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 J?'or (Privaie Oirozolaiion, 
 
 Zl^ 
 
 A 
 
 CORRESPONDENCE 
 BETWEEN- KEER, BROWN i'^MlcltENZIE, 
 
 AND 
 
 BROWN, GILLESPIE & Co. 
 
 1868.— 1870. 
 
4 
 
I 
 
 PREFACE. 
 
 The circumstances under which ihe^ fnii^^r- 
 respondence ha« been held art o 'fX'^^Lted 
 thema^that further exphmations on the .S of 
 the differences between Messrs. Brown, GiUespL & 
 Co. and ourselves, are rendered unnecessary! ^ 
 
 enceV artrbptt". ""'^'P?^ '^^'^^rnstauce when differ- 
 
 aidofj„utualfrL11Tnd*ttT:i^ 
 
 gretted .vhen such differences 'iriso in n^ Ji 
 
 have been heretofore intimate and friendly Wp 
 adkfst'tf ''T^*^' '^^ ''-'^y ■"'^»'- i" ou" pterl 
 
 rSeS^'^Sr^^^^^^ "^ V. *^° 
 
 succeeded in c!oin7so 'with 'w f , ,f fu''^ ^"■'"' 
 pondence too pain'f^^ ^^tl^J^ W 'siTn^t" 
 have felt ourselves justified in engaging VAlicatten 
 tion m our disputes, from no higher motivfthantW 
 
 Iduci ofTh "•'l-"^ ^''"^ ^ betheunSmaS 
 conduct of the parties at issue with us- and hid tba 
 
 subject been restricted to the recovery or loss of » 
 sum of money, to which we entertained no doubt 
 that we were entitled, we should have been contented 
 tt'StTf of' -^"'-^ - P-ent'S:alYo 
 
 Messrs. Brown, Gillespie & Co. stand pledged to 
 
 ot^ld aMouT""* '" ^'^P"*''' -o4 their ce,i^ 
 ors, and although we cannot believe that it was their 
 
intention to have done so in the first instance, or that 
 the settlement which they effected witli their credit- 
 ors, renders it at this time needful to divide an 
 amount, which will be in some instances almost nom- 
 inal, yet we can take no exception to this course ; it 
 was for this purpose that we relinquished the amount, 
 and it was only because we believed that Messrs. B.' 
 G. & Co. could not justly retain it, that we made our 
 claim upon them. But the dispute, as we have said 
 in our last letter to them, has unfortunately become 
 no longer a question of money, and it is because our 
 personal honor has been assailed, and because we 
 desire to meet this charge unreservedly, and believe 
 that the perusal of our correspondence will fully vindi- 
 cate^ us in the public estimation ; it is from these 
 motives, and from these alone, that we reluctantly 
 bring the controversy under the notice of our friends, 
 by the publication of the correspondence. 
 
 KEER, BROWN & MACKENZIE. 
 
 -r 
 
Tn view of the circumstunces under which our 
 hMity upon Messrs. Brown, Gillespie & Go's, paper 
 i'^^ ouTs^Jl^T^' ''' ^f ourselves justified in avail' 
 wlnVWl f "^""^ ^'-'^ "^^'""''^ to avoid the loss 
 
 Zlnil^I T7 l'\r^ '^ ^^' ^^''^' of Montreal 
 were the bona fide holders of the note for$10,155 we 
 
 consulted our Solieitors and others, including B G 
 & Co upon the advisability of endeavoring to induce 
 t^ie then holders to rank on the estate of B, G. & Co 
 The reply of our Solicitors is as follows — 
 
 Hamilton, 7th Feb., 1868. 
 MESSRS. KERB, BRO^YN & MACKENZIE, 
 Dear Sirs, 
 
 Referring to our conversation this mornino- we 
 understand that your firm are indorsers upon a P. N 
 of Brown, Gillespie & Co., for about $10,000, one-half 
 ot which, by arrangement between your respective 
 firms would, but for the su.,,.nsion of B. G &Co 
 have been paid by each. ' 
 
 If you retire this note, you will of course be re- 
 stricted m your ranking to the one moiety of the 
 
 ag.mst that firm, but the present holders of the note 
 are under no such restriction, but are at liberty to 
 rank and receive dividends upon the whole amount, 
 and so long as the dividends so received do not 
 exceed the amount, which, by the arrangement 
 between you, they were to pay, you will be under no 
 obligation to recoup that estate. 
 
6 
 
 If, therefore, you can induce the present holders to 
 rank on their estate, you holding yourselves liable to 
 make good any deficiency, substantial justice will be 
 done, and the transaction is one that cannot be im- 
 peached. 
 
 Yours truly, 
 
 BURTON & BRUCE. 
 
 We were induced to forego our pecuniary advan- 
 tage, by the reiterated appeals which were made to us, 
 and by the assurances that to do so ^v^ould be the only 
 method by which B., G. & Co. could be saved from 
 Insolvency and themselves and their families from 
 ruin. After the successful settlement of B. G. & Co. 
 with their Creditors, consequent ui:)on our relinquish- 
 ment of our intended course, we addressed them the 
 following letter, and the following correspondence 
 was the result of our application to them : 
 
 Hamilton, 22nd Feb y 1868. 
 MESSRS. BROWN, GILLESPIE & CO. : 
 
 Dear Sirs, — 
 
 It must be obvious to you that the note of 
 $10,155 00 was retired by us at the Bank of Mont- 
 real under a threat that the refusal, on our part, to 
 do so would be attended by disastrous consequences 
 to yourselves and perhaps to others also. We felt 
 that we could not resist the immediate pressure thus 
 brought upon us, but with a view to a future good 
 understanding between our firms and ourselves indi- 
 
 f 
 
> I -r 
 
 yidually it is absolutely necessary that a full explana- 
 tion of the circumstances which called for this threat 
 should be afforded us. 
 
 We are, 
 
 Dear Sirs, 
 
 Yours truly, 
 KE31R, BROWN & MACKENZIE. 
 
 Hamilton, 25th Feb'y, 1868. 
 MESSRS. KERR, BROWN & MACKENZIE, 
 Bear Sirs : 
 
 Your letter of 22nd inst., is before us and we are 
 sorry that you should regard the visits of Mr. Gillespie 
 and the writer as threats. We merely stated what 
 we believed, and in justification of our statements to 
 you we are permitted to enclose a letter from Mr. James 
 1 urner who was our authority. 
 
 We considered the matter so very serious that we 
 intimated to Mr. Burton that we should have to assign 
 It the cause of trouble were not removed, and we 
 confidently believe now that such action would have 
 been necessary had the note not been taken out of the 
 way ; and, therefore, we beg to thank you for having 
 done so. ° 
 
 Yours faithfully, 
 
 BROWN, GILLESPIE & CO. 
 
 Hamilton, 25th February, 1868. 
 MESSRS. BROWN, GILLESPIE & CO., 
 Gentlemen : 
 
 Y'ou have my permission to state that I was 
 your authority for statements made to Messrs. Kerr, 
 
8 
 
 Brown & MacKenzIe, in relation to the note for $10 
 15o, ulthouo-h I did not say that a creditor Avould re- 
 fuse to sign your deed of composition, still I am not 
 surprised at your drawing such a conclusion, as I was 
 most anxious about the whole matter and conversation 
 took place in a hurried manner and under considerable 
 excitement, as soon, however, as I learned that such 
 was your impression, I at once undeceived you on that 
 point. 
 
 To the best of my recollection, previous to 12-45 P 
 M. on Ihursday last, I had no conversation with either 
 ot you 111 reference to this claim. 
 
 Had ranking not been reduced to its present position 
 I was then and am still of opinion such representations 
 would have, been made as would seriously affect pros- 
 pects of your eff'ecthig a private settlement. 
 
 I am, 
 Yours truly, 
 
 JAMES TURNER. 
 
 Hamilton, February 25th, 1868. 
 MESSRS. BROWN, GILLESPIE & CO., 
 Dear Sirs : 
 
 We are in receipt of yours of this day's date, 
 lour only attempt to afford the explanations which 
 we seek is the statement that Mr. Turner was the 
 authority for your assurance that bankruptcy was 
 impending, and that disastrous consequences to your- 
 selves and others would result it we did not retire 
 the note. And you enclose a note from Mr. Turner 
 in support of this position. 
 
9 
 
 Mr. Turner's note explains nothing, and we have 
 agaui to call upon you for a candid explanation of the 
 comnninications which Mr. Turner or any other person 
 may have made to you, which seemed to you a justi- 
 fication of the pressure which you have hrought'upon 
 our firm. 
 
 Yours truly, 
 
 KEIIR, BliO WN & MACKENZIE. 
 
 Hamilton, 2C)th Feb'y, T8G8. 
 MESSRS. KERR, BROWN & MAC^KENZIE, 
 Dear Sirs : 
 
 We are in receipt of your favor of yesterday, 
 and ^^ery much regret that you continue to press the 
 subject referred to. 
 
 The connnunication which Mr. Turner made to us 
 . being confidential, you must recognize the impossibil- 
 ity on our part of making any further explanations 
 without the consent of all parties concerned. 
 
 Yours faithfully. 
 
 BROWN, GILLESPIE & CO. 
 
 Hamilton, 27th Feb'y, 1868. 
 
 MESSRS. BROWN, GILLESPIE & CO., 
 
 Dear Sirs : 
 
 We are much surprised at the contents of yours 
 of yesterday's date. 
 
 The facts of the case must be admitted to be as fol- 
 lows : — 
 
 We ranked on your estate for $10,155, which, after 
 consultation w^ith yourselves, with the Bank of Mon- 
 
10 
 
 treal, and with other's, and after openly declaring all 
 the circumstances of the case to various parties 
 interested, we considered that we were justified in 
 doing. 
 
 At the meeting of your creditors this claim was 
 not disputed, and the various interests represented 
 accepted your statements and agreed to a composition 
 of eleven and six-pence on the several debts set forth, 
 including ours for ^10,155. 
 
 Subsequent to the acceptance of composition by the 
 creditors, we were waited upon by Mr. Turner, by 
 Mr. Burton, our and your solicitor, by your Mr. 
 Gillespie, and by your Mr. Brown ; all these parties 
 represented to us that most disastrous conseqnences 
 to yourselves and co others would ensue if the note 
 for $10,155 were not immediately retired by us; and 
 your Mr. Brown represented absolute ruin to the 
 interests of your firm if we refused so to retire it. 
 Under this pressure and having no time to seek 
 explanations, we acceded to these importunities, and 
 now that we ask for an explanation of the circumstances 
 which justified the pressure brought to bear upon us, 
 we are first met with an unmeaning reply, and upon 
 our intimation that this was unsatisfactory to us, we 
 are informed that Mr. Turner's communication to 
 you was confidential and that you cannot make ex- 
 planations. 
 
 We will not trust ourselves to comment upon this 
 matter further than to assure you, that we consider 
 the course which you have adopted to be most un- 
 , satisfactory. 
 
 There is one material point, however, which cannot 
 be overlooked, and an explanation of which does not 
 appear to us to involve a breach of confidence, viz : 
 the application of the $5077 50 which the estate 
 
 .1 
 
 ^ 
 
.1 
 
 Nj 
 
 11 
 
 derives from the relinquishment of that amount of 
 our claim. Having declared a composition of eleven 
 and six-pence upon the |10,155, and $5077 50 of this 
 amount being withdrawn, to whom will the composi- 
 tion upon this latter amount accrue ? 
 
 We trust that this query will meet with a more 
 candid reply than the other"' points in our present dis- 
 cussion have received. 
 
 We are, 
 
 Yours truly, 
 
 KERR, BROWN & MACKENZIE. 
 
 Hamilton, 28th Feb'y, 1868. 
 
 Dear Sirs : 
 
 Yours of yesterday is before us and we beg 
 that you will excuse the writer replying to it until 
 the return of his partners from Montreal. 
 
 Yours faithfully, 
 
 BROWN, GILLESPIE & CO 
 
 To MESSRS. KERR, BROWN & MACKENZIE, 
 
 Hamilton. 
 
 } 
 
 Hamilton, 5th March, 1868. 
 MESSRS. KERR, BROWN & MACKENZIE, 
 
 Hamilton, 
 Dear Sirs : 
 
 Your letter of 27th, ulto., receipt of which has 
 already been owned, would have been sooner fully 
 acknowledged only our own affairs have preoccupied 
 our attention. We regret that our previous com- 
 munications have proved so unsatisfactory, and fear 
 that the present will be no better in this respect, as 
 
155 
 
 on 
 
 12 
 
 we cannot give fuller explanations in reference to the 
 point at issue than we already have done. We 
 admit your statement of the facts to be very correct 
 but are not aware of either Mr. Gillespie or the writer 
 stating that your ranking on our estate for | 
 other """"^'"'^ "''''^ clisastrous consequences 
 
 We were most desirous that you should only rank 
 as cmlitors for |5077 50, and this gives us the oppoi-^ 
 tunity ofstatingthatitwasinyour power loi^llv 
 to have ranked for the full amount, and althouo-h 
 such a course would have forced us into insolvenc'y, 
 still we have no claim as a firm to ask you to wai4 
 your legal rights. The prompt manner in which 
 you solved the difficulty, calls for more than the 
 simple expression of our thanks, and it is therefore 
 with our deep regret that a correspondence on the 
 subject has been commenced, which we hope may 
 terminate without destroying the good feeling so 
 long existing between us, but cannot fail to cast a 
 shadow over your kind act in retiring the note in 
 
 We have no hesitation in answering vour last en- 
 qiury and enclose a report of the investigatina- com- 
 mittee from which you will see their opinion and 
 which was concurred in by all our creditors in Mon- 
 treal m so far that they read same before executing 
 our composition deed ; moreover, we are advised by ou? 
 solicitors that were we to divide the amount thus 
 gained to the estat. (some $2300) among the credit- 
 ors we would invalidate our deed of discharge. We 
 therefore see no other course open but to rtftain the 
 amount and we hope in this you will concur. 
 
 nnii I """^ T^'l ^""^'^^^^ to-day than when we first 
 called on Mr. Brown on the 20th ulto., that if you 
 Had insisted on ranking on our Estate for the full 
 
13 
 
 amount of our note we would have been compelled 
 to go into nisolvency, and hoping this .etter may 
 ternunate the discussion of this unpleasant subject. 
 
 We remain, 
 Dear Sirs, 
 
 Yours faithfully, 
 BIIOW^, GILLESPIE & CO. 
 
 Extract from PtEroRT of Investigating Committee 
 
 a Q- ,T. .. Hamilton, 21st Feb'j, 1868. 
 
 bmce the meeting of Creditors on the 19 th inst 
 tiie raiiking of one Creditor has been reduced froin 
 "^^10,155 to half that amount." 
 
 '' The committee arc of the opinion that the amount 
 there saved to the Estate would effect so triflino. a 
 change on the total dividend that it should not render 
 any new proposition necessary." 
 
 JOHN YOUNG. 
 W. N". ANDERSON. 
 JAMES TUENER. 
 
 Hamilton, 9th March, 18G8 
 MESSES. BEOWN, GILLESPIE k CO., 
 
 Dear Sirs : 
 
 We regret that yours of the 5th, inst., should 
 leave this question in so unsatisfactory a position. 
 
 It appears to us that you have scarcely been war- 
 ranted m pressing us in so forcible a manner into the 
 settlement which we have made, while you are pre- 
 cluded from affording us the required explanations. 
 
 We feel ourselves justified however in presuming 
 that tlie monies realized by the retirement of the 
 note will find their way into the proper channel 
 eventually. ^ 
 
 We are, 
 Yours truly, 
 
 KEEE, BEOWN & MACKENZIE. 
 
14 
 
 The above letter was written, under the impression 
 that B., G. & Co. were in need of all available funds 
 at this period, and that after their composition should 
 be paid, and they had recovered from their financial 
 difficulties, they would not hesitate to return to us 
 the monies they had in their possession, by our retire- 
 ment of the note ; we therefore waited until the date 
 of the following letter, when we made the following- 
 application to them : ° 
 
 Hamilton, January 29th, 1870. 
 MESSES. BROWN, GILLESPIE & CO., 
 Dear Sirs : 
 
 ^ Reverting to our former correspondence on the 
 subject of the ^10,155 note, and especially to the 
 hint which we offered in our letter of 9th March, 1868 
 we venture to hope that you are now prepared to pay 
 over to us the monies which you have acquired by 
 our retirement of such note, believing that the estate 
 is sufficiently wound up to enable you to do so with- 
 out inconvenience: 
 
 We are. 
 
 Yours truly, 
 
 KERR, BROWN & MACKENZIE. 
 
 Hamilton, Ontario, 1st Feb. 1870. 
 
 MESSRS. KERR, BROWN & MACKENZIE, 
 
 Hpmilton, 
 Dear Sirs : 
 
 We have your favor of 29th, ulto., and have 
 given its contents our most earnest consideration. 
 
 You are no doubt aware that when the change was 
 made in the ranking on our estate by your retiring 
 
 A 
 
 ■T 
 
15 
 
 J 
 
 A 
 
 •T 
 
 the note in question, we then referred the whole facts 
 to the scrutineers appointed at our meeting of credit- 
 ors, and they recommended that " as the amount so 
 " saved to the estate would effect so trifling a change 
 '' in the total dividend that it should render no new 
 "proposition necessary." We further informed our 
 creditors of the fact before obtaining their sio-natures 
 to our deed of composition. "^ 
 
 We seek to be guided in this matter by a spirit of 
 strict commercial integrity, but foil to discover any 
 difference in the position of your claim and that of 
 other creditors. 
 
 We are sorry that we are not in a position to pay 
 all our obligations in full, and we cannot see the 
 justice of our liquidating your claim when we can- 
 not do the same with the others. 
 
 Let us, however, have your reasons for pressing 
 your claim at the present time. 
 
 Yours truly, 
 
 BROWN, GILLESPIE & CO. 
 
 Hamilton, Feb. 2nd, 1870. 
 
 MESSRS. BROWN, GILLESPIE & CO. 
 
 Dear Sirs : 
 
 We have yours of 1st, inst., and are surprised at 
 its contents. We are of course quite aware that you 
 apprised your creditors of the altered position of your 
 estate, by our retirement of the bill in question, and 
 that they declined, under a full knowledge of the facts, 
 to participate in the assets so acquired. 
 
 It is not necessary that we should impugn your 
 statement that you^^seek to be guided in this matter 
 by a spirit of strict commercial integrity," and we 
 
16 
 
 desire to give you credit for sincerity when you as- 
 sure us that you fail to discover any difference in the 
 position of our claim and that of other creditors. 
 
 We rej jice to infer from this assurance that this 
 view of the matter forms the only difficulty in the 
 settlement of our present claim, because we entertain 
 no doubt that we are able to convince all parties 
 willing to be convinced, that our position is wholly 
 different from that of other creditors ; and Avhile we 
 desire to give you credit for sincerity in the expres- 
 sion of your opinion to the contrary, we marvel upon 
 whfit ground such an opinion is founded. We point 
 your attention to the flicts of the case — not our state- 
 ment of the ilicts — but the tacts incontrovertible and 
 admitted hy yourselves. You are avrare that the 
 original position of the transaction did not render it 
 necessary for us to indorse your paper, and thereby 
 become liable in case of the contingency of your sus- 
 pensioL " payment, and that this proceeding on our 
 part was exclusively in your interest. Having thus 
 become jointly liable for the Vv'hole amount of our in- 
 dorsation, we endeavored (as we consider in perfect 
 honor) to save ourselves from the consequences of 
 such liabilty, and you admit in your letter of March 
 5th, 1868, that we were in a legal position to do so. 
 
 After full explanations to all the parties interested, 
 your creditors accepted the statement which you of- 
 fered, securing us in the amount for which we had 
 become liable. You admit our statement of facts, that 
 at this stage we were induced to relinquish our posi- 
 tion — our legal claim to the monies in question — by 
 the assurance of Mr, Turner and Mr. Burton, in your 
 behalf, and by that of your Mr. Gillespie and your 
 Mr. Brown, that unless we did so, ruin to yourselves 
 must ensue , we yielded to the pressure so emphati- 
 
 y» 
 
 f- 
 
17 
 
 ft 
 
 cally and so hastily brought upon us ; in other words 
 to save you from ruin we yielded our legal claims to 
 the monies which you now enjoy, and thereby estab- 
 lished a claim upon your honor and integrity, as ivell 
 as upon your generosity. 
 
 You state in a former letter "the prompt manner 
 in which you solve the difficulty calls for more than 
 the simple expression of our thanks." We ao-ree 
 with you in this; the expression of your thanks 
 would, in our opinion, be but idle words while vou 
 continued in the enjoyment of monies obtained from 
 us under an appeal which induced us to sacrifice our 
 own interests to the furtherance of yours. 
 
 In this view of the case— a view admitted by your- 
 selves—we repeat that it surprises us that you should 
 tail to discover any diflerence in the position of our 
 claim and that of other creditors. 
 
 The facts are before you, and should convince you 
 ot tlie lallacy of your position. 
 
 We are. 
 
 Yours truly, 
 
 KERR, BKOWN & MACKENZIE. 
 
 S.4TURDAY, Feb'y 5th, 1870. 
 MESSRS. BROW]^^, GILLESPIE & CO. 
 Dear Sirs : 
 
 We find our letter written you on Wednesday 
 was dated January 2nd, instead of February 2ncL 
 We await an answer to the same; meantime remain, 
 
 Faithfully yours, 
 
 KERR, BROWJS- & MACKENZIE. 
 
18 
 
 Hamilton, Ontario, 5th Feb'j, 1870. 
 MESSRS, KERR, BROWN & MACKENZIE. 
 Dear Sirs : 
 
 , . "^T^ ^^ ^"^' ^"«^v would have been answered 
 betore this but for the absence of our Mr Brown 
 who only returned home last --ening, and the matter 
 will have our attention on Monday. 
 
 Yours truly, 
 
 BROWN, GILLESPIE & CO. 
 
 Hamilton, Ontario, 7th Peb'y, 1870. 
 
 MESSRS. KERR, BROWN & MACKENZIE. 
 
 ^ ^. Hamilton. 
 
 Dear Sirs : 
 
 We are in receipt of your lavor of 2nd, inst., and 
 are surprised at your statement thot your endorsing 
 the note in question was exclusively in our interest 
 We cannot believe that you recollected the flicts when 
 so expressing yourselves. We must take exception 
 to the expression, "admitted by yourselves," intro- 
 duced so frequently throughout your letter; for while 
 we are prepared to admit evervthing we have ever 
 said or written on this subject, there is so wide a 
 difference between us that we think the best course is 
 again to state the facts as we understand them. 
 
 In July 1867, your firm and ourselves made a 
 purchase of sugar in Halifax, the money to pay for 
 same when due.was procured from the Montreal Bank 
 m this city, upon our three notes for |10,000, each 
 (round figures) endorsed by your firm; these notes 
 were discounted by the Bank of Montreal and pro- 
 ceeds invested in Sterling Exchange, £3000 of which 
 
19 
 
 . 
 
 was paid over to your firm whilst we received a simi- 
 lar sum. Our firms were to pay respectively the 
 half of each note as they matured, seeing that each 
 had got sugar to represent same, but for our conven- 
 ience (wo believe) we retired the first, whilst you 
 paid the second, and the third (the note in question) 
 fell due after our suspension ; it is clear, therefore, 
 you received the same benefit in the transaction as 
 we did. You had received Montreal Bank Exchange 
 for the half of this note as well as of the other two, 
 and should we think at once have paid your half and 
 ranked on our estate for the other — the amount 
 you actually had to pay on our account. We cannot 
 see therefore how you can say that the transaction 
 was " exclusively in our interest." 
 
 We now learn for the first time that it was in con- 
 sequence of the " pressure so emphatically and so 
 hastily brought upon you" by Messrs. Turner, Burton, 
 Gillespie, and Brown, that you relinquished your 
 position and retired the note in question. 
 
 We are informed by all these gentlemen that you 
 distinctly refused to do so, and we had abandoned any 
 attempt to change your decision, when subsequently 
 you, without solicitation on the part of any one act- 
 ing for us, voluntarily paid it. 
 
 We do not think you sacrificed your interests in 
 retiring the note in question ; you thereby saved us 
 the disagreeable necessity of going into insolvency 
 which we would have been compelled to do had you 
 retained your original position, being perfectly satis- 
 fied we would never have got our deed of composition 
 perfected so long as you ranked on our estate for the 
 amount in question ; and whilst we admitted in our 
 
20 
 
 letter of 5th March, 1868, (on our Solicitor's written 
 opinion), that you were in a position to savj you " 
 
 W tT f °iM""*',-^'» )' ■''■0 do not for a moment be- 
 lieve that after we had gone into insolvency you could 
 have retained that advai-tan-e 
 
 We did feel grateful for heing saved the disa"-reea- 
 Ue necessity of going into insolvency, and tl.erefol 
 expressed ourseves .strongly in thanking yo We 
 m™' f^tl •* '"" *''"' '^'^ I"'"'™' °''*i« letter wHl 
 «•. '■"''' "•^'''""'''^'^ "' ^""'^ *" "■'"«'' it i« an 
 We are, 
 Dear Sirs, 
 
 Yours faithfullv, 
 
 BUCm^-^ GILLESPIE A CO. 
 
 Ha^iiltox, 8th Febniarv, 1870 
 MES8IJ.S. BEOWX, GILLESPIi: & CO. 
 
 Gentlemen : 
 
 ^M,n7'i f7'>'T' '"''I'"'-'' "' f'e contents of your 
 
 It^tu, f • ;"'*""*• ^'■^ '•'^f™'" from declaring the 
 fee ing which a perusal of your letter of the 7tl, 
 instant, has called forth in us. 
 
 You are not at liberty to take exception to our ex- 
 pression "admitted by yourselves," fo/if yo, compare 
 our stateinent of facts contained in our l-^tter of Feb- 
 ruaiy 2.th, 18e:^. with the expressions used h orn^ 
 o 2ndnistant, you will fSnl to perceive any „mteu"a 
 discrepancy between them, and thisstatementS' facts 
 you u„re.er,edly admit in your letter of March 5tl 
 
21 
 
 You assure us that you fail to discover that our 
 position is different from other creditors, and we may 
 assume that if we can enlighten you upon this point 
 your "strict commercial integrity" will induce you 
 to relinquish the monies you have taken from us. 
 
 We pointed out in our letter of 2nd instant, the 
 grounds on which we based our assertion that our 
 position was wholly different, and we have now to 
 consider the validity of your remarks in reply. 
 
 You deny our position that the transaction was 
 exclusively in your interest, on the ground that we 
 received the same benefit as you did therefrom ; this 
 is not a valid ground for taking issue with us on this 
 point ; you must show that Ave desired this benefit, 
 that we sought it or readily entertained your proposi- 
 tion when it was made to us. We deny this, and 
 reassert that we entered into the arrangement for 
 your accommodation. Our assertion may appear to 
 involve a direct contradiction without proof to sustain 
 it. We can only sujiport our statement by remindino- 
 you that we never sought your endorsation at any 
 time, such transactions whenever they have occurred 
 have been at your request and for your benefit. We 
 must urge further that w^hen the proposal was made 
 to us, and a conference between ourselves, as partners, 
 was held upon it, it Avas not considered by us as for 
 mutual benefit, but the question was '* shall we do it 
 for them ?" 
 
 If we are asserting a truth in this declaration we 
 establish irrefragably our position, that the trans- 
 action was entertained by us ^'exclusively in your 
 interest." 
 
 You must be much at a loss for arguments to sup- 
 
22 
 
 port your views when you assert that you now leani 
 for the first time, " it was in consequence of the 
 pressure so emphatically and so hastily brought upon 
 UH that we relinquished our position." If you will 
 refer to our letter of Feb'y 27th, 18G8, you will find 
 the same declaration made, and in yours of March r)th 
 1868, you admit our statement *of the facts to be 
 " very correct." 
 
 But if the facts are as you now state them, to what 
 purpose can you use the argument in proof that our 
 position IS not different from that of other creditors, 
 which is the main point at issue between us ? You 
 urge; we decHne ; but subsequently yield. Do you 
 mean to insinuate that we yielded hi our omi inter est? 
 and if not so in whose interest but in yours could we 
 have yielded ? Is this placing ourselves on the same 
 tooting as other creditors ? 
 
 Your remark that you do not think we sacrificed 
 our own interests in retiring the note in question 
 occasions us much surprise. We quote your own 
 words from your own letter of March 5th, 1868.— 
 ''We were most desirous that you should only rank 
 " as creditors for 15077.50, and this gives us the 
 " opportunity of stating that it was in your power, 
 ' legally, to have ranked for the full amount, and 
 'although such a course would have forced us \\\\o 
 "insolvency, still we had no claim as a firm to m\i 
 'you to tvahe your legaJ rhjhts ; the prompt manner 
 m which you solved the difficulty calls for more 
 than the simple expression of our thanks." Are we 
 to understand from your remarks in your letter of 
 ^i\\ mst., that while we " waived our 'legal rights " 
 and conferred so much benefit on you thereby we 
 were in fact sacrificing nothing, and that we were 
 
28 
 
 conscious that wo were making no sacrifice? If this 
 be liot your meaning we fail to see how your argu- 
 ment will help you, and admitting for the sake of 
 argument that your new light on the subject is the 
 correct one^ that in fact no sacrifice was made on our 
 part, and that we were conscious that we made no such 
 sacrifice in retiring the note ; in such case we are at a 
 loss to understand for what act on our part we were 
 entitled to the "warmest expression of your thanks." 
 Your argument is in fact baseless,andif well grounded 
 would not help you to establish your position, that 
 we are only entitled to rank as other creditors. 
 
 After a careful analysis of the points raised in your 
 letter of the 7th inst., avo are only able to reduce 
 them thus : 
 
 1st. That the endcrsation was for mrtual benefit. 
 
 2nd. That the pressure wus removed and that our 
 retirement of the note was ji spontaneous act. 
 
 3rd. That we have sacrificed nothing by retire- 
 ment of the note. 
 
 We have answered all these points conclusively, 
 and have shewn that : 
 
 Ist. The transaction was made for your benefit. 
 
 2nd. That the retirement of the note was to save 
 you from ruin. 
 
 3rd. That if it could be established that we sacri- 
 ficed nothing in the retirement of the note, never- 
 theless we believed tliat we were making such a 
 sacrifice at the time we made it. 
 
 We have, therefore, established our position, that 
 we are not to be considered as ordinary creditors, and 
 claim that your " commercial integrity " calls upon 
 
24 
 
 you Uy relinquish the money which yye h«v« a 
 
 Meantime remain, 
 Faithfully yours 
 
 KERU, BROWN & MACKENZIE. 
 
 Hamilton, Ontario, 12th Feb lH7n 
 ME.SSRS. KEEK, BEOWN .. .MACKENZIE, 
 
 ri„„+i Hamilton, 
 
 treiitlemen : 
 
 Your Jiivor of Stli insr h„^ i, j 
 we are much astonished nfii ^r\°'''' P*'™«''1' -^nd 
 that the ta^ansailr 4e ;£"l *1 ^■'^" ^*"' -«-•* 
 of o.,r,s for |3000 odd ^■.^'^dulZh'^"'' "■"'i^'^^'' 
 Any diseussion that the momb^rS vo.n'V"'''"'^'*- 
 have had together cannot alter (hi ^f°" ^r^'^y 
 notes endorsed by vor ^vnZ r if *'^''' "">■ 
 
 of 130,000 (roun7figCs he hUfT* K f" '''^''^"t 
 you received in Stlrlimr Fv!r *''''"'='' ™'«"»t 
 
 found it just as oonS^ ^S.f' •^:?hV;° .'?,"''! 
 you -were endorsers ;not„ 7 7" ™- -iho fact that 
 does not >„ake the t-^l r^ "'"'''"■^ ^^^^ "'« bills 
 interest. It would h.rT'°" P'^^^'i^rly i„ our 
 for both of us if we ht b« "1, "l"'*". "' convenient 
 the makers We thtk H idle .' ''t''"'' ^''^ y"" 
 as the facts prove that Lb f " '^''"'"' *''«> P™"* 
 
 «tedb,thefLliL*SSd5rtLTa:kTl!^i- 
 
 >< 
 
26 
 
 — 'ir reft t'r x'f " 't • ^'^ "^ *'- 
 
 February, you sLTtltf "• , ^" y°"i-« of 2nd 
 
 considered ';;rf:rh„*i':)rs:;t"""^^ ('« ^-^ 
 
 loss, &e., &c. We hiZ2 ^ ? if!? yourselves from 
 that what you did T.sL "t* f 'f /'^" ^''-'^'-J^red 
 uow regard the poritiMtohnv'T''''* ''""''''" ''"t '^o 
 able one, and in which veww ''" ". ^"'"^ '1""^^''°"- 
 ofour creditors whrpCo mcHt tT'*^ *'^ "1^"^ 
 should not be tolerated ""^ ''"® ^'"^h 
 
 Bank of irontieal was C^^^ito;"* *'"'^'^-"'- ^^e 
 you refusino- to hnnl , ''''^"''or m consequence of 
 
 then you liave been naS'T ^"^"'''- "' ^''^ ^^^r 
 indebtedness, butTf the of/™"' /ri*''*^"" O" our 
 tinned our cred tor on,- n f '^"'^ ""^ ^'^^'^ ^'^ con- 
 in which ea?e o °''e° ditor/r"ff /'"^^ insolvency, 
 note, and afterwards have '. n'1 ^'''^^ '"^"^'^ the 
 order to make voTronr. •^°'"1'*'"<"I Jou to pay it i„ 
 we really o^^ryol" so tlTJ "''''' 'T "'« -»0"nt 
 stated in a former l^tLn '" ''i'; ''^^^ already 
 
 twined any advTtao-ebv re/"" '"'"''' "''* ^"'^''^ <"> 
 You would onlyhAZT'V-''"' ^''^ l««'«on. 
 into insolvency wiZnf I • '*" ?'^"™ "^ Arcing us 
 "icy without being gamers thereby 
 
 "oteTflfSoluo IufV"^ ""? ^''^'f °f"-'-t 
 %-tunate inaWIity to ,f, l:."""^' Z^'^'^' ""'1 our un- 
 leased yoH from von!. Ir^ *j"' °*«'' half never re- 
 Bank/ WfeyCrautf'"' •^"•^'^ *° "-^ -d the 
 commercial inteJty"' and f'^^'-^. *''^* "•"Wet 
 should have ind^rced you ^f ^^ ^Z*'' *°*^-^'''>« «s 
 or else have pai you^ half t^" *'"'^<'" "P *''« "ote 
 amount for whie vZh^r.!^ I "" "'"'''' '^an the 
 "ica you had already received value in 
 
26 
 
 the shape of sterling exchange from the Bank, in 
 either case in equity the ranking on our estate should 
 have been only for half the amount of the note, and 
 m snuple justice you should not have attempterl to 
 take an advantage over the shoulders of the Bank of 
 Montreal . 
 
 In our letter of 5th March, 1868, which vou quote 
 so freely, we erred in stating that you held a legal 
 position strong enough to save you from loss. We 
 should have stiid the Bank of Montreal, as holders of 
 the note coiild legally rank upon us for the whole 
 note, but this would have been obviated, as we have 
 shown, by our going into insolvencv. 
 
 In answer to your emphatic demand for the pay- 
 ment of this money, we beg to state that we shall 
 submit the matter to the original committee appointed 
 at our meeting in Feb'y, 1868, and should thev con- 
 sider that you are entitled to be preferred we shall 
 then submit the state of matters to all our creditors, 
 and if they are unanimous in recommending a similar 
 course we shall forthwith hand you the amount. 
 
 We regret indeed that you were creditors of ours, 
 the more so because from the written opinion of our 
 ^y,?''^},?\'' P^^^c^^d .y^>ur claim upon us in statement 
 ot liabilities as double the correct amount which we 
 should have promptly refused to do had we then 
 been as conversant with the position as we now are 
 and we may add that the difference hereby caused in 
 the amount of our assets would not have induced us 
 to otter more for the estate, and in conclusion we may 
 «tatc that though legally absolved from all liability 
 we still feel morally bound to pay all who are our 
 creditors in equity, 20s. in the £, and trust the time 
 
27 
 
 is not far distant when we will be 
 do so. ^ 
 
 m a position to 
 
 We are, 
 
 Gentlemen, 
 
 Yours faithfullj^, 
 
 BmWN, GILLESPIE & CO. 
 
 Hamilton, 14tli Febriiar>-, 1870 
 MESSRS. BROWN, GILLESPIE & CO., 
 Sirs : 
 
 have „o ca.er:;ouM? rriSfothf-d:^"' " ^°" 
 
 integrity d^Zft^t ZZ I' '°™'"^'''^'^' 
 priated sum of money n ™m- I. ""? "'IW"- 
 
 «s, because you are uuab /to ,.„ t' '^""''^J^ '''•"'» 
 difFerino- frnm n ; ]• .1 ^ "'sard our posit ou as 
 
 having been discounted by the Ba k tb ."^"^^'^n 
 pppf1« nf «ri.,- ,1 . ''^ -oanK, tne liali pro- 
 
 o- »v c can tnis an evasion, and fear it 
 
28 
 
 is intended as such, for you cannot fail to have no- 
 ticed, from our letter of the 8th inst., that we do not 
 deny the self-evident fact which you state, hut show 
 you that the endorsation of your notes was with a 
 view to promote your interests : does this declaration 
 astonish you hecause the desire to serve you had in- 
 directly a beneficial effect upon ourselves ? Are you 
 prepared to den}' our repeated assertion that we 
 would not have entered into the transaction for the 
 purpose of our own benefit, and that our motive Avas 
 to oblige you ? 
 
 Our statement of the conversation between our- 
 selves as partners does not impugn your assertion 
 that we derived a benefit from the endorsation ; but 
 if the statement that such conversation was held be 
 not a lie, it cannot fail to have convinced you that 
 our motives were not those of self-interest, and that 
 therefore we were in a different position to that of 
 other creditors. We repeat that we think you can- 
 not fail to have seen this, and having esolved to 
 keep this ill-gotten money to yoarselvi s, you are 
 driven to evasion to sustain your position. 
 
 We proceed to sustain our charge that you are 
 abusive ; you point out the course which your views 
 of '• commercial integrity " should have induced us 
 to pursue, and you add, '' In mw^lQ justice yoM should 
 not have attempted to take an advantage.'' 
 
 If we have been guilty of taking an "unfair ad- 
 vantage," we hold you as accessories before the fact, 
 and participators in our crime, and think you should 
 not only have been ashamed, but afraid to bring 
 such a charge against us, in view of the facts of the 
 case. 
 
29 
 
 Were you not apprised of our intention to take 
 tlie course ^ve proj,osed with the Bank? and did not 
 more than one of your partners, if not all of you ap- 
 prove of that course ? Are you prepared ^t ^n 
 events to assert that either indfvidua^ll ^or as' a firm 
 nZl°^-'-Ti- ^ ^^^ourse proposed? If then we 
 acted vithn. 3our kncvledge and approval, how 
 utteily at a loss you must be for an argument to sus- 
 tmn your case when you are compelled to have 
 recourse to insult without argument to uphold youi- 
 
 cannot belong to vou. 
 
 The fact i^ your letter lacking sincerity and 
 
 truth, overreaches itself: we illustrate this by show- 
 ing your remarks thus : -^ 
 
 f '•' We feel warranted in saying 
 " We have ' ^"'"^^ ^^^^^p^ commercial integrity and 
 no doubt that ?^?^ ^^^*^^ towards us should have 
 what you did.^ induced you to have taken up the 
 was in ^perfect "^^e, or else have paid your half, 
 honor.'" ^^"« i" simple justice you should 
 
 not have attempted to take an ad- 
 L vantage," &c., &c. 
 
 «;+ •^^'il'' .''^"^ '^''^ Pi'epared to dispute the legal po- 
 sition that you assume, that in the event of insolv- 
 ency .your creditors would have compelled us to pay 
 
 t tV'in' ^/^''^^f "''' '-' 'i^'''^'' ^^'' assertion tliat 
 
 tn^' •?!.!? ''^^'''' ^"^^^ ^^'''^ y""'' '^^^ has nothing 
 to do with the question. ° 
 
 l.n3!!'V'''"'*.i''* T"" ^^^^^^'^^^^1 ^^« i-^, not what would 
 ha^^e been the effects upon our future interests of 
 such aiid such^ a course, but what were our motives 
 towards you m pursuing such a course ? If they 
 were such as we state them to have been, we do not 
 
30 
 
 stand towards you as other creditors, and therefore 
 you have no right to appropriate to your own use 
 moneys extorted from us by an appeal to our generos- 
 ity. 
 
 Nothing can evince more strongly your desire to 
 possess yourselves of these moneys at all hazard — 
 even that of your reputation— than your proposal to 
 consult the original committee, and in event of their 
 differing from you in opinion, then to require the 
 unarmnous consent of your creditors to the payment 
 of these moneys to us, well knowing as you must, 
 that the unanimous decision of a number of individuals 
 could rarely be obtained for any purpose, and feeling 
 quice safe therefore, as you must do, that this appeal 
 will not result in your having to give up the moneys 
 which you have acquired. 
 
 As to your i^roposed payment to your creditors of 
 20s. in the £, we can only remark that we shall be 
 happy to witness so desirable a conclusion, but we 
 are unable to see what this alleged intention has to 
 do with your retention of these moneys in the mean- 
 time. We do not anticipate that we shall receive 
 any further baseless attempts at argument on this 
 
 matter, — and are 
 
 Yours, &c., 
 
 KEEE, BEOWN & ILVCKENZIE. 
 
 Hamilton, 23d Feb'y, 1870. 
 
 MESSES. KEEE, BEOWN & MACKENZIE, 
 
 Hamilton, 
 
 Gentlemen : 
 
 Your letter of 14tli inst., has had our attention, 
 and certainly if the remark about the pettifogging 
 
31 
 
 attorney is applicable to either side of the corres- 
 pondence, there can be little doubt but you should 
 
 lor Itself with any one who may take the trouble to 
 
 S!f?\ V-r'f'"''"?^",* ?''^^' ^^y ^ bitterness and 
 deep hostility which, in discussing this business 
 ditterence between us, reflects no credit u])on you 
 Instead of writing calmly and temperately, you seem 
 to pen your letters with a desire to cause an estrange- 
 ment where such should never exist. 
 
 We are not influenced by your dictatorial corres- 
 pondence When properly expressed, we are willing 
 to accord to you the right to your opinion, but we 
 claim that we are entitled to the same, this riirht 
 however, you appear to deny us, and seem to think 
 that we should regard your assertions as facts. In 
 words'^' ^^""'''^ '^' ^^ ^''^ reminded of Shakspeare's 
 
 . , , ^ "I am Sir Oracle, 
 
 And when I ope my mouth let no dogs bark." 
 
 You charge us with being accessories and participa- 
 
 tZ'?n ^'T^'^'f "''^"^^" -fyo-rendeavoring^to 
 take an unfair advantage " over our other creditors 
 m the amount of ranking on our estate, we can easily 
 show that we were forced into the position by your 
 
 a cSo'r ^'''' ^""^^ ''^ ^'"''"''^ ^^'' making such 
 
 In making up our list of liabilities, in our pre- 
 
 olf T f .f.^'' '^' P^* ^'^" ^^^^^ ^' creditors,^ on 
 account of this note m question, at the amount we 
 actually owed you say $5,077.50, believipg you 
 would pay your own half, and for which you had 
 received value, we however shortly after were 
 informed that you intended taking such action as 
 
would force us to pay a composition on the whole 
 ^nountof the note, 110,155, we were anxious t at 
 tr should oul) rank for the amount we actaally 
 owed YOU and found on taking legal ^vice, that f 
 ?he note in nuestion were held by the Bank of Mont- 
 realour Ltite would be compelled to pay on the 
 whole amount. You subsequently o^^-^ /"^f .f £ 
 Ktoril securities or made an arrangement with the 
 stk of Montreal whereby (out of the --^ — ^ 
 business) the note at maturity -^^"^^-^ >>>»«, 
 although subsequently you did. It ^^'« «^'^'''' "^ '",„ 
 forrthatwehad no other course open to "but to 
 Tee the whole amount of the note as a liabilitj , but 
 ve must distinctly decline any share or part.cipatimi 
 Tthe thin"-, it must rest on the shoulders of those 
 who de^S it, had we kno>vn then, the true position 
 Z well as we did afterwards, we never would ha^ e 
 yielded becouse we are warranted in saying that not 
 ^even the B^^ik of Montreal could have ranked for the 
 full amount of the note. 
 
 We wish you to understand that we are neithei 
 
 "Zlnel" or "afraid" to discuss this matter a. J- 
 
 wl'e re Your illustration of our want of sincerity and 
 
 Xis an unfortunate one for you, as m he quoto- 
 
 tinns vou furnish from our letter ot l.HU lUst., jou 
 
 r eft out the words " you '^'^'^'^f 7^^^^ 
 
 =i;^i--;^t^ujir£.3^ 
 
 have considered your subject, and '''\y^^'''^ I'fZl 
 
 no necessity oi agamic icii ill o :,,fovoqf ms vour 
 
 T +^ri imiricT Piitirelv in our inteiefet, as y^\^^ 
 
 £C~r.fonof alter the facts of the case in 
 
83 
 
 the slightest degree, and we can only express our 
 Buprise that intelligent men should endeavor to 
 maintain so absurd an idea. 
 
 We have endeavored (we think successfully) to 
 conduct our part in this correspondence in a tem- 
 perate and becoming manner, and regret that you 
 should have pursued a different course. 
 
 We have now to state in closing that the step 
 intimated in our last will be taken, and the matter 
 submitted to the original committee appointed by our 
 creditors. Our creditors are the parties who have 
 the best right to be consulted in such a matter, we 
 would be acting unfairly to them and injuring our 
 o\7n reputation were we to accede to your demands 
 and pay you in full without their sanction. 
 
 Yours faithfully, 
 
 BBOWN, GILLESPIE & CO. 
 
 P. S. — We should have replied to your letter be- 
 fore now but for the absence of one of our firm. 
 
 B., a, &C0. 
 
 FeVy 23d, 70 
 MESSES. BROWN, GILLESPIE & CO. 
 
 Gentlemen : 
 
 Wo have yours of this date, and find on perusal 
 that it contains nothing bearing upon the question at 
 issue but what has been already stated and answered. 
 
 Yours, &c., 
 
 KERE, BEOWN & MACKENZIE. 
 
84 
 
 Hamilton-, 8tli March, 1870. 
 
 MESSRS. KERE, BEOWN & MACKENZIE, 
 
 Hamilton. 
 Gentlemen : 
 
 As intimated to you in previous letters we have 
 submitted the correspondence between our firms to 
 the original committee appointed by our Creditors, 
 and now beg to enclose herein copies of our letter 
 and their reply. 
 
 We are. 
 Gentlemen, 
 
 Yours faithfully. 
 
 BROWN, GILLESPIE & CO. 
 
 Hamilton, 25th Feb'y, 1870. 
 
 MESSRS. JOHN YOUNG, Merchant, Hamilton. 
 JAMES TURNER, 
 W. N. ANDERSON, Manager, Bank B.N.A., 
 
 Hamilton. 
 
 Dear Sirs : 
 
 "We enclose copy of a correspondence between 
 Messrs. Kerr, Brown & McKenzie and ourselves in 
 which they demand payment from us of some $2500, 
 an amount by which our Estate was benefitted at 
 the time of our suspension in 1868, in consequence 
 of their endeavoring over the shoulders of the Bank 
 of Montreal to rank on our estate for double the 
 amount we owed them. 
 
 You win, no doubt, (from having looked into 
 our afi'airs on behalf of the creditors at the time) be 
 well aware of the facts, and we shaU not therefore, 
 
85 
 
 enter into any details. Will you oblige us by read< 
 ing over the correspondence and give us opinions on 
 tne lollowing points : 
 
 Can the note in question be called an accommo- 
 dation one, and were we the only parties accommo- 
 dated in the transr,ction ? 
 
 ^ Would we be warranted under the circumstances 
 m acceding to Messrs. Kerr, Brown & McKenzie's 
 demands by paying them the sum ? 
 
 Do you consider they have any better claim to 
 this money than our other creditors ? 
 
 Yours faithfully, 
 
 BEOWN, GILLESPIE & CO 
 
 Hamilton, 3rd March, 1870. 
 MESSRS. BROWN, GILLESPIE & CO., 
 
 Hamilton. 
 Dear Sirs : 
 
 We now return you herewith the copies of the 
 correspondence between Messrs. Kerr, Brown & 
 McKenzie and yourselves, which we have carefully 
 read. "^ 
 
 To the three questions proposed to us in your 
 letter of 25th ulto. we reply as follows ? 
 
 First, we are of opinion that the note in question 
 was not an accommodation one in the usual and 
 ordinary sense of that term. 
 
 Second, we are of opinion— you would not be 
 
 warranted, under the circumstances, in acceding to 
 
 the demand made by Messrs. Kerr, Brown & Mc- 
 Kenzie. 
 
36 
 
 Third, we are further of opinion that they have 
 no better claim to the money than any of your other 
 creditors. 
 
 Yours respectfully, 
 
 JOHN YOUNG. 
 W. N. ANDERSON. 
 
 Jt*.S. — We may add that the correspondence was 
 sent to Mr. Turner, who returned it without any 
 message, we therefore assume that he does not wish 
 to join in this letter. 
 
 Hamilton, 15th March, 1870. 
 
 JAMES TUENER, ESQ., 
 
 Hamilton. 
 Dear Sir, 
 
 We have received from Messrs. Brown, Gillespie & 
 Co. copy of a letter addressed to them by Messrs. Young 
 & Anderson, answering certain queries submitted to 
 the latter by the former. It is usual when matters 
 are referred, for the opinion of a third party, to make 
 such reference upon a statement of facts agreed upon 
 by both parties ; in the absence of such agreement, the 
 decision adopted by the referee can only be regarded 
 as a partial one, based upon the matter submitted by 
 tne one party, but not embracing all the facts in the 
 case. It is true that Messrs. Young & Anderson 
 have the opportunity of perusing the correspondence 
 between Brown, Gillespie & Co. and ourselves, but 
 we take exception to the r^ueries which are submit- 
 ted to Messrs. Young & Anderson upon this corres- 
 pondence, as avoiding some of the most important 
 features of the case, and thereby doing ourselves less 
 
 
37 
 
 than justice. We have yet to learn the grounds on 
 which Messrs. Young & Anderson have so readily re- 
 plied to a case submitted by one side only, und "with- 
 out a personal conference with yourself, on the mere 
 assumption that your return of the papers intimated 
 a consent to a decision being given in your absence. 
 We have reason lo believe that your knowledge of 
 the whole question in dispute between Brown, Gil- 
 lespie & Co. and ourselves being much greater than 
 that of Messrs. Young & Anderson, you would not 
 consider that the facts of the case would be fairly met 
 by a dry reply to the partial queries submitted 
 thereon, and we would ask you therefore to favor us 
 with an opinion upon a statement of facts agreed 
 upon by both parties in the dispute, consulting with 
 the other referees or otherwise as Messrs. Brown, 
 Gillespie & Co. may desire. 
 
 We are. 
 
 Yours truly, 
 
 KERR, BROWN & MACItENZIB. 
 
 Hamilton, 15th March, 1870. 
 
 MESSRS. KERR, BROWN & MACKENZIE, 
 
 Gentlemen, 
 
 I am in receipt of your favor of to-day with the 
 accompanying copies of correspondence, and beg to 
 eay in reply that I perused and returned to [Mr. 
 Anderson the documents referred in joint letter of 
 Mr Young and himself, making no comment thereon 
 to either of those gentlemen, but addressing Mr. 
 Adam Brown as per copy enclosed, from which you 
 will notice I could under such conditions see no good 
 likely to arise from reference ; if therefore Messrs. 
 Young & Anderson were cognizant of my having 
 
 
 I 
 
38 
 
 written in this strain, they were justified in conclud- 
 ing that it was not my wish to join in the report. 
 
 M:;- opinion all along has been, that the matter 
 should be referred to some one entirely ignorant of 
 the nature of the difficulty, I do not, however, feel 
 justified in shirking responsibility, anu will hold my- 
 self in readiness to give an opinion upon a statement 
 of facts agreed upon by both parties to this dispute, 
 consulting witl the other referees or otherwise as 
 Messrs. Brown, Gillespie & Co. may desire. 
 
 I am. 
 Gentlemen, 
 Yours truly, 
 
 JAlvLES TUENER. 
 
 Mr. Turner's enclosure addressed to Mr. Brown of 
 B. G. & Go. 
 
 Hamilton, 1st March, 1870. 
 
 My Dear Brown, 
 
 Whatever conversation J have had lately affect- 
 ing matters in dispute between your firm and that 
 of Messrs. Kerr, Brown & McKenzie has been with 
 yourself; under such circumstances I address you 
 personally in reply to the former's letter of 25th ulto. 
 
 As requested, I have read over the correspondence 
 and although prepared for it to some extent, I am 
 much distressed and exceedingly regret its tone. 
 
 You are well aware I should willingly have 
 been of service, and even now, could I in any way 
 assist in overcoming this deplorable estrangement 
 would gladly do so, I cannot however see any good 
 likely to result from an expression of opinion on the 
 terms proposed in annexed extract, and the more so 
 
 
39 
 
 as you informed me since my return from New York, 
 that some of your former creditors had already ex- 
 pressed themselves opposed to any settlement. 
 
 I am, 
 
 My Dear Sir. 
 Yours truly, 
 
 JAMES TUENEE. 
 Extract : 
 
 " We shall submit the matter to the original 
 "committee appointed at our meeting in February 
 " 1868, and should they consider that you are entitled 
 " to be preferred, we shall then submit the state of 
 " matters to all our creditors, and if they are unani- 
 "mous in recommending a similar course we shall 
 "forthwith hand you the amount." 
 
 Hamilton, March 16th, 1870. 
 MESSES. BEOWN, GILLESPIE & CO. 
 
 Sirs : 
 
 We forward herewith copies of a correspondence 
 which has passed between Mr. Turner and ourselves, 
 under date of yesterday. 
 
 We are of opinion that the answers of Messrs. 
 Young & Anderson to the queries propounded to them 
 do not meet the points involved in the differences 
 between your firm and ourselves ; we are surprised 
 that such queries should have been submitted to those 
 gentlemen in relation to our differences ; and we are 
 still more surprised that those gentlemen, in view of 
 the whole correspondence, should have so readily 
 replied to queries which obviously so partially embrac- 
 ed the subject in dispute; the more so as, unless we 
 have greatly misunderstood both Messrs. Young & 
 Anderson, we have had reason to believe that they 
 
40 
 
 are not prepared to express an opinion that the justice 
 of the case would be met by the replies that they 
 have made to those queries. 
 
 Messrs. Young & Anderson are of opinion that 
 notes endorsed by us at your solicitation and— if our 
 statements are worthy of credence— against our own 
 wishes, and purely with the desire to benefit your- 
 selves — are not accommodation paper ; we agree with 
 them that they are not so " in the ordinary sense of 
 the term ; " but we think that the facts would have 
 admitted a more ample explanation of their character, 
 than their reply would convey. 
 
 Your referees (Messrs. Y. & A.) express an opinion 
 that our firm has " no better claim to the money 
 than any of your other creditors," had your queries 
 been impartially laid before them, you rould not 
 have asked them—" Would we be warranted under 
 the circumstances in acceding to Messrs. Kerr, Brown 
 & McKenzie's demands by paying them the sum ? " 
 but the query would have been—" The money is 
 lying in our hands, to whom are you of opinion should 
 it 7ioiv^ be paid ; and if to the creditors, by what method 
 shall it be so paid, seeing that yourselves, as the ori- 
 ginal committee of the creditors, have recommended 
 that it should not be distributed among such creditors ?" 
 Our demands upon you have been based upon the as- 
 sumption that the creditors have declined to accept 
 these monies, and that you are not justified in applying 
 them to your own use ; our controversy has not been 
 between ourselves and the creditors, but between 
 ourselves and yourselves ; we should never have ob- 
 jected to the payment of these monies to vour creditors ; 
 we retired the note in question that they might have 
 the benefit of such retirement, and it was only because 
 the creditors had declined to receive that benefit that 
 
41 ' 
 
 we put in our claim to its proceeds. If you can see 
 your way to an immediate payment to the creditors 
 of thase monies, we shall be quite satisfied, but we 
 dispute your continued enjoyment of them under a 
 specious proposal to pay your creditors in full at some 
 future and indefinite period, and we stigmatize such a 
 proposal — your enjoyment of the monies in the mean- 
 time — as unfair to all parties, and especially to our- 
 selves, whose rank we deem to be far different from 
 that of an ordinary creditor, Messrs. Young & Ander- 
 son to the contrary notwithstanding. 
 
 We have always been willing to leave the matter 
 in dispute to indifferent third parties, upon ^ a case 
 submitted by both disputants, but we continue to 
 view your proposal to be guided by the unanimous 
 consent of creditors as a mere evasion, and we consider 
 the readiness of your present referees to reply to your 
 very partial queries, without personal interview with 
 Mr. Turner, and without consultation with the other 
 party engaged in the controversy, manifests a dispo- 
 sition so far removed from iiidijference as to preclude 
 them from a further consideration of the subject on 
 behalf of the parties conjointly. 
 
 We are. 
 Yours &c., 
 
 KEEE, BROWN & MACKENZIE 
 
 Hamilton, 19th March, 1870. 
 
 MESSES. KEEE, BEOWN & MACKENZIE, 
 
 Hamilton, 
 
 Gentlemen : 
 
 We are in receipt of yours of 16th instant with 
 enclosure as stated. 
 
 Your repeated assertion that the notes in question 
 
42 
 
 were for our exclusive benefit can only be again denied 
 ^ad your statement been correct what need was there 
 lor you to endorse more than ^15,000 of our paper 
 
 7 Q^n'nnn''^^*^*'!?.^^*- ^ou however endorsed 
 for 130,000 getting $15,000 yourselves thereby mak- 
 mg as much use of our name as we of yours the ac- 
 commodation being as much to you as to ourselves. 
 
 In submitting to the original committee the cor- 
 respondence we have simply carried into eifect our 
 intention conveyed to you in former letters. We 
 asked their replies to the only points that we con- 
 sidered of consequence. The statements of both 
 parties being in their hands and they cognizant of 
 the facts of the case from the beginning,-more com- 
 petent judges could not be wished for, and we only 
 regret that Mr. Turner did not plax^e his views in 
 writing— whatever they may be. 
 
 It was scarcely to be expected that the questions 
 we asked the committee should have been of your 
 dictation as you seem to have expected. 
 
 Your are as well aware as ourselves that it did 
 
 ^"^.u !r ^^ "P^"^ ""^ *^ ^^^ *^^ committee what to do 
 with the money gained to our Estate by your con- 
 senting to rank only for your just dues. This was 
 answered by them two yerrs ago, to the effect that 
 It should be retained by the Estate, which was con- 
 curred m by all creditors of which you were apprized 
 at the time. It puzzles us to learn by what reasoning 
 you assume that this money was offered to and declined 
 by our creditors for in our letter to you of 5th March 
 l«b8 we write that " we are advised by our solicitors 
 
 that were we to divide the amount thus gained to 
 ^^ the Estate (some $2,300) among the creditors we 
 
 would invalidate our deedof discharge, we therefore 
 
43 
 
 It 
 
 " see no other course open but to retain the amount and 
 " we hope in this you will concur." 
 
 You will excuse our borrowing some of your 
 thunder, and exemplifying as follows in relation to 
 your last production, see your letter of 14th February, 
 " the fact is that your letter lacking sincerity and 
 " truth overreaches itself which we illustrate by your 
 " remarks thus." 
 Extract from your letter of 9 th 
 March 1868. 
 
 "We feel ourselves justified 
 however in presuming that 
 the monies realized by the re- 
 tirement of the note will find 
 their way into the proper 
 channel eventually." 
 
 29 Jan'y, 1810. 
 
 "Eeferring to our former 
 correspondence on the subject 
 of the $10,155 note and es- 
 pecially to the hint which we 
 offered in our letter o:l' 9th 
 March 1868, we venture to 
 hope that you are now pre- 
 pared to pay over to us the 
 monies which you have ac- 
 quired by our retirement of 
 Buch note believing that the 
 Estate is sufficiently wound 
 up to enable you to do so 
 without inconvenience." 
 
 8th Feb'y. 1870. 
 "We are unwilling to be- 
 lieve that you will continue 
 to urge futile objections to 
 our claim and now distinctly 
 call upon you for the payment 
 of the money. ^' 
 
 How do you reconcile these differences ? 
 
 Extract from your letter of 
 March 16, 1870. 
 
 " Our demands upon you 
 have been based upon the as- 
 sumption that the creditors 
 have declined to accept these 
 monies. * * * 
 
 " We should never have ob- 
 jected to the payment of these 
 monies to your creditors. 
 We retired ihe note that they 
 might have the benefit of such 
 retirement and it was only 
 because the creditors had de- 
 clined to receive the benefit 
 that we put in our claim to 
 its proceeds." 
 
44 
 
 In yours of 9th March 1868 you expected us to 
 hold this sum for your future benefit and your tie- 
 mand for the money in yours of 29th January last 
 shows that you hoped we had reserved it for you 
 and yet you assume that we had also offered it to our 
 creditors. We could not hope to divide the amount 
 amongst our creditors and keep it for you as well. 
 This is a rule in Arithmetic we have yet to learn. 
 
 It appears to us that having failed to get the 
 whole amount to yourselves you are suddenly seized 
 with the greatest anxiety for the interest of those 
 creditors of ours whom two years ago you did your 
 best to get an unfair advantage over. 
 
 It is morally refreshing however to see the change 
 in your views from demanding the whole amount for 
 yourselves to expressing the greatest concern that all 
 should share alike. It pleases us much to learn of 
 your changed views in this respect, as they now ex- 
 actly accord with ours expressed to you in former 
 communications viz : that we desired no preferences 
 and hoped yet to pay 20s on the £ which would of 
 course involve the payment of the monies in dispute. 
 
 The payment however of even a portion of our debts 
 will not be hastened by any pressure you may bring 
 upon us and as neither your action in the first place 
 nor subsequent abusive correspondence deserves any 
 courteous treatment at our hands it is not likely that 
 we shall gratify your curiosity as to the date of such 
 first payment. 
 
 You now express your desire to leave the mat- 
 ter to be adjusted by third parties. What is there 
 to arbitrate upon ? You do not now wish to be pre- 
 ferred but claim that you retired the note for the 
 benefit of all our creditors. This somersault relieves 
 
45 
 
 UB entirely from the necessity of arbitration or any 
 further correspondence. 
 
 We yet fail to see that even supposing your as- 
 sumption that our creditors had refused to partake 
 of these monies, by what reasoning the whole amount 
 should revert to you, the more so as your first action 
 was against all interests but your own. You tried 
 to be better off than other creditors, and failing this 
 you are now much concerned that they shall have 
 equal rights with yourselves, which is the happy re- 
 sult that we have been endeavoring to bring about 
 in this controversy. 
 
 We can afford to allow your remarks about in- 
 sincerity, evasion, &c., &c., to pass unnoticed, as we 
 will not bandy such compliments with you, and 
 would suggest the propriety of your attending in 
 future to your own business and not worrying your- 
 selves by interfering in ours. 
 
 We are. 
 
 Gentlemen, 
 Yours, &c., 
 
 BEOWN, GILLESPIE & CO. 
 
 Hamilton, March 21st, 1870. 
 MESSES. BEOWN, GILLESPIE & CO. 
 
 Sirs : 
 
 Yours of 19th instant is received, and you must 
 permit us to say that both style and matter do you 
 but little credit. 
 
 We would not pay your mental powers so small 
 a compliment as to suppose that you really misunder- 
 
46 
 
 stood us, when you continue to deny our statement 
 that the endorsation of your paper \t as " made in 
 your exclusive interest ; " neither of us can be ignorant 
 of the fact that we mutually shared the proceeds of 
 the discounted paper, but we have so repeatedly 
 shewn in our correspondence that we intend to 
 convey the assertion that we did not seek this 
 advantage, that we did not need it, and would not 
 have availed ourselves of it excepting for the imrpose 
 of obliging you, that you cannot misunderstand us on 
 this point ; and your continued pretence to do so, we 
 can only attribute to a conviction of the weakness of 
 your position, and consequent desire to evade the 
 true points at issue between us. 
 
 It would be consistent with ^Zmngenuous minds 
 to submit to an arbitration, such points only as such 
 minds " considered of consequence " to the establish- 
 ment of tJiei)- own position, for our own parts we 
 should not desire that the questions proposed to the 
 committee ; should be such as ice might dictate, but 
 we had a right to expect, from parties desirous of 
 fair dealing, that the question submitted to or enter- 
 tained hy a Eeferee, should have been only such as 
 would fairly meet both sides of the question, and we 
 think that all right-reflecting persons will feel that 
 a decision based upon a partial view can possess but 
 little value. 
 
 So far from considering that it did not devolve 
 upon you to ask the committee what to do with the 
 money gained to the estate by our retirement of the 
 note, we are of opinion that it was the only question 
 left for consideration — upon your determination not 
 to pay it to us ; it is a question which has yet to be 
 asked before a larger tribunal than that of the 
 
47 
 
 « original committee," and the answer will be found 
 to be very little in accordance with your present 
 rapacious views. We have seen no decision from any 
 one— committee or otherwise— that the monies in 
 question " should be retained by the estate," the 
 only allusion to the subject with which we have been 
 favored, or have ever heard of, is that of the report 
 of the "original committee," under date of 21st 
 February, 1868, which states :— " Since the meeting 
 of creditors on the 19th instant the ranking of one 
 creditor has been reduced from $10,155 to half that 
 amount, the committee are of opinion that the amount 
 thus saved to the estate would effect so trifling a 
 change on the total dividend that it should not 
 render any new proposition necessary." 
 
 This report merely recommends that the terms 
 of settlement agreed upon by the creditors should 
 not be disturbed ; it makes no allusion to the final 
 disposal of the monies acquired by '' the ranking ot 
 one creditor " to a reduced amount, naturally leaving 
 its disposal to the parties from whom these moniee 
 were obtained, and to those in whose interest it was 
 so obtained. 
 
 You have expended much useless labor and 
 not a little discreditable language, in your endeavor 
 to convict us of inconsistency, in first^ demanding the 
 payment of these monies to us, and in subsequently 
 expressing our concurrence that they should be paid 
 to your creditors. Those who may hereafter have 
 the opportunity of forming a judgment upon the 
 whole question between us, will not fail to see our 
 position throughout. You are in the possession of 
 some $2500 derived from us at your earnest solicita- 
 tion, and yielded by us for the purpose of protecting 
 
48 
 
 you from insolvency ; the disposal of this money 
 when so relinquished by us, Wiis presumably for the 
 benefit of the creditors ; upon their refusal to disturb 
 the settlement determined upon, and consequent 
 non-acceptance of these monies, we take it for granted 
 that they will revert to us, but awaiting the period 
 when you will have realized upon your assets, we 
 content ourselves under date of the 9th March, 1868, 
 "in presuming that the monies realized by the 
 retirement of the note will find their way into the 
 proper channel eventually." Your composition of 
 lis. 6d. in the £ having been paid, we renew our 
 application for these monies, and, in doing so, it is 
 evident that " our demands upon you have been 
 based upon the assumption that the creditors have 
 declined to accept these monies, and that you are not 
 justified in your determination " to retain the 
 AMOUNT," as in your letter of 5th March, 1868, you 
 propose to do; we assure you, nevertheless, that 
 were tht case otherwise — that were the monies about 
 to be distributed to creditors — we should not be 
 found opposing such an arrangement, or preferring a 
 claim, to the prejudice of such creditors. We see 
 nothing inconsistent in all this, and regret, for your 
 own saJce, that you have not displayed more logical 
 discernment, and that you should have exhibited a 
 desire to prop up a bad cause by resorting to the use 
 of language which you are pleased to designate as 
 " THUNDER," but which we fear would be more gen- 
 erally regarded as scurrilous and disreputable. 
 
 "We fear that from the conduct you have evinced 
 throughout this correspondence, there is little hope of 
 our "hastening any payments" either to your credit- 
 ors or ourselves, " by any pressure " that we may 
 
 ^By^» ^^ ■ ' Hgj T gf - B iW W-- - 
 
40 
 
 bring upon you ; we are quite willing to be judged 
 by public opinion as to the rectitude of our own 
 proceedings, and we must leave it to the same 
 tribunal to say whether you are justified — we do not 
 say in a failure, even though it should eventuate in 
 realizing large profits to yourselves, but in the 
 further application of |2500 to your own private 
 purposes, which have been derived from us to save 
 you from ruin. 
 
 We are, 
 Yours &c., 
 
 KEER, BROWN & 3HACKENZIE. 
 
 Hamilton, March 22nd, 1870. 
 
 MESSRS. KERR, BROWN & MACKENZIE, 
 
 Hamilton. 
 Gentlemen : 
 
 We are in receipt of your favor of 21st inst., 
 and whilst not replying to your assertions, we wish 
 it on record that we by no means admit the truth of 
 anything therein contained, all the points worthy 
 of discussion have already been answered and dis- 
 posed of, so that the subject is now thoroughly 
 exhausted. It is and has been our intention from 
 the first to divide the sum in question (|2,500,) 
 rateably amongst all our creditors in equity, so soon 
 as we found it convenient after our composition was 
 paid — this is, we believe, in accordance with your 
 present views, and such being the case, we see no 
 need of further correspondence, which can only lead 
 to personal recriminations resulting in no good. 
 
 Yours &c., 
 
 BROWN, GILLESPIE & CO. 
 
50 
 
 The Last letter of Messrs. Brown, Gillespie & Co. 
 indicated a final determination to refuse us the justice 
 which we sought at their hands, yet, even at this 
 stage, we were not without tlie hope that a reference 
 to third parties might lead to an adjustment of our 
 difficulties, and, with this view, we addressed the 
 following letters to the parties herein enumerated : 
 
 Hamilton, 29th March, 1870. 
 
 DONALD McTNNES, Esq. 
 JAMES TUllNEE, Esq. 
 
 Dear Sirs : 
 
 You are aware that a correspondence has been 
 going on for some time past between Messrs. Brown, 
 Gillespie & Co. and ourselves, relative to the disposal 
 of a sum of money in their hands, under circumstances 
 which the perusal of our several letters herein en- 
 closed, will unfold to you. 
 
 Messrs. Brown, Gillespie & Co. have obtained from 
 Messrs. Young & Anderson, two members of the 
 " investigating committee," certain replies to queries 
 propounded by the former to the latter ; but we are 
 of opinion that the queries so submitted, were not 
 such as the correspondence fairly demanded, and can- 
 not be deemed to be a judgment upon the points at 
 issue. 
 
 We are naturally anxious to learn the opinions of 
 others upon the merits of the tohole case, and we es- 
 pecially feel that we should not permit ourselves — 
 without an endeavor on our part to stand acquitted 
 
61 
 
 of such charges — to romain under the stigma which 
 Messrs. B., G. & Co, endeavor to cast upon us, of 
 being " wanting in strict commercial integrity," and 
 in " good faith towards them," and with " an attempt 
 to take an advantage." 
 
 As Merchants of long standing in this city, and as 
 mutual friends of the parties engaged in tlie present 
 controversy, we solicit your opinions on the points at 
 issue ; trusting that, although the position which we 
 ask you to assume is not that in which you would 
 yourselves seek to be placed, beneficial results may 
 follow from the expression of your views thereon. 
 
 We have no desire, by any remarks r^f our own, to 
 lead you to a partial judgment of the case, but would 
 endeavor succinctly to lay before you the leading 
 facts as the correspondence has disclosed them. 
 
 In July, 18G7, Messrs. Brown, Gillespie & Co. and 
 ourselves made purchases of sugar in Halifax, the 
 payments for which would fall due at similar periods; 
 but not on joint account, or in any way dependent on 
 each other ; each was a debtor Ijy himself for his own 
 purchases, and not otherwise. 
 
 Messrs. Brown, Gillespie & Co. proposed to us to 
 make our several pa^nnents by means of discounts 
 from the Bank of Montreal— say £0000 sterling ; the 
 discounts to be made in three several notes of ^10,000 
 eaeh, of which they were to be the makers, and our- 
 selves the endorsers ; we assert— and the truth of our 
 assertion is not called in question — that we did not 
 require or desire this Bank accommodation, and 
 should have much preferred the settlement of our own 
 purchases by ourselves, rather than incur a risk of 
 loss, which, in the contingency of the failure of the 
 
 I 
 
J'^^'"-' 
 
 52 
 
 makers of the note, would— and as it has proved, has 
 — follen upon us. We, upon more than one occasion, 
 had been called upon to grant accommodation paper 
 to the firm in question, and from the close connection 
 which existed between certain members of our re- 
 spective firms, and from the kindly feeling which had 
 heretofore been maintained, we were induced to 
 accede to their proposal in the present instance; from 
 the fact of its yielding an equal advantage to eacu, 
 the discount cannot be termed commercially " accom- 
 modation," but nevertheless, we regarded, and still 
 regard the transaction as paper given for the accom- 
 modation of the firm seeking it. 
 
 The continsencv which we would have avoided — 
 that of the failure of the makers of the notes-— 
 occurred previously to the retirement of the third 
 note • and from the consequent inability of Messrs. 
 Brown, Gillespie & Co. to retire such note, conjointly 
 with ourselves, we became liable for the whole 
 amount, and upon its payment by us vould have 
 ranked upon their estate for the sum of ^oOOO, odds. 
 
 Feeling the hardship of our position— seeing that 
 the note did not represent a mercantile transaction 
 between us, and that we had been induced reluctantly 
 to enter into it, we considered the practicability of 
 avoiding the loss impending over us, and^ consulted 
 with our solicitors and others upon the subject. Our 
 solicitors' views will be seen by reference to their 
 letter of 7th Feb'y, 1S68. This letter was shewn to 
 one or more of the partners of Brown, Gillespie & Co. 
 and we assert— hitherto without denial— that they 
 approved of the course proposed. The local Agent of 
 the Bank here encouraged our application to the 
 Head Office, and we had reason to believe that that 
 
53 
 
 Bank would have facilitated our views. It would 
 be idle to enquire individual opinions upon the ex- 
 pediency of the course proposed, being av/are that 
 upon this subject many men may entertain " many 
 minds," but we would ask you whether the view- 
 expressed by Messrs. Brown, Gillespie & Co., in their 
 letter of the 12th Feb. last, that they have no doubt 
 that what we did we considered to be in " i>erfect 
 honor ;" or their subsequent expressions of a want of 
 " commercial integrity," and of our doing our best to 
 get an unfair advantage, are the more suitable ternis 
 to apply to the course which we took, with their 
 approbation. In reference to the retention of the 
 monies acquired by our subsequent retirement of the 
 note, the correspondence so fully sets forth the facts 
 of the case that we need not do more than direct 
 your attention to them. 
 
 The note was retired by us for the benefit of the 
 creditors, and it was only upon their relinquishment 
 of claim to its proceeds, that we assumed to have an 
 interest in them ; at present these proceeds are enjoyed 
 by Messrs. Brown, Gillespie & Co , and in their letter 
 of 5th March, 1868, and subsequently, they declare 
 their determination to retain them, i. conclusion which 
 we consider not only to be ungenerous to ourselves, but 
 imjust towards all imrties. In a letter received from 
 them, under date of 2?nd inst., Messrs. B., G. & Co. 
 have materially altered the aspect of the case, and 
 had they entertained and expressed the views which 
 they now enunciate, at an earlier period of the corres- 
 pondence, much of the acrimony which has passed 
 between us might have been avoided. Messrs. B., G. 
 & Co., in their letter, state "it is and has been our 
 " intention from the first to divide the sum in question 
 " ($2500,) rateably among all our creditors in equity, 
 
54 
 
 " so soon as we found it convenient after our composi- 
 " tion was paid." We cannot give them credit for 
 sincerity in this statement, as their earlier letters so 
 manifestly shew a contrary intention ; nevertheless, as 
 we ourselves state, under date of the 16th inst., " our 
 " demands upon you are based upon the assumption 
 " that the creditors have declined to accept these 
 "monies, and that you are not justified in applying 
 " them to your own use," there remains so slight a 
 difference between us as to leave almost nothing in 
 contention on this point. We do not understand the 
 term "creditors in equity" — unless Messrs. B., G. & 
 Co. especially regarded ourselves as such — but we 
 think we may content ourselves with referring to 
 you succinctly the question which we think should 
 have been put before Messrs. Young & Anderson — 
 would Messrs. B., G. & Co. be warranted in retaining 
 to their own use, as they have heretofore proposed to 
 do, tiie sum of $2500, odd, derived from us under the 
 circumstances narrated in the correspondence, under 
 a pretext of paying to their creditors at an indelinite 
 period, their full indebtedness of 20s. in the £, or 
 should they rather pay this sum over to us as having 
 a better claim to the monies than they themselves 
 have? 
 
 Although the last determination of Messrs. B., G. 
 & Co. to distribute the sum among the creditors settles 
 the question of our respective claims, providing there 
 is no misunderstanding about " equity creditors," — 
 we are constrained to ask the query which we 
 now place before you, in the belief that you will sus- 
 tain us in the position that we have throughout 
 assumed, that — tlie creditors having declined to 
 accept the sum in question, it equitably belonged to 
 
 
 B., 
 
 a. A. n, 
 
 \A . l-C \^- 
 
 '0. 
 
55 
 
 It seems to us that, finding that they can no long- 
 er retain the money to their own use, without a 
 sacrifice of reputation, Messrs. B., G. & Co. have at 
 length resolved to fierce it upon the creditors at the 
 rate of a cent or so in the dollar, rather than return 
 it to us. We do not desire to enter into competition 
 with the creditors for this money, but we are anxious 
 to be assured that we have been justified in demand- 
 ing it, as between ourselves and our correspondents. 
 
 We are. 
 
 Yours truly, 
 
 KEEE, BEOWI^ & MACKENZIE. 
 
 Hamiiton, 2nd Sept., 1870, 
 
 MESSES. KEEE, BEOWN & MACKENZIE, 
 
 Hamilton, 
 Gentlemen : 
 
 We delayed answering yours of 29th March, in 
 the hope that a satisfactory arrangement of the 
 difiiculties existing between you and Messrs. Brown, 
 Gillespie & Co., might in the meantime, be arrived 
 at, and from an earnest wish not to endanger a con- 
 summation so much to be desired. 
 
 We gather from the correspondence, as undisputed 
 facts, that the transaction, out of which your claim 
 arose, was entered into for the convenience and at 
 the request of Messrs. B., G. & Co. ; that being 
 naturally desirous of avoiding a loss on a transaction 
 from which you had no gain, you consulted your 
 solicitors, and were advised that the holders of the 
 paper could rank on their estate for the full amount, 
 and you acted upon that opinion with the approbation 
 
66 
 
 of Messrs. B., G. & Co., and induced the holders to 
 claim for the full amount on their estate. 
 
 In their letter to you of the 5th March, 1868, in 
 reply to yours of the 27th of the previous month, 
 they admit that you had waived your legal rights in 
 order to save them from insolvency ; that they had 
 no claim on you as a firm to request such a concession, 
 and that after the acceptance of the composition by 
 their creditors that concession had been made at the 
 pressing instance of themselves and others, in their 
 interest, to avoid absolute ruin to themselves. 
 
 We observe in a later portion of the correspondence 
 they depart from this position, and appear to question 
 whether, under certain circumstances, you would 
 have been legally entitled to enforce your claim in 
 this way, but a very careful perusal of Mr. Blake's 
 opinion seems to us to establish that that position 
 could not have been interfered with at law or in 
 equity, even if the estate had gone into insolvency. 
 
 At the time this pressure was brought to bear, the 
 proposal of Messrs. B., G. & Co., for a composition, 
 had been presented and accepted — the ranking in 
 respect of your claim was for |10,155 — and when you 
 consented to forego your legal position and reduce 
 this ranking to one-half the amount, no increase was 
 made in their proposed composition, this difference, 
 therefore, would not go into the pockets of the gen- 
 eral creditors, but would become the property of 
 Messrs. B., G. & Co., after 'payment of the composition 
 agreed on. 
 
 This once accomplished, it appears to us to admit of 
 no doubt, that the sum thus saved should morally 
 and equitably belong to you. 
 
57 
 
 The creditors might have claimed it, but the amount 
 was so small that the committee of investigatiou 
 recommended that the Dividend Sheet should not be 
 disturbed, and the creditors waived any claim to 
 participate in it— and they are, no longer creditors. 
 We cannot think that it can admit of serious question 
 that the money shDuld be yours, as it was originally, 
 and as it has always remained, as heticeen yourselves 
 and Messrs. B., G. & Co., whatever objections might 
 have been urged by other creditors. 
 
 The question is disencumbered of any difficulties, 
 which might possibly have been urged, with more or 
 less force, had the rights of third parties intervened. 
 Here no such question arises, and we incline to think 
 that much of the misapprehension, under which 
 Messrs. B., G. & Co. have been laboring, has arisen 
 from their losing sight of the fact, that no question 
 arises here betioeen creditors, all creditors have re- 
 ceived what they voluntarily agreed to receive, and 
 Messrs. B., G. & Co. find themselves possessed of a 
 sum of money, which, but for your concession, would 
 have been paid to you. Can it admit of doubt, how 
 such money should be disposed of ? We think not. 
 
 It is perhaps unnecessary, after this statement of 
 our opinion, to answer definitely the queries stated 
 on page 2 of your letter to us, because so far from 
 your evincing any want of good faith or strict com- 
 mercial integrity, or desiring to take any advantage, 
 we are of opinion that you acted most generously in 
 foregoing a legal advantage, to save your neighbors 
 from disastrous consequences, and we think it only 
 necessary to place tae whole matter, in the light we 
 have endeavored to place it in, before Messrs. B., G. 
 & Co., to induce those gentlemen to take a similar 
 
58 
 
 view, or at all events, to leave it to the arbitrament 
 
 of disinterested parties. 
 
 We are. 
 
 Gentlemen, 
 
 Yours truly, 
 
 D. McINNES. 
 JAMES TUENEE. 
 
 Hamilton, Sept. 3rd, 1870. 
 ADAM HOPE, ESQ., 
 
 Dear Sir, 
 
 On the 28th March last, we addressed a letter 
 to Messrs. D. Mclnnes and James Turner, on the 
 subject of our dispute with Messrs. Brown, Gillespie 
 & Co., requesting them to peruse the correspondence 
 which had passed between ourselves and B., G. & Co., 
 and the opinion of Mr. Blake, in relation to the same, 
 and also requesting them to give us their opinion 
 upon the correctness of our position in demanding 
 that the money should be repaid to us, in default of 
 the creditor's acceptance of the same; and under all 
 the circumstances detailed in the correspondence. 
 
 In consequence of the frequent absence from town 
 of one or other of the above-named parties, there has 
 been much delay, but we believe they are now pre- 
 pared to favor us with their opinion, we would feel 
 much satisfaction if you would add an expression of 
 your own views to theirs, as we naturally desire to 
 do that which is right and proper in the estimation 
 of our fellow-merchants. 
 
 We are. 
 
 Yours truly, 
 
 liEEli, BEOWN & MACKENZIE. 
 
59 
 
 Hamilton, 6th Sept., 1870. 
 
 MESSRS. KEEE, BROAYN & MACKENZIE. 
 
 Hamilton. 
 Dear Sirs : 
 
 I have received your letter of 3rd inst., and I 
 have to say that I have read the correspondence 
 which has passed between you and Messrs. Brown, 
 Gillespie & Co., relative to the way in which you 
 ranked in their composition deed, in January, 1868, 
 for a claim you had against them, as the makers of a 
 note, on which you were endorsers for ^10,155. 
 
 The facts of the case appear to me, as follows, viz : 
 
 1st. B., G. & Co. made a note in your favor for 
 $10,155, which you endorsed, and which was dis- 
 counted at the Bank, a:nd the proceeds of which, each 
 of you got half. 
 
 2nd. B., G. & Co. stopped payment before the note 
 fell due, and you procured the Bank to rank on the 
 estate of B., G. & Co. for the full amount of the note, 
 and on this ranking, a composition was offered by B., 
 G. & Co. and accepted by the creditors. Before, how- 
 ever, all the creditors had signed the formal Deed of 
 Composition and Discharge, an objection was taken 
 by some of the creditors to the Bank's ranking for 
 more than half the amount of the note, and at the 
 solicitation of B., G. & Co., you consented to waive 
 what you held to be your legal right, and agreed to 
 rank for said one-half amount of the note, and on 
 which you were subsequently paid the composition. 
 
 3rd. You maintained that you had a legal right to 
 rank, through a third party, for the whole amount of 
 the note, and receive your composition dividends 
 
60 
 
 thereon, and thus save yourselves from loss, and that 
 you only consented to forego your legal position, at 
 the urgent request of B., G. & Co , v/ho represented 
 that it would be ruin to them, unless you agreed to 
 alter your mode of ranking. 
 
 4th. B., G. & Go's, composition was offered to and 
 accepted by their creditors, based on your original 
 ranking for the full amount of the note. You have 
 only been paid the composition on one-half of the 
 amount of the note, and it is understood that the 
 creditors have waived any claim to the composition 
 on the other half, and the funds for the same now 
 remain in the hands of B., G. & Co. 
 
 5th. You demand that these unappropriated funds 
 should be paid over to you ; and on the other hand, 
 B., G. & Co. hold, that such funds, if they do not 
 legitimately belong to themselves, should, at least, be 
 divided rateably among their creditors. 
 
 I have read the carefully prepared questions, fairly 
 embracing the whole matter at issue, and which were 
 submitted to Mr. Edward Blake, Q.C., admittedly one 
 of the most able and eminent members of the Upper 
 CanadaBar, and Mr. Blake,in his written opinion there- 
 on, clearly sets out that you were entitled to rank, 
 through a third party, for the full amount of the note, 
 and could have collected the composition dividends 
 thereon, and that no court of law or equity would 
 have interfered, to preve^xt you from doing so. Now, 
 if Mr. Blake is correct in the opinion he gives, and 
 from his great legal knowledge and high professional 
 standing, I think I am justified in concluding that he 
 must be correct, then there can be no question, under 
 all the circumstances of the case, that you have a clear 
 moral claim to the unappropriated dividends, on the 
 other half of the note, and I think you are fairly 
 
61 
 
 entitled to. ask B., G. & Co. to pay you tlie amount 
 
 thereof. 
 
 I am aware B., G. & Co. have obtained a legal 
 opinion adverse to that of Mr. Blake, and this, coupled 
 with the relationship existing between members of 
 the firms, renders the question one of very consider- 
 able delicacy, and I can easily appreciate the difficulty 
 which a sensitively-minded person might experience 
 in arriving at a satisfactory solution of the matter in 
 dispute, satisfactory to his own mind and to that of 
 interested parties. 
 
 I see, however, no unsurmountable obstacles to the 
 settlement of this matter, aside from the feeling that 
 has most unfortunately pnd most unnecessarily arisen 
 in its preliminary discussion, and I would here say, 
 that I cannot too strongly express my conviction that 
 it is one of those cases where both parties should be 
 prepared to exercise the greatest amount of toleration 
 and forbearance, for the opinions and views of each 
 other. It is not, I submit, a question for either party 
 to dogmatize upon. It originates in a simple legal 
 question, and that once solved, the rest, to a fair and 
 candid mind, is all plain sailing. 
 
 I would venture, even at this stage of the dispute, 
 to suggest, that the matter as submitted to Mr. Blake, 
 be referred to two of the most eminent counsel learned 
 in the law, in the City of Toronto, and mutually 
 chosen, with the understanding, if Mr. Blake's opinion 
 be confirmed, that the money should be paid to you, 
 but, if otherwise, then that it shall be retained by 
 B. G. & Co. 
 
 With these remarks, 
 
 I am. 
 
 Dear Sirs, 
 
 Yours truly, 
 
 ADAM HOPE. 
 
62 
 
 Hamilton, Sept, 6th, 1870. 
 
 Dear Sir : 
 
 You are aware that, for some time past, a corres- 
 pondence has been going on between Messrs. Brown, 
 Gillespie & Co. and ourselves, arising from a trans- 
 action entered into before their failure, and from 
 their retention of monies we consider rightfully to be- 
 long to us. 
 
 In their letters, Messrs. B., G. k Co. use expressions 
 toward us which we consider uncalled for and unwar- 
 ranted ; and being of course desirous of standing well 
 with our neighbors generally, are anxious to have 
 the views of those whose opinions we value, as to the 
 strength of our position in this matter. 
 
 The transaction, at the outset, may appear purely 
 one of business, and somewhat out of your province to 
 analyze, it has now, however, acquired peculiar 
 features. If you will kindly peruse the correspond- 
 ence herewith enclosed, and pass your opinion upon 
 its merits, we know it will be an honest and we 
 believe a correct one. 
 
 We should not likely have addressed you now, but 
 for a note you will find in the correspondence signed 
 by Messrs. Young & Anderson, and will be glad if 
 opinions quite as valuable as theirs, be found to differ 
 from them. 
 
 We are, 
 Respectfully yours, 
 
 KEEE, BE0W:N" & MACKENZIE. 
 
 To E. CAETWEIGHT THOMAS, ESQ. ) 
 
 Sheriff, &c. J 
 
63 
 
 >. 
 
 Hamilton, Sept. 7th, 1870. 
 Dear Sirs : 
 
 Under yesterday's date, you request ine to peruse 
 the correspondence which has taken place between 
 yourselves and Messrs. Brown, Gillespie & Co., and 
 to express my " opinion upon its merits." 
 
 My near connection with a member of your firm, 
 and the cordial, social relation which I hold with all 
 the parties in the controversy, would furnish me with 
 some excuse for declining to accede to your request. 
 I feel, too, that I am exposed, with some degree of 
 justice, to the imputation that my judgment may lean 
 too much toward the cause of my own connection. 
 
 I have always held the opinion, however, that we 
 are not selfishl}^ to seek our own ease, but that each 
 is bound to the other to promote the general welfare 
 of all ; and, therefore, when a serious difficulty has 
 arisen between members of the mercantile community, 
 hitherto in good standing, it behoves each and all, 
 when called upon, to endeavor to promote the ends 
 of justice between them ; and in the hope that I may 
 be instrumental in efiecting a just issue between the 
 parties, I accept the call which you have made upon 
 me. 
 
 I have perused the whole of the correspondence in 
 the case submitted to me, with great care, and with 
 an earnest desire to be impartial, but it has affected 
 me so strongly, with a conviction of the grievously 
 false position in which Messrs. Brown, Gillespie & Co. 
 have placed themselves, that I find it almost impossi- 
 ble to give expression to my views in moderate terms. 
 
 Messrs. B., G. & Co. seem unable to contradict your 
 repeated assertion, that the accommodation of en- 
 
64 
 
 dorscd paper for your several payments to your 
 scveral-not conjoint-creditors, was sougl.t by them- 
 BC ves and I think tliere is no room to doubt tliat 
 your endorsation of tlie notes in question was given 
 &\ge them, rather than f-m a desire o procure 
 for yourselves a Banking advantage. This tact, as 
 the basis of the whole controversy, forms, in my 
 mhid a very important feature in the case, and gives 
 vou a very strong cause in the appeal which you 
 S^kc fir the return of the monies in demand. The 
 rvment of tliis money, which you claim, is resisted, 
 ?n the first place, on the ground that you are regard- 
 ed by Messrs. B.,G. & Co. as occupying *« Position 
 of creditors of the estate, and on this point they take 
 ™sHions severally contradictory to each other. In 
 Cr letter of the^5th March, 1868, Messrs. B G. & 
 Co" see no other course but to r.Ham the «'"0««« ^ 
 au;stion in that of the 12th February 1870, they 
 Sre themselves to be " morally bound to pay all 
 tbo^re creditors in equity, twenty shillings in the 
 Sind'- n hat of the 23rd February they regard 
 Cheered tors as having " the best right to be con- 
 sulted" a to the distribution of the monies in demand ; 
 rt tbT of the ''2nd March last, they remark 
 ?r\ "u if and has b^en our intention from the first, 
 ^to » ^e sum in question, ($2500) rateably 
 «rmon4tallour creditor in equity so soon as we 
 « fZd it convenient, after onr composition was paid. 
 
 These several letters contradi=t each other, in that 
 they Sr. ; in one, a proposal to retain the amount^ 
 in arother, an intention to pay 20s in the £,y'l^f 
 In a condition to do so ; in a third, the recognition of 
 «rmtv to consult the creditors, as to the distribution 
 rfthJmonS in demand ; and in the last, a declara- 
 
65 
 
 tion that it has alwaija been the intention of Messrs. 
 B., G. & Co , " to divide the sum in (jucstion ($2500) 
 rateably, as soon as convenient, after the composition 
 was paid." I cannot fail to observe that, even in 
 their letter of the 22nd March, Messrs. B., G. & Co. 
 restrict their proposed payment to creditors, of the 
 amount in dispute, to such time as they '^may findit 
 convenient after their composition." This term is of 
 so ambiguous a nature as to warrant the presumption 
 that it refers to the period when they shall have 
 received the '• unanimous " decision of their creditors ; 
 or to the period when they shall be able to pay all 
 their credit ^'s in full — restrictions, which in fact 
 would be found to correspond with the original in- 
 tention to " reticl.; -^be amount." Had Messrs. B., G. 
 & Co. intended from the first, to divide the amount 
 in dispute rateably among creditors, as soon as their 
 composition was paid, their declaration of that fact, 
 at the commencement of the correspondence, must 
 have settled the controversy ; because, in such case, 
 instead of discussing collateral issues, it was sufficient 
 to have reminded you that you had relinquished 
 your claim for the benefit of the creditors ; that the 
 amount in hand was about to be applied to the pur- 
 pose intended, and that therefore you were not in a 
 position to demand it from them. Under these 
 circumstances, I cannot doubt that any candid reader 
 of the correspondence will come to the conclusion 
 that the original intention was to " retain the 
 amount " — at all events until MeSsrs. B., G. & Co. 
 were in a condition to fulfil their moral obligation to 
 pay their creditors in full, a period which, in the 
 general experience of the mercantile Avorld, would 
 reach beyond a calculable distance of time ; and, i^ the 
 monies in dispute be now rateably distributed among 
 
 \ 
 
66 
 
 creditors, it must be assumed tliat this course is taken 
 under B., G. & Go's, conviction that they can no longer 
 honorably retain them, and that they find a difficulty, 
 under the circumstances, in restoring them to you. 
 
 Messrs. Brown, Gillespie & Co. express the opinion 
 that the correctness of your endeavor to avoid the 
 payment of the whole amount, is '^very questionable" ; 
 they accuse you of having attempted " to take an 
 advantage over the shoulders of the Bank of Mont- 
 real " ; and they impugn your conduct therein, as a 
 failure of " strict commercial integrity and good faith " 
 toward them. These are very grave accusations to 
 be made in relation to merchants, of such prominent 
 standing as yourselves, but they will not be con- 
 sidered as entitled to much consideration, when it is 
 reflected that such charges are inconsistent with their 
 own statements, and they may probably be attribut- 
 able to the irritated feelings to wdiich your reiterated 
 appeals for the return of the monies that you relin- 
 quished for their benefit, has given rise. Your vin- 
 dication of such charges seems to me to be complete 
 in the fact that you consulted themselves, as well as 
 your solicitors, before taking the step, and also, that 
 you have the approbation of eminent counsel, as well 
 as mercantile authority, for the course pursued. In 
 adopting this conclusion, I am not " begging the 
 question " of the legaJity of your course ; on this point 
 there may be found th(^ opinions of counsel on the 
 other side ; I only declare it as, in my opinion, an 
 established fact that your endeavor to rank without 
 pecuniary loss to yourselves, was the result of consulta- 
 tion with others, with the expressed or implied con- 
 currence of Messrs. Brown, Gillespie & Co., and after 
 the assurances of your solicitors, that " the transaction 
 is one that cannot be impeached." It must not be 
 
67 
 
 overlooked that you have an acquittal of these accusa- 
 tions, even from your accusers, since in their letter of 
 the 12th February last, they express themselves as 
 having " no doubt that you considered that what you 
 did Avas in perfect honor," and they have not exhibit- 
 ed such new features in the case, as warrant them in 
 their subsequent imputations upon your integrity. 
 
 You refer me especially, in your letter, to the note 
 of Messrs. Young & Anderson. The opinions of these 
 gentlemen should be entitled to much weight, but the 
 nature of the queries submitted to them, and the 
 sententious replies ' " ^^en to these queries, lead me to 
 the conclusion that 3h replies are not the result of 
 a careful perusal of the whole correspondence. I 
 presume that all parties will unite in the opinion 
 that " the note in question was not an accommodation 
 one, in the usual and ordinary sense of the term," 
 and the correspondence does not shew that you re- 
 garded it otherwise, or that you based your claim to a 
 return of the monies, in B., G. & Go's, hands, on the 
 ground of its being accommodation paper ; the reply, 
 therefore, is irrevelant to the point at issue, and, 
 while I regard the query as having been unfairly put, 
 I am of opinion that such query has been equally un- 
 fairly met, although without unfair intention. Messrs. 
 Young & Anderson appear to have adopted the con- 
 clusion that yourselves and Messrs. B. G. & Co. occupy 
 the relative positions of ordinary debtor and creditor, 
 and as such, that you have " no better claim to the 
 money than other creditors," and that, therefore, 
 Messrs. B., G. & Co. are not warranted in paying to 
 you the amount demanded. Does a consideration of 
 the whole correspondence present this view ? I am 
 strongly of opinion that it does not ; but rather that 
 it establishes beyond a doubt that, under the peculiar 
 
68 
 
 circumstances of the case, your claim is fully estab- 
 lished. I base tins opinion partially, on the fact of 
 your haviug engaged in the bank transaction for B,, 
 G. & Go's, benefit, but specially in view of jouv hav- 
 ing relinquished, or desiring to relinquish, what you 
 believed to be a legal advantage, to your great pecun- 
 iary loss, in order to protect your friends from insolv- 
 ency, and to enable them to make a settlement with 
 their creditors on very advantageous terms. For this 
 course they admit that you have earned " more than 
 the simple expression of their thanks" ; they express 
 themselves as feeling "grateful," and I cannot but 
 view their present desire to " retain the amount,'* as 
 an extraordinary mode of expressing gratitude for 
 favors acknowledged. 
 
 The whole controversy appears, to my view, to be 
 narrowed down to a single point : a sum of money 
 lies in the hands of Messrs. Brown, Gillespie & Co., 
 obtained from yourselves, mder extraordinary press- 
 ure, and yielded by you as an act of generosity, to 
 save them from ruin ; it is given for the purpose of 
 facilitating a settlement with B,, G. & Go's, credit- 
 ors ; the creditors decline to accept it — what will 
 become of it ? B., G. <fe Co, say, " there is no other 
 course but to retain it " ; you say, on the other 
 hand, " if the money be not required for tlie purpose 
 intended, return it to us," — can there be a question 
 as to the course to be pursued ? 
 
 There has been much correspondence, and, almost 
 necessarily under the circumstances, much acrimony ; 
 I desire to avoid a closer scrutiny of the controversy, 
 lest I should appear as a partizan, rather than as a 
 commentator on the text placed before me ; but I can- 
 not refrain from the expression of regret that Messrs. 
 Brown, Gillespie <fe Co. should have committed them. 
 
 >^ 
 
>^ 
 
 69 
 
 selves to a course, which I feel all impartial readers 
 of the correspondence must unequivocally condemn, 
 and I venture even yet to entertain the hope, that their 
 cooler judgment, and an appeal to their own high 
 sense of rectitude, will induce them to take the course 
 which justice and honor demand. 
 
 I am, 
 
 Yours very faithfull};, 
 
 E. CAETWEIGHT THOMAS. 
 
 To MESSES. KEEE, BEOWN & MACKENZIE, 
 
 Hamilton. 
 
 } 
 
 "VVe forwarded copies of this correspondence to 
 Messrs. B., G. & Co., with the result which appears 
 in the follo^vin"; letters : 
 
 Hamilton, Sept. 9th, 1870. 
 MESSES. BEOWN, GILLESPIE & CO. 
 Gentlemen : 
 
 The letter of Messrs. Mclnnes & Turner will 
 explain to you the can>:c of delay in our endeavor 
 to induce you to do us justice in the matter in 
 dispute between us. 
 
 We feel cplled upon to submit for your perusal, 
 copies of letters, which we have addressed to the 
 above named gentlemen, and to Messrs. Hope and 
 Sheriff Thomas, with their replies to the same. 
 
 The controversy, for some time past, has unfor- 
 tunately ceased to be restricted to a mere money 
 question, and could be no longer determined by the 
 payment of our claim, we stand charged with being 
 
70 
 
 wanting in strict commercial integrity and good faith 
 towards yourselves, and in doing our best to get an 
 unfair advantage over others, and unless these charges 
 be unreservedly withdrawn, we have no alternative 
 left to us but to submit your accusations and the 
 whole of the correspondence to the fiat of public 
 opinion. 
 
 We are, 
 
 Yours &c., 
 
 KEEE, BEOWN & MACKENZIE. 
 
 Hamilton, 10th Sept., 1870. 
 
 MESSES. KEEE, BEOWN & MACKENZIE, 
 
 Hamilton. 
 Gentlemen : 
 
 Your letter of 9th inst. has just been received, 
 and we return you the correspondence to which you 
 refer, having really no time or inclination to peruse 
 it. 
 
 In your letter to us in connection with this dispute, 
 under date of 21st March last, you say : " Were the 
 "money about to be distributed to creditors, we 
 ** should not be found opposing such an arrangement," 
 and in our reply, we stated that it had been and still 
 was our intention to do so. AVe purpose carrying 
 this out, and must decline further correspondence 
 from any one on this subject. 
 
 ^ We can have no possible objection to the alterna- 
 tive you give us, of submitting the matter to the 
 public. 
 
 We are. 
 
 Yours, &c., 
 
 BEOWN, GILLESPIE & CO. 
 
71 
 
 "We feel that we have no alternative but to 
 submit the whole matter to the consideration of our 
 friends, in the confident belief that we shall thus 
 stand acquitted of the charges which Messrs. B., G. 
 & Co. would exhibit against us ; and with a view to 
 explain the circumstances which have induced Messrs. 
 Brown, Gillespie & Co, at length, to pledge them- 
 selves to the relinquishment of the monies which 
 they have heretofore declared their intention to 
 retain. 
 
 With respect to the question of the legality of 
 our position, we refer not only to the letter of our 
 solicitors, but also to the following case submitted to 
 Mr. Edward Blake, and to his letter in reply : 
 
 Cjvse for the opinion of Mr. Edward Blake. 
 
 The firm of A. B. & Co. were endorsers upon a 
 promissory note for $1000, made by the firm of C. D. 
 & Co., which note had been discounted by a Bank, 
 who were the holders at the time of the failure of 
 C. D. & Co. 
 
 By arrangement between the two firms, one moiety 
 of this note was to be paid by each, the same having 
 been discounted for their mutual benefit, and half of 
 proceeds received by each. 
 
 Were the Bank entitled to rank for the fall amount 
 against the estate of C. D. & Co. ? 
 
 Assuming them to be so entitled, could a party 
 taking the note by transfer Irom them, stand in their 
 position and claim the full amount from the estate of 
 C. D. & Co. ? 
 
72 
 
 "Would the fact that such third party was cognizant 
 of the agreement between the two firms, restrict his 
 right to rank for the full sum ? 
 
 Could an individual partner in the firm of A. B. & 
 Co., taking by transfer from the Bank and using his 
 own funds in the purchase, acquire the rights of the 
 Bank and rank for the full sum against C. D. & Co., 
 notwithstanding the agreement between the two 
 firms ? 
 
 Assuming your answer to the foregoing to be in 
 favor of the Bank and its assigns so to rank, would a 
 Court of Equity interfere to restrict them in the 
 exercise of their legal rights ? 
 
 ^ 
 
 Toronto, 6th April, 1870. 
 Dear Sir : 
 
 Ee a. B. Case. 
 
 Our Mr. Edward Blake has requested us to send 
 you his opinion in the above, which is as follows : 
 
 1. I think that under the circumstances set forth 
 in the case stated, the Bank could rank upon the 
 estate of C. D. & Co., for the full amount. 
 
 2. I think that the Assignee of the Bank could 
 stand in as good a position as the Bank, in this re- 
 spect, and could also prove against C. D. & Co., for 
 the full amount. 
 
 3. I do not think that the Bank or the Assignee 
 would be bound by the arrangement made between 
 A. B. & Co. and C. D. & Co., so as to restrict, in any 
 way, their right to provu for the full amount. 
 
^ 
 
 73 
 
 4 I think that at law, an inclividnal member of 
 the firm of A. B. & Co. conld sue C. D. & Co. tor the 
 full amount ; but after a very full investigation ol 
 the authorities, I cannot think it at all clear, that 
 this partner could in equity be allowed to claim lor 
 the full amount, or to pmve for such lull amount 
 It would be allowing the one partner to do that 
 which alone he could not ; I see a great dithculty m 
 the proposition that the one partner, bound m a part- 
 nership transaction not to sue C. D. & Co., can, by 
 severing himself from his co-partners, do that alone 
 which, jolaed with other two, he could not—my 
 present view Avould be against this right— but it is 
 doubtful. 
 
 5 I do i.ot think a Court of Equity would interfere 
 with the Bank or its Assigns, in proving for the 
 full amount. It is another question to consider 
 what rights the Court would allow to C. i). ti to. 
 against A. B. & Co., in case the holder of the note 
 recovers from C. D. & Co. more than the one-half of 
 the note— upon this point, I think a court of equity 
 would interfere, in favor of the representatives ol C. 
 D. & Co., and cause A. B. & Co. to contribute their 
 proportion of this indebtedness. 
 
 Yours truly. 
 
 BLAKE, KEEE & BOYD. 
 
 To G. W. BUETON, ESQ., Q.C., 
 Hamilton.