, 
 L. R. J App. Cas 1124, and Winn vs. Hull, L. R. 7, Ch. D. 29, cited before us, referred. 
 
 The other part of the case was this, the Marchioness had purchased a house under 
 such very special conditions of sale that it was impossible for her to .sell again with safety 
 unless she sold subject to the same or similar stipulations under which she had purchasedi 
 accordingly when she became desirous of selling she instructed her Solicitors, Messrs. Lcth- 
 bridgc & Mackrell, to sell the same for ii^lO,000. subject to the same stipulations and coi--^" 
 ditions under which she had purchased the same. 
 
 The giving of these instructions to Messrs, Lethbridge & Mackrell, and the admission 
 thereof as evidence to resist specific performance, were the points which the learned Chief 
 Justice had in his mind when he cited this case, and 1 think with him that Chinnock \ s. 
 Ely at once dispo.ses of Plaintiff's objection to the reception of evidence of this character. 
 
 The question (•( admissibility of this evidence is \ cry fulK' covered in the cases cited 
 in the notes to Section i 140 of Taylor on Evidence, 9th edition. 
 
>H3 
 
 If ail)' later authority is necessary to tiisimsc of this qucstio i it can be found in Wild- 
 ing vs. Sanderson (1H97) 2 fh. 5^4, where on an application to set aside a consent order 
 on the grouml of niistake of the I'laiiitiffs counsel, Hyrne, J.: gave effect to the cvideiicc 
 of the Managing Clerk who had instructed counsel, to the evidence of counsel and of the 
 Plaintiff. 
 
 The evidence shows clearly that the Company never contemplated a sale of minerals, 
 and in my o])inion sufficient evidence was adduced to justifj- the conclusion arrived at t)y 
 the learned Chief Justice that Mr Trutch never contemplated t'lat he was selling or agree- 
 ing to sell anything but the surface and that subject to the surface reservations, i)age 102. "' 
 Hut as in Tuy view of the case it iii unimportant to decide whether the finding of the Chief 
 Justice as to surface reservations was sustained b\- the evidence or not, I shall not follow 
 up the subject of surface reservations an>' further. 
 
 From my point of view it is only necessiry to arrive at the conclusion that Mr. 
 Trutch in dealing with the I'laintiff wiis addressing his mind to the sale of the surface only 
 — and not to the mineral.s thereunder. 
 
 I'-vidence of the Defendant's instructions being admitted, it is established (we are all 
 agreed upon this) that Mr. 'I'rutch upon the one hand uas not authorized, and that he 20 
 never could have intended to enter into any contract for the sale of land </ nir/o iist/iir tui 
 re III rum. 
 
 The Plaintiff, on the other hand, was bargaim'ng (see page 26 of Appeal Hook) 
 " for the land and all that was on it and under it." 
 
 In the case of McDonell vs. McDonell (1874) 21 Grant 342 — an action for specific 
 performance resisted on the ground of mistake -lilake V. C. at page 345 points out that 
 the difficulty in these cases is not to apply the law pertinent to them, but to ascertain 
 whether as a matter of fact a misapprehension did exist in the mind of the Defendant 
 under which he entered into an agreement which would not have been otherwise concluded ^ 
 by him; and that the utmost caution must be exercised in distinguishing between a case 
 where an actual misunderstanding or misa|)pichension docs exi.st, and one where the De- 
 fendant simply rueing his bargain seeks to prevent a decree for the (jerformance of the 
 contract being pronounced again.st him — I am fully sensible of the wistlom of those re- 
 marks and after giving them tlue weight have arrived at the conclusion that there was here 
 an actual misumlenstanding or misapprehension on the part of Mr. Trutch as to the nature 
 o<" the estate he was agreeing to sell. 
 
 How the misunderstanding of the word " land " arose, can cisily be understood in 40 
 this ';3untry where land is frequently granted without the minerals or timber, and it is 
 uortii noticing that notwithstaniling the Plaintiff has — to the knowledge of the Defendants 
 sc(; page 142 — brought this action based on the misuse of that word, the word was used at 
 the trial, again and again, by the Defendant's officers in its limited sense. 
 
 Where the Court is satisfied that such an actual misunderstanding or misai)prehension 
 exists it is against conscience for a Court of I'^quity to aid the Plaintiff, by enforcing 
 specific performance — see Wycombe Railway Co. vs. Donnington, L. R. i, Ch. 268. and 
 other cases cited by Hlake V. C. in McDonell vs. McDonell. 
 

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 184 
 
 Sec also Omnium Securities Co. vs. Richardson (1884) 7 Ont. 182 where specific per- 
 formance of a contract was refused as the parties differed in their understanding of it, and 
 Fry on specific performance Sec. 752, Edition of 1802. 
 
 In Paget vs. Marshall (1885) L.R. 28 Ch. Div. 255. wc find a unilateral mistake is 
 stated to be a mistake of this kind, i.e., where th> true intention of one of the parties is to 
 do one thing and he by mistake has signed an agreement tn do another — in such a case the 
 agreement will not be enforced against him, but the parties will be restored to their 
 original position and the agreement will be treated as if it had never been entered into. 
 
 From the same case a definition of a common mistake can be gathered, i. c., where 
 two persons have really agreed to one and the same thing (that is they are ad idem), but 
 in endeavoring to set down their agreement in writing have set down another thing, and 
 executed the agreement on that wrong footing, that is a common mistake and the Court 
 will in such a case rectify the deed. 
 
 In my opinion the mistake in this agreement falls within the class called unilateral 
 mistake and the only part of the judgment appealed from in which I do not agree with, is 
 that portion which gave the Plaintifl an option to take a conveyance as if the agreement 
 had been rectified. 20 
 
 In Hickman vs. Berens (1895), 2 Ch. 638, we have an instance of mi.stake. There 
 the mistake wa.s that of Counsel consenting to a compromise, but it seems to me in ascer- 
 taining the principle upon which the Court should now proceed, it makes no difference 
 whether the mistake was of Couusel or of any other kind of agent. There as here, the 
 written agreement contained all that one party to the action desired. 
 
 As the judgment of Rigby L.J., so accurately and so concisely expres.ses my views 
 of this case, I adapt his language to the action before us. If this were an attempt to get 
 rid of a sale because it turned out to be onerous to the Defendant, I think it ought not to 
 be entertained, or at any rate it ought not to succeed. But I do not look at the case in ^° 
 that light at all. I consider that the Defendant's agent, in signing the document of 28th 
 November, 1889, had not present to his mind that it was int' nded to cover the sale of 
 land usque cut ceiUrnm, but that he thought and intended to deal with the land in the 
 limited sense used in the Land Department of the Company. 
 
 1, If that was the real state of his mind — and I am satisfied that it was — then the agree 
 Tnent was thought by the Plaintiff to be more extensive than the Defendants intended it to 
 be, that is to say they were not agreed upon the subject matter. 
 
 In that case I conceive it is right, that the agreement of 28th November, 1889,40 
 should be dealt with as if it never existed. 
 
 In my opinion there can be no rectification of this agreement, and the course pursued 
 in Olley vs. Fisher 34 Ch. D. 367, is not applicable. 
 
 For the above reasons I think the decree pronounced by the learned Chief Justice 
 gave the Plaintiff more than he was entitled to. 
 
 Mr. McPhillips wanted us to decide this case upon the line of law adopted by Lord 
 Romilly in Powell vs. Smith (1872), L. R. 14 Eq. 85 — viz., that it is not a question of 
 
i85 
 
 20 
 
 mistake, but a question upon the construction of the agreement, agreed to by evcrybo;Iy 
 concernetl. But that is not the whole question, there is something back of that, a mistake 
 as to the meaning of the words used, may be accompanied by another mistake, i. t., a fun- 
 damental mistake as to the subject matter dealt with by the contract. 
 
 The Defendants to an action for specific performance might set up two defences: 
 
 1 . That the words of the agreement would not bear the meaning contended for. 
 
 2. Even if it were held that the words bbre the meaning for which the Plaintiff con- 
 tended, then in that case the Defendant never addressed his mind to the subject matter the 10 
 "laintiff had in contemplation. The two actions out of which the appeals 'Stewart vs. 
 Kennedy) arose, illustrate what I have in my mind, viz., the difference between nt) a mis- 
 take between the words used in drawing up the agreement and {/>) a mistake as to the sub- 
 ject matter of the contract, 
 
 Hickman vs. Tierens, already mentioned, is another instance. That was an applica- 
 tion for relief on the ground of mistake, and, as e.xplained. in Wilding vs. Sanderson i 1 897), 
 2 Ch. 534, there was the two-fold mistake I have mentioned; a mistake as to the mean- 
 ing of the words used, nccompanied by another mistake as to the subject matter dealt with 
 by the contract. 
 
 As I have said, Mr. McPhillips wants us to decide this case on the onstruction of 
 the Exhibits, that is he wants to confine us to the first of the two defences I have alluded 
 to. Should we select his point of view we would shut out the second defence which, 
 according to my opinion, is the real ground of defence, namely, that there never was an 
 agreement in respect of the subject matter with which they were dealing Mr. Trutch 
 could not sell the land (in the full legal sense of that word) — the Defendant wanted that 
 and nothing else. There being no agreement on this fundamental f>oint, there was no 
 contract — there can be no contract unless the parties are ad idem. I rest my judgment on 
 the single point, that the parties were never vd idem, and on the principles enunciated in 
 Wilding vs Sanderson (1897)2 Ch. 534, Hickman vs. Berens (1895 , 2 Ch. 638; and Mc- 
 Donell vs. McDonell, 21 Granv 542. 
 
 Specific performance being impof, ible (in this case, by reason of the absence of con- 
 census), there can be no damages. Lt ^npare in re Northumberland Avenue Hotel Com- 
 pany ( 1 8861. 33 Ch. Div. 16, and Lavery vs. Pursell (i888j, 39 Ch. Div. 508. All we 
 can do is to ^ee that the parties are restored to their original position, as if the agreement 
 had never been entered into Unle.ss, of course, the Defendant consents to a rectification. 
 See Paget vs. Marshall (1885), 28 Ch. D. 255. ^o 
 
 As to the so-called ratificrtion by the Company, the ts of the Defendants 
 constituting the so-called ratification were acts proceeding on the erroneous assump 
 tion that they, the Defendants, had, in fact, made a contract with the Plaintiff, and can 
 stand on no higher ground than the original agreement See Dibbins v.s. Dibbins 
 (1896), 2 Ch. 348; Marsh vs. Joseph (1897), i Ch. 246, and in re .Northumberland 
 Avenue Hotel Company, L.R. 33, Ch. D. 16. 
 
 As to the Defendant's laches, Mr. McPhillips contends that as the Plaintiffs returned 
 the Company's deed on the 9th May, 1 896, as not acceptable to him, and that as the 
 
 30 
 
i86 
 
 Company retained the purchase money until the 9th September, 1896, the Company 
 thereby lost its right to set up this defence. In considerinfj this point there are two cir- 
 cumstances to t)e regarded, the length of the delay and the nature of the acts done during 
 the interval which might aflect either party, and cause a balance of justice or injustice in 
 taking one course or the other so far as it relates to remedy. See Rouchefoi'c^ld vs. 
 Roustead (1897), i Ch. 211. 
 
 It is not only time, but the conduct of the parties to be considered, and as there is 
 nothing to show that the Plaintiffs position was in any way altered, I do not think the 
 holding by the Defendants of the purchase money for four months should deprive them of ^o 
 tnis defence. 
 
 The delay of four months is ea.sy to account for, when we remember that the Plain- 
 tifTs Solicitor, did not in the correspondence call the Company's attention to the fact that 
 the Plaintiff claimed the minerals, but merely objected to the " reservations." The Com- 
 pany's officers, according to my view of the ciise, would regard as objections to surface 
 reservations. 
 
 In my opinion the judgment appealed from should be varied by striking out that por- 
 tion under which the Plaintiff is entitled to an option to a conveyance of the land subject 20 
 to minerals and surface reservations. 
 
 But I do not think that the Plaintiff, because he has succeeded in showing that the 
 judgment gave him something more than he is entitled to, ought to have the costs of this 
 appeal. 
 
 ORDKR FOR JUDGME.VT OF FULL COURT. 
 
 Thursday, the lOth day of March, 189S. ^q 
 
 Upon motion by way of appeal on the 18th and 19th days of Janu.iry, 1898, made 
 unto this Court by counsel for the plaintiff (appellant) from t ? decree in this action dated 
 the 19th day of June, 1897, and upon hearing Mr. A. E. ^ cPhillips of counsel for the 
 p'aintiff (appellant) and Mr. C. E. Pooley, Q. C , of counsel for the defendants (respond- 
 ents), and upon reading the api)cal book herein. Tills COURT Dll) Okder that the said 
 appeal should stand for judgment and the same standing this day for judgment in the 
 presence of counsel en both sides Tins COURT DOTH Order that the uaid decree 
 dated the 19th day of June, 1897, be varied by striking out therefrom so much thereof as 
 lirects " that the plaintiff shall be entitled to receive at his option the conveyance of lot 6, 4° 
 Poiiglas District, as tendered by the defendants to the plaintiff as set out in paragraph 8 
 of ihc plaintiffs statement of claim in which case this action shall be dismissed without 
 costs.' Ani> It Is OkDEREi) that instead thereof " that the plaintiff shall be entitled 
 to receive at his option a conveyance in fee simple in possession free from incumbrances of 
 Al.L that parcel of land more particularly described as follows: All that piece or parcel 
 of land situated in the District of Douglas, Vancouver's Island, in the Province of British 
 Columbia, and upon the official map of the said District known and numbered as Lot 6, 
 Douglas District aforesaid, and \\ hich said piece or parcel of land is said to contain one 
 
i87 
 
 hundred and sixty acres, more or less, with an exception and reservation to tlic defendants 
 and their assigns of all coal, coal oil, ores, mines, minerals, and quarries whatsoever, in or 
 under the land thereby granted or expressed so to be, with full liberty of ingress, egress 
 and regress at all time for the said Company, their successors and assigns, and their ser- 
 vants, agents, and workmen, in, to and upon the said land, and either with or without 
 railways, horses, or other cattle, carts and wagons and other carriages, for the purpose of 
 searching for, working, getting and carrying away the said coal, coal »il, ores, mines, 
 minerals and quarries, and with full liberty also for the said Company, and their assigns, 
 and their servants, agents and workmen to sink, drive, make and use pits, shafts, drifts, lo 
 adits, courses and water courses, and to erect, and set up fire and other engines, machinery 
 and works, and to open roads in, upon, under and over the said land, or any part or parts 
 thereof for the purposes of more conveniently working and carrying away the said min- 
 erals and produce of the mines and quarries, and the Company, or their assigns, paying 
 r( asonable compensation for such of the surface of the said land as may be taken, dam- 
 aged or injuriously affected by the works aforesaid, or any of them in w hich case the 
 action is to stand dismissed without costs.'' And It Is Ordered that with this varia- 
 tion the said decree dated the 19th day of June, 1897, be affirmed: And It Is 
 Further Ordered that there be no costs of this appeal to either party. jq 
 
 By the Court, 
 
 |i. s.] _ (Sgd.) B. H. TYRWHITT DRAKE, 
 
 Registrar. 
 
 NOTICK OF APPEAL TO SUPREME COURT OF CANADA. 
 
 Take notice that Frank Vicker Hobbs, the above named Plaintiff, hereby ap|x;als 
 to the Supreme Court of Canada from the Judgment pronounced in this cause by this 
 Court, sitting as a Full Court, on the lOth day of March, 1898. ^° 
 
 Dated this 28th day of March, 1898. 
 
 C. C. PEMBERTON, 
 
 PlaintiflTs (Apellant's) Solicitor. 
 
 To C. E. Poolev, Esq., 
 
 Defendants' (Respondents') Solicitor. 
 
 BOND FOR SECURITY FOR COSTS. 
 
 Know all Men by these Presents, that we, Frank Vicker Hobbs, of the City of Vic- 
 toria, in the Province of British Columbia, Furniture Dealer; Edwin Hobbs, of the said 
 City of Victoria, Rancher; and Thomas Kidd, of Lulu Island, in the said Province, Mem- 
 ber of the Provincial Parliament, are jointly and severally held and firmly bound unto the 
 Esquimau & Nanaimo Railway Company in the penal sum of $500.00, for which pay- 
 ment well and truly be made we bind ourselves and each of us by himself, our and each 
 of our heirs, executors and administrators firmly by these presents. 
 
 40 
 
1 88 
 
 Dated this 1 5th (lay of April. A D. 1898. 
 
 Whereas a certain action was brought in the Supreme Court of Hrtish Columbia by 
 the saiti I-'rank Vicker Hobbs, I'laintifT. against the said The Esciuimalt & Nanaiino Railway 
 Company, Defendants. And whereas Judgment was given in the said ('ourt, against the 
 said Frank Vicker Hobbs. who appcale<l from the s,-id Judgment to the Full Court, being 
 the Court of Appeal for British Columbia. 
 
 And whereas Judgment was given in the said action in the said la.st mentioned Court 
 on the loth Hay of March, A D. 189S. i^^ 
 
 And whereas the said Frank Vicker Kobbs complaifis that in giving the last nien 
 tioncd Judgment in the said action upon the said appeal manifest error hath intervened 
 wherefore the said Frank X'icker Hohb- liesircs to appeal from the said Judgment of the 
 Full Court of British Columbia to the Supreme Court of Canada. 
 
 Now the condition of this obligation is such, that if the said Frank Vicker Hol)bs 
 shall cfTcctually prosecute his said ap|x;4l and pay such costs and damages as may Ijc 
 awarded against him by the Supreme Court of Canada, then this obligation shall be votJ. 
 otherwise to remain in full force and effect 
 
 (Sgd.) FRANK V. HOBBS 
 
 (Sgd.) EDWIN HOBBS. 
 
 fSgd.) THOMAS KIDD. 
 
 Signed, .sealed and delivered in the presence of 
 
 AI.FRKD C. ANDERSON, 
 
 Student at Law, Victoria, B. C 
 
 (L. S.) 
 IL, S.] 
 [L. S.l 
 
 to 
 
 ORDER APPROVING SECURITY AND ALLOWING APPEAL. 
 
 30 
 
 Fkidav, the 6th day of May, A. I). 1898. 
 
 Upon the application of the Plaintiff, and upon hearing the Solicitors for the Plaintiff 
 and Defendants respectively, and upon rending the notice of ap;xral to the Supreme Court 
 of Canada, dated the 28th day of March, 1898, and the bond, dated the 15th day of April, 
 1 898, and filed herein on the 3rd day of May, by the Plaintiff, as security for the Defend- 
 ants' cost of appeal to the Supren:e Court of Canada, and the affic!.ivits of justification of 
 Edwin Hobbs and Thomas Kidd, the sureties in the said bond mentioned, sworn on the 
 15th day of April, 1898, and duly filed. 40 
 
 It is ordered that the case on appeal to the Supreme Court of Canada contain the fol- 
 lowing matter, namely: A true copy of everything contained in the Ap|}cal Book used 
 on the appeal of the Pla' '"^ to the Full Court, and true copies of the reasons for Judgment 
 of the several Judges who rendered Judgments in the Full Court herein, the order of the 
 Full Court, dated the loth day of March, 1898, the notice of appeal to the Supreme Court 
 of Canada, dated the 28th day of March, 1898, bond for security of costs filed herem, 
 dated the 15th day of April, 1898, and this order settling case, approving security and 
 allowing appeal. 
 
i89 
 
 Anil it is further ordered that the said Imnd be deemed good and siiflRcierit seciirit)' 
 lor the Defendants' costs of appeal to the Supreme Court of Canada, and the .-iaiil appeal 
 \)c allowed. 
 
 M W. TVRVVHITT DKAKK, J. 
 
 ORDKR EXTENDING TIME l(J I-ILE CASE ON APPEAL. 
 IN THE :5UI'REME COURT OF CANADA. 
 
 lO 
 
 Thursday, tiih zni) D.w ok Junk. i8g«. 
 
 BEFORE THE REGISTRAR, IN CHAMHERS 
 
 (Sts'LK ok Causk.) 
 
 Upon the application of fhc Appellant .ind upon reading the consent of the Respond- 20 
 cnts' Solicitors, and the affidavil of Chartres Cecil Pcmberton, filed herein this day. 
 
 It is orderctl that the time for filing the Case in Appeal be extended up to and inclu- 
 sive of the fifth day of July, 1898. 
 
 C. H. MASTERS, 
 Ent'd Fol. 499, No. 2, J. I.. Acting Registrar. 
 
 ORDER FURTHER E.XTENDING TIME TO FILE CASE ON APPEAL. .V 
 
 IN THE SUPREME COURT OF CANADA. 
 
 Thursday, the 30TH D.\y ok June, A. D. 1898. 
 
 BEFORE IHE HONOURABLE MR. JUSTICE TASCHEREAU, IN 
 
 CHAMBERS. 40 
 
 (Style ok Cause.) 
 
 Upon the application of the Appellant and upon reading the consent of the Agents 
 for the Respondents, and upon hearing Counsel for the Appellant. 
 
 It is ordered that the time for filing the Case in .Apjieal herein, be extended up to and 
 inclusive of the twentieth day of July, 1898. 
 
 H. E. TASCHEREAU, 
 Ent'd No. 3, Fol. 4, J. L. J. S C. 
 
igo 
 
 Exhibits Produced at Trial. 
 
 EXHIBIT "A." 
 
 FACTS ADMITTED BY THE DEFENDANTS. 
 
 lO 
 
 The Defendants in this cause for the purpose of this cause only, hereby admit the 
 several facts respectively hereunder specified, subject to the qualifications or limitations, if 
 any, hereunder specified, saving all just exceptions to the admissibility of such facts, or 
 any of them, as evidence in this cause; provided that this admission is made for the pur- 
 pose of this action only, and is not an admission to be used against the Defendants on any 
 other occasion, or by any one other than the Plaintiff. 
 
 FACTS ADMITTED. 
 
 1 . 1 hat the Defendant Company are carrying on mining operations in the neigh- 
 bouriiood of the lands claimed by the Plaintiff. 
 
 2. That the Defendant Company have run a tunnel under the said lands. 
 
 3. 1 hat the Defendant Company is mining for coal under the said lands. 
 Delivered this nth day of June, 1897. by 
 
 CHARLES E. POOLEY, 
 
 Of the firm of Davie Pooley & Luxton, 
 
 Solicitors for the Defendants. 
 To C. C. Pemberton, Esq., 
 
 Solic'' "or the Plaintiff. 
 
 20 
 
 30 
 
 EXHIBIT "B." 
 (Referred to as E.xhibit " A " in Examination Evidence Before Trial.) 
 
 DESCRIPTION OF LAND OF PLAINTIFF. 
 
 40 
 
 28th November, 1889. 
 Tl'.e description ol a piece of land I wish to pre-empt or purchase: 
 A piece of dry land and swamp situated in or about two miles west of Stark's place, 
 llarcwood Lake, Cranberry District, commencing at the top of a ridge, running west to 
 
'91 
 
 Berkeley's Creek, thence south down Berkeley's Creek to a corner post at a swamp, then 
 east, then north to the top of the ridge at the place of commencement. 
 
 It is on or about two miies west of Lower Hayward Lake and about a mile or a mile 
 and a half or two miles from Don&hue's claim, and contains on or about i6o acres, it was 
 formerly claimed by Mr. Stamp. 
 
 (Sgd.) FRANK VICKER HOBBS. 
 
 10 
 
 EXHIBIT "C." 
 (Referred to as Exhibit "B" in Examination Evidence Before Trial.) 
 
 AGREEMENT BETWEEN PLAINTIFF AND DEFENDANTS ON 28TH 
 
 NOVEMBER, 1889. 
 
 20 
 
 ESQUIMALT & NANAIMO RAILW \Y CO.— LAND DEPARTMENT. 
 
 Victoria, B. C, November 28th, 1889. 
 
 Received of Frank Vicker Hobbs the sum of one hundred and twenty dollars 
 ($120.00), being a first payment on account of his purchase from the E. & N. R)-. Com- 
 pany of one hundred and sixty (160) acres of land in Bright District, at the price of three 
 dollars ($3 00) an acre. Commencing at a point abou: two (2) miles west of Louis Stark's 
 Crown Grant in Cranberry District, thence running west 40 chains to Berkeley Creek, 
 thence south 40 chains, thence east 40 chains, thence north 40 chains to place of com- 
 mencement; the balance of jjurchase money to be paid in three equal instalments of 
 seventy-five (75) cents an acre at the expiration of one, two and three years from date, 3° 
 withintcrest at the rate of 6 per cent, per annum. 
 
 (Sgd.) JOHN TRUTCH, 
 
 Land Comm'r. 
 
 EXHIBIT "D." 
 (Referred to as Exhibit "C " in Examination Evidence Before Trial.) 
 
 40 
 
 LETTER FROM PLAINTIFF TO DEFENDANTS, DATED 4TH APRIL, 1892. 
 
 Nanaimo, B C, 4th April, 1892. 
 To THE E. & N. Railway Co.'s Land Agent: 
 
 Dear Sir- — As I am about to survey the piece of land recorded by me on the 28th 
 November, 1889, I wish to know who is your surveyor in this district 1 am all alone out 
 
I J 
 
192 
 
 in that part and I do not know where the nearest corner post is, it is certainly a very long 
 way from my claim and I can only survey from my post, about two miles from Louis Stark's 
 Crown Grant; I have already paid $120,00 on it and I am anxious to survey and com- 
 plete the purchase, so an early reply would greatly oblige. 
 
 Yours faithfully, 
 
 (Sgd.) FRANK VICKKR HOBBS, 
 
 Saw Mill, Nanaimo.* B. C. 
 
 10 
 
 EXHIBIT "E." 
 (Referred to as Exhibit " D " in Examination Evidence Before Trial.) 
 
 LETTER FROM T. S. GORE TO PLAINTIFF, DATED 6th APRIL, 1892. 
 
 20 
 
 ESQUIMALT & NANAIMO RAILWAY CO.— LAND DEPARTMENT. 
 
 Victoria, B. C, 6th April, 1892. 
 
 Mr. Frank Vickkr Hobb;:, Nanaimo: 
 
 Dear Sir:— 1 beg to acknowledge the receipt of your letter, dated the 4th inst, in 
 reference to your ])urchase of land m Douglas District. 
 
 In reply 1 would say that you can employ any Provincial Land Surveyor you wish, 
 probably Mr. Fry, of Duncan's, or Mr. Priest, of Nanaimo, would be the best. 
 
 As near as I can tell from your description of the location of the land in question, the 
 portion coloured red on the enclosed tracing, will include what you describe in your appli- 
 cation. 
 
 In any case the survey will have to be made in such a way as to leave no fractional 
 portions of land between yours and other claims in the neighbourhood. 
 
 Yours truly, 
 
 (Sgd.) T. S GORE, 
 
 Land Comm'r. 
 
 30 
 
 40 
 
 EXHIBIT -'F." 
 (Referred to as Exhibit "K" in Examination Evidence Before Trial ) 
 
 PLAN ENCLOSED IN LETTER FROM T. S. GORE TO PLANTIFE 
 
I 
 
 I 
 1 
 
 N 
 
 yf 
 
193 , ■ 
 EXHIBIT "G." 
 (Referred to as Fxhibit " G" in Examination Evidence before Trial.) 
 
 NOTICE OF INSTALMENTS FROM T. S. GORE TO PLAINTIFF, DATED 
 
 JUNE, 1893. 
 
 ESQUIMALT & NANAIMO RAILWAY COMPANY— LAND DEPARTMENT. 
 
 ViCTOKiA, H. C, June. 1893. 
 
 10 
 
 NOTICE. 
 
 Sir: — The second, third and fourth instalments, together with interest amounting to 
 $424.80 is due upon your purchase from the Esquimalt & Nanaimo Railway Company of 
 Lot 6, Bright Dist. 
 
 You are requested to forward the above amount to this office without delay. 
 
 Instalments $360 00 
 
 Three years' interest 64 80 20 
 
 $424 80 
 
 Mr. Frank Vukkr Hobbs, 
 
 Bright District — Victoria. 
 
 I am, Sir, 
 
 Your obetlient servant, 
 
 (Sgd.) T. S. GORE, 
 
 Land Commissioner. 
 
 30 
 
 EXHIBIT "H." 
 
 (Referred to as Exhibit " H " in FZxamination Evidence before Trial.) 
 
 NOTICE OF INSTALMENTS FROM T. S. GORE TO PLAINTIFF, DATED 
 
 ISTH FEBRUARY, 1894 
 
 40 
 
 ESQUIMALT & NANAIMO RAILWAY CO.— LAND DEPARTMENT. 
 
 Victoria, B. C, February, 15th, 1894. 
 NOTICE. 
 
 Sir: — All the instalments together with interest amounting to $446.40 are due upon 
 your purchase from the n,squimall & Nanaimo Railway Comjiany of Lot 6, Bright Dist. 
 
194 
 
 You are requested to forward the above amount to this office without delay. 
 
 I am, sir, your obedient servant, 
 
 , (Sgd.) T. S. GORK, 
 
 Land Commissioner. 
 Mr. Fkank Vicker Hobbs, 
 
 Victoria, 
 
 EXHIBIT " I." 
 (Referred to as Kxhibit " F " in Examination Evidence before Trial. 
 
 10 
 
 SMALL TRACING PREPARED BY MR. SOLLY, HANDED BY HIM TO 
 
 PLAINTIFF. 
 
 EXHIBIT "J." 
 (Referred to as Exhibit " I " in Examination Evidence before Trial.) 
 
 LETTER FROM L. H. SOLLY TO PLAINTIFF, DATED 2Ni) MARCH, 1896. 
 
 ESQUIMALT & NANAIMO RAILWAY CO.— LAND DEPARTMENT. 
 
 Victoria, B. C. March 2nd, 1896. 
 Frank V. Hobbs, E.S(,), 
 
 Victoria, B. C. , 
 
 Dear Sir: — I am instructed to inform you that the Railway Company are now pre 
 pared to issue a conveyance to you of the land you agreed to purchase in Douglas District, 
 providing that within two months fiom this date you have the land surveyed, and the 
 notes sent in to this office, and also pay up the overdue charges on the same, which are as 
 below. Kindly send me a line in reply to say if this arrangement will suit you 
 
 Re purchase of 160 acres in Douglas Di.strict: 
 
 Balance of ircha-sc money $360 00 
 
 Six years' simple interest at 6 per cent 129 60 
 
 Title fee ,0 00 
 
 $499 60 
 Yours truly, 
 
 (Sgd.) LEONARD H. SOLLY, 
 
 Land Commissioner. 
 
 30 
 
 30 
 
 40 
 
.■1^ 
 
 I 
 y 
 
 M 
 
195 
 
 EXHIBIT "K." 
 
 (Referred to as F.xhibit "No. i " in Kxamination Evidence before Trial.) 
 
 LKTTKR FROM I'LAINTIFF TO I.FONARi) H. SOLLY. DATF!) lOTil 
 
 APRIL, 1896. 
 
 185 Douglas St, Victoria, H. C, 10th April, 1896. 
 
 10 
 
 Leonard H. Solly, Esr^.. 
 
 Land Commissioner. 
 
 Dear Sir: — 1 beg to inform you that I have had thcland surveyed in Cranberry and 
 Douglas Districts and expect ere long Mr. Priest will send in the plan and field notes to 
 your office. Will you kindly send me a line after you have received them and say if the 
 survey is acceptable to the Company, so that I may call and complete the purchase. 
 
 Yours truly, 
 
 fSgd.) FRANK VICKKR HOBBS. 20 
 
 til 
 
 f:xhibit -l" 
 
 LKTTKR FROM L. H SOLLY TO PLAINTIFF, DATKD iith APRIL, 1896.30 
 
 KSQUIMALT& NANAIMO RAILWAY COMPANY— LAND DEPARTMENT. 
 
 Victoria, B C, April nth, 1896. 
 
 F'. V. HoBBS, Ks(,), 
 
 Victoria, R C. 
 
 Dear Sir:— 1 am in receipt of your letter of the loth in.st., re survey of your land in 
 Douglas and Cranberry Districts 40 
 
 In reply I beg to inform you that I have received the field notes from Mr. Priest, and 
 that they are quite satisfactory. 
 
 A deed will be at once prepared on receipt of charges, as stated in my letter to you of 
 March 2nd. 
 
 Yours truly, 
 
 (Sgd.) LEONARD H. SOLLY. 
 
 Land Comm'r. 
 
EX HI HIT "M." 
 (Referred to as Kxhihit " No. 3 " in Kxaminatioii Kvklcnce before Trial ) 
 
 LKTTKR FROM I-KONARD H. SOLLY TO PLAINTIFF, DATKP 27TH 
 
 AI'RIL, 1896. 
 
 KSQUIMALT & NANAIMO RAILWAY CO.— LAND DKI'ARTMKNT. 
 
 VlCTOKiA, H. C, April 27th, 1896. 
 
 F. V. HOBBS, KSQ., 
 
 Douglas St. 
 
 Dear Sir: — Just a line to remind you that the two months' extension of time given 
 you to complete the purchase of Lot 6, Douglas District, expires on Saturday next. 
 
 Yours truly, 
 
 (Sgd) LEONARD H. SOLLY, 
 
 I Land Comm'r. 
 
 10 
 
 ao 
 
 KXHIHIT -N." 
 (Referred to as " Exhibit No. 8 " in ICxamination Evidence before Trial. 
 
 30 
 
 LETTER FROM PLAINTIFF TO LEONARD H, SOLLY, DATED 28TII 
 
 APRIL, 1896. 
 
 135 DoutJi.As Strket, Victoria, H. C, 28th April, 1896 
 
 L. H. SoLLV, Esi.i., 
 
 40 
 
 Dkar Sir: — I am in receipt of j'ours of yesterday and herewith I enclose a marked 
 bank cheque for $499.60, in full payment of purchase money for Lot 6. in Douglas and 
 Cranoerry Districts, as per my agreement with Mr. J Trutch, dated 28th November, 1889, 
 in accordance with which, please send me the deed as soon as possible, and oblige, 
 
 Yours truly, 
 
 (Sgd.) FRANK VICKER HOHBS. 
 
197 
 EXHIBIT "O ' 
 
 CHEQUE MADE BY PLAINTIFF IN FAVOR OF DKF;:N1)ANTS, DATED 
 28th APRIL, 1896, ENCLOSED IN EXHIBIT "N." 
 
 10 
 
 No. 27740. Victoria, B, C, 28th April, 1896. 
 
 THE BANK OF BRITISH COLUMBIA. 
 
 VICTORIA, B. C. 
 
 Pay to the E. & N. Railway Co in full 
 
 payment of purchase money for Lot 6, Douglas District, four hundred and ninety-nine 
 and Vyrr dollars, $499.60. 
 
 (Sgd.) FRANK VICKER HOBBS. 
 
 ENDORSEMENT ON BACK OF THE ABOVE CHEQUE. 
 
 For deposit only; Bank of British Columbia, for credit of Esquimalt & Nanaimo 
 
 Railway Co. 20 
 
 R. M. JEFFREY, 
 
 Cashier. 
 
 EXHIBIT "P." 
 (Referred to as Exhibit '' No. 3 " in Examination Evi.ience before Trial.) 
 
 LETTER FROM L. H. SOLLY TO PLAINTIFF, DATED 29111 APRIL, 1896. 
 
 30 
 
 ESQUIMALT & NANAIMO RAILWAY CO.— LAND DEPARTMENT. 
 
 ViCTOKi.x, B. C, April 29th, 1896. 
 
 Fkank Vickkk Houbs, Es(.) , 
 
 135 Douglas District. 
 
 Dkak SlK: — I am in receipt of _\our letter of t!'e 28th Inst, enclosing Cheque for 
 $499.60. in i)ayment of balance of charges on your purchase of Lot 6, Douglas District, 
 as per enclosed receipt. .^ 
 
 Your deed will be prepared at once, and signed as soon as Mr. Dunsmuir returns to 
 Victoria, which will be in about ten days. 
 
 When your deed is issued, I shall require the enclosed receipt, together with your 
 first receipt, returned to this office to be placed on file. 
 
 Yours truly, 
 
 (Sgd.) LEONARD H. SOLLY, 
 
 Land Comm'r. 
 
198 
 
 EXHIBIT "O" 
 (Referred to as Exhibit "No. 4" in Examination Evidence before Trial.) 
 
 RECEIPT FROM DEFENDANTS TO PLAINTIFF FOR BALANCE OF 
 PURCHASE MONEY, VIZ., $49060 DATED 29TII APRIL, 1896. 
 
 ESQUIMALT & NANAIMO RAILWAY CO.— LAND DEPARTMENT. 
 
 10 
 
 RECEIPT. 
 864. 
 
 Received from Frank Vickcr Hobbs, Esq., the sum of four hundred and ninety-nine 
 dollars and y*^, being the Bal., Int. and C. T. Fee, payment on account of his purchase 
 from the E. & N. Ry. Co., of one hundred and sixty acres in Douglas and Cranberry 
 Dists. Description, Lot 6. 
 
 Terms: 
 
 Balance $360 00 
 
 Interest 1 29 60 20 
 
 Title fee 10 00 
 
 $499.60 (Sgd.) LEONARD H. SOLLY, 
 
 Land Commissioner. 
 Victoria, B. C, April 29th, 1896. 
 
 EXHIBIT "R." 
 (Referred to as Exhibit " No. 6" in Examination Evidence before Trial.) 30 
 
 LETTER FROM LEONARD H. SOLLY TO PLAINTIFF, DATED 8th 
 
 MAY, 1896. 
 
 ESQUIMALT & NANAIMO RAILWAY CO. -LAND DEPARTMENT. 
 
 ViCTOKiA, B. C, May 8th, 1896. 
 
 F. V. HoBHs, Es().. 
 
 40 
 Douglas St. 
 
 Dear Sik: — l-'.nclosed please find conveyance in jour favor of Lot 6, Douglas District. 
 
 Kindly sign and return the enclosed receipt for the same, and also return the two re- 
 ceipts given you for payments. 
 
 Yours truly, 
 
 (Sgd.) LEONARD H. SOLLY, 
 . , . . ' Land Comm'r. 
 
VX.S tr! 
 
 ;-ji ■•: tt, 
 
 T' ! it.*. 
 
 'TilV 
 
 .•i,,-.f.. 
 
 ''•I 
 
199 
 
 EXHIBIT "S." 
 
 (Referred to as Exhibit " No. 5 " in Examination Evidence before Trial ) 
 
 MEMORANDUM OF RECEIPT FOR CONVEYANCE OF DEFENDANTS, 
 DATED 1ST MAY, 1896, ENCLOSED IN EXHIBIT " R.' 
 
 ESQUIMALT & NANAIMO RAILWAY CO.— LAND DEPARTMENT. 
 
 VICTORIA. 
 
 Date, May ist. 1896. 
 
 Sir. — The accompanying conveyance Place 
 
 of title in favour of Frank Vicker Hobbs, Date 
 
 Number 302. Lot 6, Douglas, is forwarded Received conveyance No. 302, Lot 6, 
 
 to you for for which his Douglas District 
 
 receipt is requested opposite. 
 
 To To the Land Commissioner of Esqui- 
 
 ., malt & Nanaimo Railway Company. 
 
 10 
 
 20 
 
 EXHIBIT -T." 
 
 FORM OF CONVEYANCE, TENDERED BY DEFENDANT TO PLAINTIFF, 
 DATED I.ST MAY, 1896, ENCLOSED IN LETTER, EXHIBIT " R. ' 
 
 302. •' *■ ■' . 
 
 30 
 This Indenture made this first day of May, A. D. one thousand eight hundred and 
 
 ninety-six, between the Esquimalt & Xanaimo Railway Company of the one part and 
 
 Frank Vicker Hobbs of the other part. 
 
 Witnesseth that in consideration of the sum of four hundred and cighly dollars paid 
 by the said Frank Vicker Hobbs to the said Company, the receipt of which said sum of 
 four hundred and eighty dollars the said Company do hereby and of and from the 
 same and every part thereof, do hereby acquit and release the said Frank Vxker Hobbs, 
 his heirs, executors and administrators. They the said Company do hereby grant and 
 convey unto the said P'rank Vicker Hobbs, his he.rs and assigns, all that piece or parcel of 40 
 land situated in tiic District of Douglas, Vancouver Island, in the Province of British Col 
 umbia, and upon the Official Map of the said district, known and numbered as Lot 6, 
 Douglas District aforesaid, and which said piece or parcel of land is said to contain one 
 hundred and si.xty acres more or less, and is more particularly shown upon the plan or 
 tracing hereunto annexed and thereon coloured red. 
 
 To have and to hold the said land unto and to the use of the said Frank Vicker 
 Hobbs, his heirs and assigns forever, subject nevertheless to the reservations hereinafter 
 mentioned, that is to say: 
 
2CX3 
 
 Saving and reserving to the said Company, their successors and assigns, and their 
 agents, servants, contractors and workmen, the right to enter into and upon the said land, 
 and cut and carry away any timber therefrom fo- railway purposes, without paying com- 
 pensation therefor. 
 
 And saving and reserving also tn the said Company, their successors and assigns, 
 rights of way for their railway througli the said land, and the right for themselves, their 
 rtgents, servants, contractors and workmen to enter upon and take such parts of the said 
 land as may be required for the stations and workshops of the said Company without pay- 
 ing compensation therefor. lo 
 
 And saving and reserving to the said Company, their successors and assigns, all coal, 
 coal oil, ores, mines, minerals, and quarries whatsoever, in, or under the land hereby 
 granted or expressed so to be, with full liberty of ingress, egress and regress at all times 
 for the said Company, their successors and assigns, and their servants, agents and work- 
 men, in, to and upon the said land, and either with or without railways, horses, or other 
 cattle, carts, and wagons and other carriages for the purpose of searching for, working, get- 
 ting and carrying away the said coal, coal oil, ores, mines, minerals and quarries, 
 and with full liberty, also, for the said Company, their successors and assigns, and their 
 servants, agents and workmen, to sink, drive, make and use pits, shafts, drifts, adits, ^° 
 courses and watercourses, and to erect and set up fire and other engir.--s, machinery and 
 works, and to open roads in, upon, under and over the said land, or ai.y part or parts 
 thereof, for the purpose of more conveniently working and carrying away the said mines, 
 minerals and quarries, and also to appropriate and use any part of the surface of the said 
 land for depositing, placing and heaping thereon the minerals, waste, rubbish and other 
 substance which may be gotten from the said mines, minerals and quarries the Company, 
 their successors and assigns, paying reasonable compensation for such of the surface of the 
 said land as may be taken, damaged or destroyed by such searching, working, getting and 
 carrying away. 3^ 
 
 And the said Company do hereby for themselves, their successors and assigns, coven- 
 ant with the said Frank Vicker Hobbs, his heirs and assigns^ that they have the power to 
 grant and convey the said land in manner aforesaid, and that it shall be lawful for the said 
 Frank Vicker Hobbs, his heirs and assigns, to enter upon and hold, occupy and enjoy the 
 said lands for his or their use and benefit, subject to the reservations aforesaid. 
 
 In witness whereof the common seal of the said Company has been hereunto affixed 
 by order of the Board of Directors. 
 
 Sealed by order of the Board of Directors, made at a meeting held the nineteenth day .q 
 of January, 1889. 
 
 (Sgd.) JAMES DUNSMUIR, 
 
 Vice President 
 (Sgd.) Chas. E. Poolev, 
 
 Secretary. 
 
 : Common Seal of : 
 Company. 
 
20I 
 
 acknowlp:dgmkxt. 
 
 I hereby certify that Charles Edward Pooley, personally known to me, appeared be- 
 fore ine and acknowledgid to me that he is the person who subscribed his name to the 
 annexed Instrument, as Secretary of the said Esquimalt & Nanaimo Railway Company, 
 and affixed the seal of the said Esquimalt & N'anaimo Railway Company to the said 
 Instrument, that he was first duly authorized to subscribe his name as aforesaid, and to 
 affix the said seal to the said instrument. 
 
 In testimony whereof, I have hereunto set my hand and seal of office, at Victoria, 
 British Columbia, this eighth day of May, A. D. 1896. ^° 
 
 (Sgdj H. MAURICE HILLS, 
 Seal 
 
 Notary Public, B. C. 
 
 EXHIBIT "U." 
 (Referred to as Exhibit " No. 7 " in Examination Evidence before Trial.) 
 
 LETTER FROM PLAINTIFF TO LEONARD H. SOLLY, DATED 9TH 
 
 MAY, 1896. 
 
 20 
 
 135 Douglas St., Victoria, B. C, 9th May, 1896. 
 
 L, H. Solly, Esq., 
 
 Dear Sir: — I herewith return you the deed you sent me this morning; it is not 
 acceptable to me, being full of reservations. 
 
 When I purchased the land from Mr. J. Trutch (acting for the Company) there wcre^° 
 no reservations either expressed or implied, my original agreement calls for none, and I 
 again demand a clear deed in accordance with that agreement 
 
 I remain, yours truly, 
 
 (Sgd.) F. V. HOBBS. 
 
 EXHIBIT "V." 
 
 40 
 
 LETTER FROM LEONARD H. SOLLY TO PLAINTIFF, DATED srd 
 
 SEPTEMBER, 1896. 
 
 September 3rd, 1896. 
 Frank Vicker Hobbs, Esq., 
 
 Victoria, B. C. 
 
 Dear Sir: — Enclosed please find cheque in your favor for $6ir ' o, being the refund 
 
 I 
 
203 
 
 of all moneys paid by you on the purchase of Lot 6, Douglas Dist., conveyance for which 
 you refused to accept from the Company. 
 
 Yours truly, 
 
 (Sgd.) LKONARD H. SOLLY, 
 
 Land CommV. 
 
 EXHIBIT "W." 
 
 SO 
 
 CHP:QUE of defendants in favour of plaintiff, for $619.60, 
 DATED 3KI) SEPTEMBER. 1896, ENCLOSED IN EXHIBIT "V." 
 
 THE ESQUIMALT & NANAIMO RAILWAY COMPANY. 
 
 Office, Victoria, B. C. VICTORIA, B. C, 3rd Sept., 1896. 
 
 $619.60. g|| 
 
 BANK OF BRITISH COLUMBIA. 
 
 Pay to Mr. Frank Vickcr Hobbs, or order, ($619.60) six hundred and nineteen ^^\ 
 dollars. 
 
 No. 5864. 
 
 (Sgd.) JAS. DUNSMUIR, 
 
 Vice President. 
 (No Endorsement on Same.) 
 
 EXHIBIT "X" 
 
 30 
 
 DEED TENDERED BY PLAINTIFF TO DEFENDANTS, DATED DECEM- 
 BER, 1896. 
 
 This Indenture, made this day of December, \. D. one thousand 
 
 eight hundred and ninety-six. betwet-n the Esquimalt & Nanaimo Railway Company of40 
 the one part and Frank Vickcr Hobbs, of the City of Victoria, in the Province of British 
 Columbia, of the other part; witnesseth that in consideration of the sum of six hundred 
 and nine dollars and sixty cents, paid by the said Frank Vicker Hobbs to the said Com- 
 pany, the receipt of which said sum of six hundred and nine dollars and sixty cents the 
 said Company do herebj' acknowledge, and of and from the same and every part thereof 
 do hereby acquit and release the same Frank Vicker Hobbs, his heirs, executors and 
 administrators, they, the said Company, do hereby grant and convey unto the said Frank 
 Vicker Hobbs, his heirs and assigns, all that piece or parcel of land situate in Douglas and 
 
Cranben 
 District, 
 follows: 
 northcas 
 north 40 
 or less, t 
 less, tog( 
 inents ai 
 part ther 
 property 
 have anc 
 use of tl 
 limitatio 
 
 III y 
 by oriler 
 
 Sea 
 day of. . 
 
 FIEL 
 
 OFFICI 
 
io3 
 
 Cranberry Districts, Vancouver Island, in tlv.' said Province, being part of Lot 6, Douglas 
 District, and Lots lo and ir. Cranberry District, and more particularly liescribeii as 
 follovvti: Commencing at a post situate 20 chains due north and 3 chains due west of the 
 northeast corner post of Lot 3, Douglas District, thence due east 40 chains, thence due 
 north 40 chains, thence due west 40 chains, thence due south 40 chains and 23 links, more 
 or less, to the place of commencement, containing by admeasurement 160 acres more or 
 less, together with all buildings, fixtures, commons, ways, profit-, privileges, rights, ease- 
 ments and appurtenances to the saiil hereditaments belonging or with the same or any 
 part thereof held or enjoyed or appurtenant thereto, and all the estate, right, title, interest, 10 
 property, claim and demand of the said Company in, to or upon the said prerriises. To 
 have and to hold all the said premises expressed to be hereby granted untj and to the 
 use of the saiil Frank Vickcr Hobbs forever; subject, nevertheless, to the reservations, 
 limitations, provisos and conditions expressed in the original grant thereof from the Crown. 
 
 In witness whereof the coii^mon seal of the said Company has been hereunto affixed 
 by order of the Board of Diicci.ns, 
 
 Sealed by Order of the Board of Directors, made at a meeting held the 
 
 day of 18. . 
 
 ao 
 
 KXHIBIT "Y." 
 
 FIELD NOTES MADE BY MR K. PRIEST, PROVINCIAL LAND SUR- 
 VEYOR OF THE LAND CLAIMED BY PLAINTIFF. 
 
 EXHIBIT "Z." 
 
 30 
 
 FLAN PREPARED BY MR. WILLIAM G. PINDER. 
 
 EXHIBIT " NO. I." 
 
 40 
 
 OFFICIAL MAP OF CRANBERRY DISTRICT, 1859, OF DEFENDANTS. 
 
 EXHIBIT "NO. 2." 
 
 DEFENDANTS' REGISTER OF DOUGLAS DISTRICT. 
 
204 
 
 EXHIBIT "NO. 3 
 
 PLAN OF DOUGLAS DISTRICT OF DEFENDANTS. 
 
 EXHIBIT "NO. 4.' 
 
 CORRKSFONDENCK BETWEEN HUNTER & DUFF, ACTING FOR THE 10 
 PLAINTIFF, AND THE DEFENDANTS. 
 
 LETTER FROM HUNTER & DUFF TO DEFENDANTS, DATED 9TH 
 
 DECEMBER, ^895 
 
 ViCTORi.A, B. C, 9th Dee .nber, 1895. 
 TnK Land Commi.s.sioner E. & N. Railway Co.. 
 Victoria. 
 
 Dear Sir:— We have been instructed by Mr Frank Vicker Hobbs to take proceed- 
 ings to obtain specific perforrrancc of an agreement between Mr. Hobbs and the E. & N. 
 Railway Company for the purchase and sale of 160 acres of land in the Bright District 
 described as follows: Con'mencint,' at a point about two (2) miles west of Louis Stark's 
 Crown Grant in Cranberry District, thence running we.st 40 chains to Bcrkele>' Creek, 
 thence south 40 chains, thence east 40 chains, thence north 40 chains, to place of com- 
 mencement. 
 
 We are instructed by Mr. Hobbs that he a short time ago tendered to you the balance 
 of the purchase money under his agreement and that you declin'id to accept the same. 
 Will you kindly state to us whether the Company is willing to waive formal tender of the 
 balance of the purcnase money and a tender of conveyance of the land, and if not would 
 you kindly mention the time that would be convenient to yourself and the President of the 
 Company to receive tender of same. An early reply will oblige. 
 
 Yours truly, 
 
 (Sgd.) HUNTER & DUFF. 
 
 LETTER FROM LEONARD H. SOLLY TO HUNTER & DUFF, DATED 
 
 lOTll DECEMBER, 1895. 
 
 December lOth, 1895. 
 Messrs. Hunter & Duff. 
 
 Victoria, B. C. 
 
 Dear Sirs:— I am in receipt of your letter of the 9th inst., re Mr. F. V. Hobbs and 
 land claimed by him in Bright District. In repl>- I beg to inform you that the Vice 
 
 20 
 
 3C 
 
 40 
 
205 
 
 President, Mr. Dunsmuir, is at present absent from Victoria and will no^ return before the 
 end of the week, but that as I think it possible that n tender of the bala.^e of the purchase 
 money might now be accepted, 1 shall be obliged if you will allow the matter to rest till 
 his return, when I will at once communicate to you his decision. 
 
 Yours truly, 
 
 . (Sgd.) LKONARD H. SOLLY, 
 
 Land Comm'r. 
 
 lO 
 
 LETTER FROM LEONARD H. SOLLY TO HUNTER & DUFF, DATED 
 
 I2TH DECEMBER, 1895. 
 
 Dkau Sik.S: — I am instructed to inform you that the Esquimalt & Nanaiino Ry. Co. are 
 prepared to refund Mr. Frank Vicker Hobbs $120.00, paid by him as a first payment on 
 account of his purchase of 160 acres of land in Bright District, on November 28th, 1889, 
 but that as Mr. Hobbs neither paid his instalments or interest as they became due, they 
 are not prepared to accept the balance of the purchase money and issue a conveyance to 
 the land. 
 
 Yours truly, 
 
 (Sgd.) LEONARD H. SOLLY, 
 
 Land Comm'r. 
 
 P. S. : — Quite willing to waive formal tender of balance, &c. 
 
 L. H. S. 
 
 30 
 
 LETTER 
 
 FROM HUNTER & DUFF TO LEONARD H. SOLLY. DATED 
 23RI) DECEMBER, 1895. 
 
 Victoria, B. C, 23rd December, 1895. 
 L. H. SoLLV, Es(j., 
 
 Land Commissioner, 
 
 E. & N. Railway Company, 
 
 Re Hobbs. 
 
 Dear Sir: — We beg to acknowledge the receipt of your favour of the 12th instant, 
 informing us that the Company is prepared to waive formal tender of the balance of ihe 
 purchase money. Will you kindly also .state that you will Hispense with formal tender of 
 conveyance, 
 
 Yours truly, 
 
 (Sgd.) HUNTER & DUFF. 
 
 40 
 
9^ 
 
 LKTTER FROM HUNTER & DUFF TO LF:0NARD H. SOLLY, DATED 
 
 30TH JANUARY, 1896. 
 
 Victoria, H. C , 30th January, 1896. 
 L. H. Solly, Esq., 
 
 Land Commissioner, E. & N. Railway Co., 
 
 Victoria. • 
 
 Re Hobbs. 'o 
 
 Ueak SiR: — We wrote you on the 23rd December last, asking you to state whether 
 the Company was prepared to dispense with formal tender of conveyance herein, to which 
 we have received no reply. Will you please let us hear from you on the matier. 
 
 Yours truly, 
 
 (Sgd.) HUNTER & DUFF, 
 
 LETTER FROM LEONARD H. SOLLY TO HUNTER & DUFF, DATED 20 
 
 31ST JANUARY, 1896. 
 
 January 31st, 1896. 
 MES.SRS. HUNTEK & DUFF, 
 
 Victoria, B. C. 
 
 Re Hobbs. 
 Dear Sirs: — I am in receipt of your letter of the y '.i instant. Your letter of 
 December 23rJ was duly >-eceived by me and placed before Mr. James Dunsmuir, Vice 
 President of the Company, who informed me that I need not repl}- to it, as he was about 
 to place the matter in the hands of the Company's Solicitor, so that I considered the 
 matter out of my hands. 
 
 Mr. Dunsmuir is at present absent from Victoria, but your letter will be placed before 
 him on his return. 
 
 Yours truly, 
 
 (Sgd., LEONARD H. SOLLY. 
 
 30 
 
 LETTER FROM HUNTER & DUFF TO LEONARD H. SOLLY, DATED 4o 
 
 3Kn SEPTEMBER, 1886. 
 
 VlCTCRL\, B. C, 3rd September, 1896. 
 L. H. Solly, Es(^)., 
 
 Land Commissioner, E. & N. Ry. Co., 
 
 Victoria. 
 
 Dear Sir; — Herewith we enclose cheque of the Esquinialt & Nanaimo Railway 
 
ao7 
 
 Company for the sum of $6i(>6o, enclosed b>' you in letter dated to (la>- to Mr. Frank 
 Vicker Hobbs. 
 
 We have to say that Mr. Hobbs has not refused to accept a conveyance from the 
 Company of the land purchased by him from the Company. He has been always willing 
 and is now willing to accept from the Company a conveyance in accordance with his 
 agreement, but he has declined to accept any conveyance of the lands (jurchased contain- 
 ing any reservations or exceptions, which are not provided for in the agreement of purchase. 
 
 Yours Truly. 
 
 (Sgd.) HUNTER & DUFF. 
 
 Deliver. 
 
 lO