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Las dlagrammas suivants illustrant la mAthoda. trrata to pelure, n d □ 32X 1 2 3 1 2 3 4 6 6 ^ IN THE SUPREME COURT OF THE NORTH-WEST TERRITORIES, BETWEEN GEO. H. SEXSMITH, Plaintiff, (Respondent) AND THOMAS MURPHY. Defendant AND W. J. O. BOURCHIER, Assignee of the Estate of A. J. Ross, Defendant, (Appellant.) J. B. SMITH, Q.C., advocate for appellant. COSTIGAN & BOWN. advocates for respondent. I89I printed by the tribune power press. CALGARY, N.W.T. f^m^mmmmm 199438 IN THE SUPREME COURT OF THE NORTH-WEST TERRITORIES. IN THE MATTER OF AN APPEAL TO THE SUPREME COURT OF THE NORTH-WEST TERRITORIES IN BANC. BETWEEN: GKORf:K Skxsmith. Plaintiff, (Respondent.) AND Thomas MUKPHY and A. J. Ross, (Appellant) Defendants. Upon the application of the above named Appellant and upon reading the affidavit of James Bruce Smith this day filed ; 10 I do order that the above named Appellant do have until the end of the nth day of May, 1 89 1, to file the appeal books herein. And I do further orde ''• the said appeal be prosecuted in the name of W. J. O. Bourchier. Assignee of the es » A. J. Ross. Appellant, instead of said A. J. Ross Dated at Chambers this 24th day of .April, A. D. 1891. CHAS. B. ROULEAU. J.S.C. IN THE SUPREME COURT OF THE NORTH-WEST TERRITORIES, NORTHERN ALBERTA JUDICIAL DISTRICT. BETWEEN ao Geor(;e H. Skxsmith, Plaintiff, AND IHOMAS MURPHV and A. J Ross, Defendants. STATEMENT OF CLAIM I. The defendant Murphy unlawfully detains from the plaintiff the plaintiffs goods and chattels, that isto say :— One bay gelding with black points about 15^ hands high, four years old, branded ^ on the nigh shoulder (the top portion of the brand being indistinct) and 8 o" mM HE ^m ivit of f May, JO. s and years 8 on i the nigh hip, and one iron grey gelding four years old, about 15 hands high, iiranded on the nigh shoulder and having a white star on forehead and two white hind feet. 2. In the alternative the plaintiff says that he has suffered damagir by the tlofi-ndants refus- ing after demand to deliver up to him the goods and chattels mentinnc«l in thf ist paragraph. 3. And the defendant Ross after demand refused to deliver to the plaintiff the s.iiij {^.ir^iis and chattels and has sold them to the defendant Murphy anil converted the proceeds of the s;i!e to his own use. The plaintiff claims : — (l.) The return of the said goods or their value ami $100 damages joi tiieir detention. '0 (2.) $3CX) for their conversion. Delivered this 15th day of August, 1890 by Messrs. Costij^aii 6< Bown, of Stephen Avenue, in the Town of Calgary, in the Judicial District of Northern Alberta, .Advocates for the Plaintiff STATEMENT OF DEFKNTE. Defence ok the Defendant Alexander J. Koss. 1. The defendant Ross says that the plaintiff was not at the time of the replevin of the said horses or at any other time, the owner of the .said horses ;nul that the said plaintiff never had any interest whatever in the said horses. 2. The defendant Ross denies that he at any time refused to citriivc-r the said horses to the 20 plaintiff. 3. The defendant Ross further .says that noilcmand whatevir was made upon him the said defendant Ross by the said plaintiff or by any other person acting for him, for the delivery of the said horses before action brought. 4. The defendant Ross claims the said horses as his properi) suhject to the terms of a lien aote given to him by the co-defendant Murphy, dated the 17th da\- .t July, A.D. 1890. Delivered this 2nd day of September, A.D. 1890 by Lafieity vH: N(.I;in, of the town of Cal- gary, District of Alberta, Advocates for the said defendant, Alexander J. Ross. REPLY. The plaintiff as to the defence of the defendant A. J. Ko.ss says that : He joins issue. 30 Delivered the 17th day of September, 1890, by Messrs. Costigan ami How ii, of Stephen Avenue, in the Town of Calgary, in the Judicial District of Northern Alberta, A« the plaintiff. :ates IN THE SUFREMP: COURT OF THE NORTH-WEST TERRITORIES, JUDICIAL DISTRICT OF NORTHERN ALBERTA. BETWEEN Gkokge H. Skxsmum, I'laintilT, ANU IHO.MAS Ml.KI'HV and A. J. Ross, Defendants. 10 Mr. Custij^aii lur the IMaintiff. Mr. Cave for Defendant Murphy. Mr. Xol.in for Defendant Ross. » Mr. Costitjan .'Vctioii of Replevin fonpair of hor.se.s and calLs witnesses. (JKOKC.K H. Si:.\SMHH sworn. 1 am the IMaintiff. I reside at Calgary. 1 am builder' carpenter and joiner. I Unow tiic defemlant, Aie.xander J Ross. I know the horses described in the statement of claim. Tiicy are my property. About the last of May or first of June, 1890 sometime Mr. Ross came to me in the shop where I was working and I was making some work in the shop, and we 'j^>>t talking about carpenter work, and he said he had a house he had got up the Summer before out on liis ranche. He said it was too small and he wanted to put an addi- tion to it. He asked nic what kind I thought could be built to it to make it have the best ap- pearance. I told him I could not tell without I was to see the building that was up. He .said I had better come out witli him and see the building. I went out with him and told him what 20 I thouglU would be the best tor him to do, and drew a kind of a pencil sketch of the ground of it, and told him what I thf)Ugh-t it would be, and he agreed to have it done that way, so he asked nie what it would cost ; I told him in the neighborhood of $200. He then wanted a stable built; lluM) he said to nie, 1 has e a lot of horses but no money, and unless you take your pa,v in horses 1 cmiHit bnikl ; so I told him I vvi>idd take horses if 1 got liorses to suit me. He said I hati belter tome with him and see the horses and pick out w hat I wanted. I told him there was no nee<.l ol that, I would take the horses for the work. He said no, he would have nothing at all to do with it without I would tu) and pick the hor.ses and buy them out and cnit, and then there w»)uld be no trouble afterwards about them ; sn I went up with him next e.cning to his ranche, about tj miles from Cal^Miy. He had tlie horses put in the (orral. 1 went with him and looked 3^ al the horses, and .saw he had onlv two horse-. I woidd have at all out of the ])iic. They were this te im in question, two geldings. I asked him what he wanted for that team ; he said that team was worth $2/^ or .f.^To I sa\s, that decides it .Mr. Ross, and I turned rounti to walk away. 1 said I can't gi\e that for them. He savs, hold on. come back ; what will you give for them ? What tlo yuu think they are worth .^ 1 tnld him the way I was doing his work I wanted to build a house up there that would be an advertisement for me. 1 could give $250 f<»r them on the contract ; so he kind of hesitated a little while and then said, "Well, it's a go." He .says what will the buildings cost n)e r Then I says they will cost $.?6o : he said, 1 thought you said you wf June, 1890 g some work e had got up put an addi- the best ap- ip. He said »ld him what he {{round of '. so he asked stable built; [)ay in horses ic said I liad there was no hing at all to ul then there o his ranche, n and looked They were he said that imd to walk you f^ive for ork 1 wanted 250 for them ;to." He says ii,dit \on sai«! the other half ;dl righi, its ;. ? von mean the horses are mine as payment on the contract ? He said yes, there they are, take them. I said yes, I will take them, Mr. Ross ; so we stood talking a little while, while I was to commence the work in payment for the horses fight away ; I told him as I was to commence the work right away I had not time to bother with the horses, I had not time if I commenced right off to bother with them, and no place in town to keep them, and I asked him if he would let them run on his ranche there, so that they would be handy for me to train them in the evening after I quit work; he said to me they had been in harness but were not broke. I asked him if he would let them run there on the ranche ; he said, yes ; that is, you take the same chances as my own if any- thing happens to them ; I will not be responsible for them, they will be at your own risk ; I 10 said no, I do not want you to be responsible for them, any further than to tell me if they get out of the enclosure, break out ; he said he would let me know if they got out and he came and let me know ; he said the horses had got out of the field ; that was the first time they got out ; he said that they got out twice but he said he got them in all right ; that time he said all the horses was out. After that awhile he came down again and Eshelman was standing at the bark of his warehou.se where he had his implements and I was .standing talking to Eshelman ; R p>s came down from his ranche in the morning and came up where we were standing, and .said, well, all the horses are out again ; I asked him if mine were out along with the rest : he .says, yes, yours and all are gone out ; I said well, I had better get ready and go up and get them in; he says, well you had better wait until to-morrow morning when I come down, as I have .sent SO out to get mine in ; he says, yours will very likely come in with them ; they will not separate ; he says if they don't come in I will let you know in the murning when I come down, and they will not be far away ; and he came down ne.xt morning, came to the shop and told me they had come in with his all right. The ne.xt part was .Skerving from Chatham was here and he went up with Mr. Ross, .stopped there all night. In the morning Ross had the horses corralled and I asked him to corral mine with his to .>;hew to .Sher\ ing so he could see nhat sort of a choice I had made in buying. All this time I had been working steadj' at my part of the con- tract. I was working in the shop making sashes, floors and frames and cornices lo have it all ready to go up. He said he would have them all cnrralleii ; he got them in the corral ant! 1 and Ross and Skerving went to the corral and I was poi'iting out the leain I had bought ; we 3*> were just a step in front of Ro.ss. When we came up to the corral I jjointed those two horses out to Skerving and I said there is the horses Mr. Ross sold me for doing his work. Ross heard me ; he was right there ; I think Ross pointed them out too, these same horses ; Skerving made answer and said thej' were a pretty nice looking team but 1 had paid a good price for them ; he asked if they were mine now ; I .said yes, I said as I had no place in town to keep them Mr. Ross was good enough to allow them to run there until I gf)t ready to use them. Ross sai«j| nothing to contradict this ; he admitted that I purchascJ the horses when Skerving .said I had paid a big price for them ; Ross said, you don't know the price of horses here ; if you knew the price you would not think it a high price : he has got a good team. Skerving said, I am going to the Lakes. I asked Ross for a buckboard ; he says, well, these hor.ses are too wild ; I don't 40 want to let my rig behind them. He said, of course \ou can take the hor.ses, I have nothing to do with them, but I don't want my rig broke up. So 1 left them there, said no more, and Skerving and I went up to the lakes on foot. The next morning, when Ross came into town he asked me what I was mad at, I did'nt stop at his place. I told him I was not mad. I knew if he stopped he would not get back to town that night, and we wanted to get back that night. He said he thought 1 had got mad because he had not let me have the buckboard. We had no further conversation about the horses until I missed them out of the field. I wanted to go up them. I said immence the e work rijjht off to bother n run on his I quit work; II Id let them own if any- 3wn risk ; I s if they get ic came and ey ^ot out ; said all the at the bark man ; R»s , and sail!, t : he says, fet them in; I have sent >t separate ; n, and they d mc they icre and he es corralled t sort of a of the con- ) have it all rral and i lought ; we two horses Ross hcar he says come and go with me to-night ; so I went up early that night to his place in town abcut half-past five and sat there until he went and I went with him. This was somewhere in July, about the first. Could not say it was in July. The horses were selected about the 16th June, and it was about a month after that I went up with Ross on 10 this occasion. The nc.\t morning after Ross had got his breakfast he went out to get his horse to come back to townj and [ went out with him. When we went to where the horses were I could not see my horses in tlie gang of horses, and I says Mr. Ro.ss my horses are not here where arc thej- ? Have they got out ? I .says ; he said no, he had them out haying ; out hay- ing, I said, what business h:ivc >'ou to put them out haying ? He says that won't hurt them, I had no f)thcr team to cut hay with and that will not do them any harm. I told him he had no ri}jht to touch them, to do anything witli them at all, so that was all that passed then. We came into town aiul on the w;i\' in I said to him, Mr. Ross there is something very strange about those b i-ses, your action with thcin. 1 was told by the young man that stopped at your place that you had sold them. Ross said, what in hell does he know about it? I did not do any such 20 thing ; I have them out hayin■.,^ So we came into town and I went and saw my lawyer about it. -Alter this Ross came into the shop ^o .see me and says, what fuss are you kicking up now? I told him 1 was not kicking up anv fuss, if there was any fuss it was him kicked it up, and he said to mc it will always be disputing until this work is finished, and unless you will sign a writin;4 and take another team and be satisfied with it, I will stop the work. I says you will not stop the work. I will go on and finish my contract ; It will only take two weeks to finish it if you get the stuff on the grour 1 ; he said* he would stop the work if I would not sign the writing and agree to take another team. 1 told him I would not do any such thing. I would stand by my first contract, and the team I first got from him ; it was mine and I would have it. He says if you i)!it it in haw it will be five years in Law and \ou will make nothing out of it, because, 30 he says, there was nobody by when we made the bargain ; you will get up, you will swear to your contract ; I will get up and I wili swear right contrary, and what are you going to do. Well, I .says, we will have to leave it to the justice of the Court. Then he .said, well you look for justice here you don't get much. Yuu get into Court, you get sworn out of it. I told him I would have to run my chances. I would sign no writing or make no new contract. I would carry out the contract as it was. The horses were mine. He said I might as well give it up, I never would set my ens on them again. I said to him. if I don't I cannot get them, of course, but 1 said mind y«u, Mr. Ross, I am sure to find them if start to look after them. So he turned around and went out of the shop. When I was done with all the work I had done in the shop I went to him and asked him to take the stuff up on the ground, so that I could go on with my 4o contract ; he was to do that by the bargain. He said he could not do it, he had no team to take it up. So 1 went up and sa'v my law}'er. In consequence of what my lawyer told me I took a- witness and went and asked him again to take the lumber out (paper shown him.) I received that paper in the Post Office directed to me (put in no objection, marked "A.") I found the horses back in the mission back of Calgary in a little log stable in the possession of the defen- daut Murphy ; I asked Murphy for them ; I demanded him to give them up and he said he would not ; he said he could have no action against Ross if he gave them up. I told him he might Ilii e buIHirtg. snt up at 7 ; same way cting to go wanted to It up early went with Phe horses h Ross on t his horse es were I not here out hay- •t them, I he had no We came nge about your place ) any such ^yer about I up now ? jp, and he ill sign a >u will not finish it if he writing I stand by , He says , because, 1 swear to iig to do. you look old him I I would /e it up, I of course, he turned the shop I with my m to take : I took a • received ound the he defen- : said he he might 'jam i. n> 10 .8 better give them up and not get into cost about them, for he would get into cost, for they were my horses ; no one was present at that time ; afterwards I met him in the street, talking with Charles Jackson, and I demanded them again. We came over about the same words ; he saiiJ he would not give them up. He said he had bought them and had given a lien note on them for payment. I told him I would replevy them. He said, of course you can take them then. He says, this is no surprise, I expected you would be after them every day from what Mr. Ross told me, but Mr. Ross told me he thought he would suit you with another team. Jackson was present at this time. I explained that after that this demand was made three days after they were replevied. This was on Saturday and on Tuesday they were replevied and returned to me and I kept them in a pasture. Xm. by Mr. Nol.VN. — I am a carpenter. ! have got a carpenter's shop in town. I work in it pretty much every day. I d.'H some work for Major Walker last week. About the horses Mr. Ross came into me in the shop about the building ; this was the first of it. I don't know but what I did tell Ross before this that I wanted to get some horses, and I went out with Ri»s to his ratiche. All the conversation did not take place then about my telling him he had on.y two horses that I would take and my offering $250 all took place at the ranche at the time we made the contract. I can't tell the exact date or the day of the week. I don't know what night in the week it was. I went out with Ross to see the horses ; I don't ••':nember ; I don't think it was a Saturday night ; it could not be ; we should not corrall horses on Sunday. It 20 was not Sunday when F made the bargain. I would not buy horses Sunday and for that reason I know it was not Saturday night I drove out with Ross. I think I swore I purchased a pair of pair of horses about the 16th June. It may have been a day earlier or a day or two later. If the l6th was Monday, a day earjier would be Sunday, but I know it was not Sunday I pur- chased the horse. The agreement between Ross and I was he did give tne the team of horses, the transaction was he delivered me absolutch' a team of horses and I was to go on and make arlili- tion to his buildings at a future date I commenced right away. I made out a bill of the lumber and he went and got it. Whatever date the bargain was made this was the terms of it. I got deli- very of the horses ; he said there they are, take them ; They were in the corral. There were 14 or 15 horses besides in the corral. I don't think there were 20. I would not think from the 30 number in the corral there were. I did not halter them at that time or rope them at that time. I did not have my hand on either of them at that time. Nothing is wanting to shew the bar- gain between us. No money pas.sed at the time. No one present at that time only Ross and 1 ; vhc bo\- who corralled the horses was in the far end of the corral. He could not hear what we said, he was too far away. I say that positively he could not hear ; neither of us talked very • loud. I don't think he could have heard ; I could not hear that distance. On this day this contract was made. I became the absolute owner of that team of horses. I was to begin work right away, and that was somewhere about the i6th Juue. I was to put an addition to the house that was then 16x24, o"e storey high, a partition across the centre of it, dividing it into two rooms. I was to put 2 bay windows in the part that was up. 1 was to side the 4o old building up ; it had been boarded up before. I was to tar paper and side it. 1 was to stud the lower part of the old building so as to receive lathing. The studding was in 4 feet apart and I was to put studding in between. 1 was to change the stairway ; it ran from the front. I was to change them so as to run the other way. I was to put a verandah 16x5 across the end of the addition I was to put up. I was to build a stable 24x30 a storey and a half high. He was to find materials and board me while I was doing the work. I had nothing ^1 \ 1 or they were talking with rds ; he saitl lote on them them then, iiat Mr. Ross Jack-son was ys after they returned to jvn. I work ut the horses don't know ut with Rii>s he had on,y the time we t know what ber ; I don't Sunday, [t r that reason sed a pair of wo later. If nday I pur- im of horses, :1 make addi- e lumber and I got de!i- here were 14 ik from the at that time, hew the bar- ily Ross and it hear what » talked very 1 his day this .) begin work to the house : it into two to side the uid side it. Iding was in ; it ran from randah 16x5 itorey and a had nothinti tu du with anything but carpenter wurk; I was not to gu to work on that immediately. I was to go to work at shop and make the doors and sashes and frames and he was to take them out as soon as I was ready and they were all made. These horses were replevied about 15th August I guess. On that date I iiad done all that is done now ; I calculate $200 worth. I have done nothing ol'thi-; contract at the ranche. WlLitcver I have done in this contract I did at my own workshop. I made all the doors and sasiies and frames ; by frames I mean frames of ofjcnings ; the verandah pari and cornice and brackets are all made. Also the brackets that are outside for the bay window ; also the cornices and carvings ; there is a balcony on top of one of the i)a>' windows, and the turned railing is all made read)' to set up, and the cornice 1 got out for XO the old biiiiding bcin.LC next the roaii. The front board is all carved and cut and ready to put in. I told him I woiikl not make niiicli out of the contract. I did this work myself. All I got from the mill was the turning, and he got the lumber dressed by the plainer. I had to dress it afterwanls. Ross knew this and was in and out two or three times a week when I was working. I was to do a good jwb. nothing was mentioned about approval. I told him I could do him a good job ; I slunved Ross the work and he was well satisfied. The day the work was stopped I asked him if it suitcnl him. and he saitl yes, he had no fault to find with it. I remember all that took place between Ross and I about the $275 and $260 Ross did not tell me that when the work was ilonc if he had not hor.ses to suit me he would give me cash. The horses were mj- propertj- after that date .md when Skerving came up from Chatham I took him to the lakes 20 to see the country. The lakes are on the ne.vt .section to Ross ; Ross .says his place is 9 miles from Calgary and wo went a mile further. Ihe hor.ses were my property. Skerving and I went out on foot If it is 21 miles from here there and back we went it on foot. I did not take mv team because the\ were at the ranche and Ross would not let me have the buckboard, because the\' were too wild. It is pretty hard work to get a buckboard in town only when I hire a livery rig. Ross did not refuse to let me ta);e the horses away. I asked him to let me ha\e his horse to ride up and get my horses. He .said he would but he would not let me take the rig with my horses. Ross did not on that occasion refu.se to give me tile buckboard. I swear that Ross did not tell me that he had sold the team when I asked for them where tlicy were. Ross never toid me before I brought this action that he had .sold the 30 hor.ses to .\Iurph\. Ross never i.^ld me to my knowl-^dge before this action was brought that he had sold the horses. I don't remember that he dii., I don't think he did. Ross handed me over a team of horses on my imdertaking I would do certain work. Mrs. Ross was not present during the conversation between myself and Ross in which this contract was settled. It took place at his ranclie. We went out the night before and returned the next morning. I think I did not remain there a whole day. I have been there a whole day at other times and remained over Tuesday. I don't know the tlay I made the estimate for the lumber. I made it out when 1 returned from th(; ranche immediately after returning the day we made the contract for the horses. Mrs. Ross was not jiresent the time the bargain was made. I am confident of that be- cause it (?) was not at thi; corral. She was at the ranche. We left her there when we went out 4o to the corral. The contract was not discussed in the hou.se, nothing more than what the build- ings were to bp like. I told Mr. R<)ss what the buildings would cost. Mrs. Ross was not present. This took place at the corral. 1 did not give any figures at the house. According to my contract the j)ortion of work done was worth $200. I conkl not tell how many days 1 was working at it. 1 commenced to make out the bill immediatel)'. Went to the factorj- for the stuff and commenced working at it, in two or three days after and continued until I asked him to take up the .stuff. Mr Ross stopped me from r i i\y. I was the bill of lumber I made up the bill and he took it ; that was the day I came back from the ranche ; he took the bill and went to the Kau Claire. This was the day I made the bargain. I made up the bill ne.xt day. He took the bill and went to Kau Claire. He got into town from the ranche that day somewhere about 10 or 11 o'clock in the morning. The stores were open in town that day I never haltered or roped the horses in Ross' premises. I never did until 20 they were replevied. The doors and sashes are in my shop, still on iny han Is. The rough lumber for working with was to be left at the station up the railroad, about 9 miles up west, of Ross, and Ro.ss asked me if I could let him have the team to draw the lumber up with his team. I told him I did not know, I did not like to let everyone ilrive them if tin \ were as wild as he stated, but I said if he got a good man to dri\e them I would not see him stuckion the lumber, that I would drive them myself before I saw him stuck on the lumber Mk. COSTKIAN tenders the evidence of A. H. Skerving under commi-ssion. No objection. A. H. Skkkvin(; Dkposition Ri ad. Evidence 0/ A . H. Skerving taken at Chatham under coininission dated 14th October, it^o before W. E. McKeongh, Commissioner. 30 1 Q. What is your name, place of residence and occupation ? ' A. Archibald Hugh Skirving, Chatham, Ont., Policeman. 2 Q. Do you know George H. Sexsmith, the plaintiff in this action ? where does he live, and what is his trade or occupation ? A. I know George H. Sexsmith. He lives at Calgary, Alberta. His trade, Carpenter 3 Q. Do you know A. J. Ross, one of the defendants in this action, where does he live and what is his trade or occupation ? A. Yes, I know A. J. Ross and he lives at Calgary, Alberta. His trade is a photographer 4 Q. When and where did you last see these parties? A. I last saw these parties in June last at Calgary. 40 5 Q- Do you know whether the defendant Ross sold the plaintiff Sexsmith a pair of horses? If so how do vou know it ? .MM vork in the :\vo weeks. i the work, ite in thi.s :her I have ). I have was not to ij:=c.c Mr. ip. I liacl s s|)cc;ficil avc driven o make i:;) k from the e barjrain. town from were open did until The rouf{h ' up west, ip with his }re as wild jckion the obiccticm. ohr, Jtt^o e Hve, and penter. e live and tographer. of horses ? U! Ml - II A. 1 know that he a|rrcci] to let George Scxsmith have a pair of horses for building an addition to his (defciulants) ranch near Calgary. I understood it from Sexsmith and then from Ross. 6 Q. Dill you ever have any conversation with the defendant Ross in the presence of the plaintiff Scxsmith or in his absence in connection with a pair of horses and in connection with which Scxsmitii's name was mentioned ? If so when and where ? what was said as near as you can remember ? A. On the morning of J5th June Ross hati all his horses in the corral and I and Scxsmith and himself were pn.'seiit ls did not say ark horse ; I 'Wards on the not to call at nd. He said ess Sexsmith f his horses " I said " No, jpped at his do so ? think they ters in ques- he defendant se enough to pointed out 1 1^ ( I i 13 , ' . 17 Q. How did you understand that ? * A. Because in conversation with him Ross never said they were not his. 18 Q. How near were you to the horses. A. About 30 or 40 feet, there were a number together. 19 Q. How many ? A. I should judge about 20 or 25. 20 Q. V^'ere these horses making a noise ? A. No. 21 Q. Whose possession were the horses in at the time \ou saw them ? 10 A. I do not know ; but the corral beiongcil to Ross and the horses were in the corral. 22 Q. Uo you know if Sexsmith had other horses ? A. I don't know whether he had other horses but these two. 23 Q. How do you know he had these two ? A. I asked Sexsmith which were his two horses in the presence of Ross, and he (Sexsmith) pointed them out to me, and Ross did not say they were not his. 24 Q. You stated that Sexsmith was to build something, what was it ? A. He was to build an addition to Ross's ranch. 25 Q. What was he to receive for doing so ? A. He was to get these two horses. 20 26 Q. Was it on the completion of this addition that he was to receive po.ssession of the.se horses. A. I don't know. 27 Q. Do you know if that building (being the addition) was ever completed? A. I don't know. 28 Q. Is Sexsmith any relation to ycni '1 A. None whatever. 29 Q. How did it come that )-ou were together". A. I knew him in Chatham and when I arrived in Calgary I hunted him up and renewed our acquaintance. 30 30 Q- If you had seen these .same horses that Sexsmith had pointed out on the following day in some other place, could you have identified them ? A. I don't know that I could, as I )srir,.\\ applies to amend the 5lh paragraph of the Statement of Claim, by sub.stitut- ing for it as follows : ".And the defendant Ro.ss wrongly converted the .said goods and chattels 30 to his owr. use. ' No cjbjection. .Allowed. .Mr. Ni)1..\N on behalf of Ross applies to amend the Defence of Ross by pleading a denial of the conversion as alleged in the 3rd paragraph as amended and by pleading that the Statute of I'rauds has not been complied with. Mr. Cos ru;.\N -No objection to the first, as to the .second he objects. I will allow the amendment. ^Iliii Mr.N\)I,.\n su'>mits plaintiff has not succeeded. (i)Where there is a contract for the sale of horses when the vali.e of ^ 10 between two parties, that contract must be in writing unless there is immediate deliver)', part payment or part [)erformance of the contract. li H There was nn delivery and no possession changed. 40 1 decline to stop the case at this point. A a here would be the team had > said when he sked Sexsmith gained for. He rhat was about [e never lived ther adjoining, ween. He was to become one he is a respon- (onsible party, beheve him to think I knew alevied. Sex- Frank Westa- in my posses - was a Sunday drive me with le. I have not ay and Satur- e been at pas- lile at pasture. does produce, , by substitut- s and chattels iding a denial at the Statute ill allow the for the sale of kfriting unless il I P ii 14 Mr. Nolan calls witnesses for the ilefeiiic. Al.liXANDEK J Ross swom. I am one of the defendants in ihis action. I was added as a party after the original writ in this action was issued. I carry on business in Cal-. Well I said I did not know of a.'>- I wanted done at present but 1 would think over it ami let him know later. He came to nie 11 a short time again and talked about the same thing over again. I told him at present I h..>i nothing I w;is very particular about having dc^ne, but I might possibly let him do some work on my ranche, providing it woul" not cost too much and we could come to an understanding about it, the price and how it was to be done. If he came out .-^omc night with me 1 would drive him out. He could see the buikiing and give me an idea of what it woukl cost and the 20 probable cost of the lumber it would take to do this work. VV'c scttleil that he would come out some Saturday night and stay over Sunday. I drove him about I think tlu- 14th June, Saturday night, anj'how he stayed Saturthu- night. Sunday he looked round the building, came in and sat down and said it is not going to cost much to ilo the work here, all that you w.mt done. We h.id been talking before we went out to look around the hf)use. I explained to liim further what I WDuld like to have done and the wav I wanted In h.'.ve the house fixe;l. We talked it over, my wife was there, she made sexerai sugg( stions about how she woidd liki- to lia\e it ar- ranged. Mr. Sexsmith sat down and figured right then and there what he would do the W(irk for and the probable cost of the lumber, he said he would do the work and the hou.-;e for $i'00 and the lumber would cost from $180 to roo, perhaps a little more and perhaixs a little less. I 30 told him I wanted a stable built as well ami to figme on a stable ;U);)Ut 22x28 or 24x30. I was not particular which. He figured out that and said the uorlc he would do lor about $40. I'heii he kept figuring and making a kind of rough sketch of what was going to be done until about noon. -After that tlic man I had working for me rounded up the horses and put them in the c inal ami we went down and looked ;it the horses. I did not round them u; particularly for Sexsmith to look at the horses, but I told him he might as well go down and look up the horses and sjc if there was anything there that suited him. I told him I could not give him mares and if there nas anything there that suited him and we could agree ;ibout the price of the horses we could settle about his going on with the work. He went down. There were some 20 hoises in the corral and he Irioked them over ami commenteti on this one and that one and finallj' select- 4o ed this big team and said that was the best team in the corral. He liked them best of any. He stayed there awhile. I was waiting for another man to come ; he did not come. We walked ab nit to the house, we had some more conversation in the house about the matter, mj' wife s iggested she thought this thing was going to cost too much. I had better consider the matter, bj sure of what the hnnber and everything was going to cost. Then Mr. Sexsmith asked me what I valued these horses at. 1 toUI him ! valued them at $300. Well, he said he thought 'as added as Jalt of any. He We walketl tter, my wife ler the matter, ith askeil me J he thoujfht .'i '5 that was altogether t«K) much. 1 said I did not think so. 1 could sell that team for $3CX>. 1 says I let you put your price on your work, now what would you consider my team worth ? putting your price on it. He .said I would consider they are not worth any more than $250 ; then I said that was $50 less than their value. I .said if he liked to take that team on the con- tract at $275 he could have them and nobody could have them any less. I told him I knew I could sell the team at $300. I said he could not buy a team like that for $250. He repeated a conversation he had with a man at the mill one day. He did not say it was a team, he said it was a bigger horse and did not know it was a better horse and the man said he sold horses like that for $125 each. I said that was a good man to buy horses from, he was either a fool or 10 he did not have any more horses like that to .sell. He said he did not know whether the man had horses to sell or not but that is what he told him. Then he said he did not think he could give $275 for these iKjrses, he thought it was a little too much. I said I was not anxious to have the work done anyway, and it did not make any tlificrencc to me if he wanted to go with the contract at these figures he gave me, he could go on with it and finish it and if I had horses to suit him when the contract was finished I could give him horses, or if not I would pay him in cash. If that did not suit him he need not bother any further about the work. He went on figuring again and he figured the stable to cost $60 instead of $40. That is his work. Well, I s.i)'s how is it the first time you figured at $40 and now it is $()0. He says, well first time I made a little mistake ami I figured it larger this time. Well I repeated if he wanted to go on 20 with the contract and take horses when the contract was finished, if I had horses to suit him and if I had not to take the cash, and if he did not want to do the work on those conditions I did not want it done at all. He was perfectly satisfied to do it but he was very anxious to get the work to do. It was settled there that he could do it on the.se conditions. I was to furnish all the lumber anrl hardware and he was to do the work. Mj- wife came in and asked him when the work was going to be commenced and how soon he was going to finish it as we were only going to be living there for the summer ; she wanted it for the sum- mer and not for the fall. If it was not going to be done for the summer it might just as well wait for next spring. Mr Scxsmith was to make the doors, sashes and windows, and he said he would be ready to come out and work on the building in 30 two weeks. I s.iid I don't think \-ou can make all those iloors and sashes in two weeks or any- thing like it, and you hatl better get the doors and sashes at the factory, as you can get them chca[)er there than you can make them and so much ([uicker He .says Oh, I can make them quick enough for that and 1 can make them so much better He said all the doors and sashes generally u.sed in this country were made at the factory aiul I thought they were good enough. He says thej- won't cost an\- more than if made at the factory. I can make them '4S cheap as \-ou can get them at the factory and a good deal better I said all right if you think so, go aheaii, all I want is to get them done quickly. That is about all I remember that happened on that da>". That was Sunday. We drove in Monday morning, got in here about 9 o'clock, a few minutes after 9 o'clock. Coming in on the road I told him to get out the esti mate 'of the 40 lumber as quick as he could and get it at the factory. Previous to this we had a talk about gcttii .c lumber I said I would get from Walker at the Kau Claire which ever would fur- nish it the cheapest. He said he could furni.sh the estimate of the lumber that day but he did not do it for several days after that. Finally he got the estimate of the lumber ready and sHowl; 1 me what it would cost. I told him to t ike it down to Walker and see what he would furnish it for I also got an estimate from the Eau Claire mill of what they would furnish the lumber for He had both of them with him. I did not on that occasion nor on any other occa- I riffi :i It sion sell the team of horses to Sexsmith. I remember when Skcrvinjj went there I drove him and Skerving out. Mrs. Ro.ss was pre.sent during most of the conversation with the plaintiff on the Sunday and while he was figuring ; she heard the terms and heard the whole bargain. I ili'ou used us very well, better thin we expected to be. There was no conversation whatever about a backboard. He says I think George is pretty tired to-day. That ended up the conversation between him and I. I claim these two horses now as my property. I sold the horses to Murphy. I got that lien note for them so that my ownership is subject to the terms of that lien note. I never asked permission from Sexsmith to use these horses. I never parted with the possession of these horses until I sold them to Murphy. I never said to him on that Sunday, there are the horses, take them. I never said anything of this kind at any time. The words " it's a go " is an exprcssio:i I never made use of I did not tell Sexsmith the horses were out haying. He came out with me one evening, said he wanted to take some measurement for something '>r other aS )at the biiidiii.js. 40 He stayed all night and got up early in the m>rning. I don't kn o.v where he wis. We had our breakfast an 1 the man had my horses all hitched up. I said did you get the measure you wanted, if you did we will pull out. I went to get the team. He said I got the measure all right. We got into the rig and, driving into town, somewhere on the road he says " I did not see the big team in the field." I says " Did'nt you." He says " no ;" after a while he says you never told me that they were sold. I says did he. Yes, he says! He says are the>- sold. I .«aid ves. He says tf { where arc they now. 1 said they arc out haying. He said I thought 1 was to have that team. I said I thought so too if you were to pay me for them, but you could not give $275 for them and another man could give $300. There was no understanding that you were to have the team at your figures. If I had'nt a team to suit you when your work is done I will pay you in cash. I got $40 or $50 more out of that team than will pay you. He says "that is all right " then the cash will suit me just as well because I can get a better team for that money " and he repeated the storey about the man at the mill again. I never accepted any work that he had done at his shop. He asked 'me to approve of some such he did. This was after Costigan came and spoke to me on the street. 1 just simply turned round and said I would not look at it or >0 ha\ e anything to do with it. I had not at any other time accepted or approved of the work that was done. I never to my knowleiige saw him at work on my stuff for me or that he stated to be my work. He pointed to a pile of sashes one day and said that is mine. I never men- tioned Se.N'sniilhV. name to Murphy in any way whatever until after the Replevin. Xm. »y Mk. Costic.w. — I never .sold these horses to Sexsmith or any other horses. I never said I ditl. I have as gooil a memory as the average. I have a -^ood memory. If I say ainlhing that is not true my memory is not to blame. I never said to anyone that I had sold a jiarticnhr pair of horses to Se.xsmith. I know Mr. E.shelman. 1 think his name is Jacob. I don't know his name. I heard his wife call him Jikc. J. F. Eshelman is the name I know him b\'. He was working for me a long time. I never told him I had sold these horses to 20 Sexsmith. I do not remember meeting E.shelman in my shop one morning and .speaking to him about my bargain with Scx.smith. I may have spoken to him about the bargain. I it ay have told him I made a deal with Sexsmith. Very likely I did. I remember the time Sexsmith aud 1 went to the ranche atul we looked at the horses. I don't remember meeting Eshelman after I came back." I will swear positively I did not tell Eshelman after I came back — I have sold that big team to Sexsmith. If it would seemthat I did he is lying under a mistake. I did not tell anything of the kind. I never iii my life referred to these horses as Sexsmith's horse.s. I know Charles Jackson. 1 know where his place i.s. I remember going to his place with a man na med White. I took White out to see .some rake Jackson had to sell. I met Jackson there that day. I did not then refer to these horses to Jackson as Sexsmith's horses. Positive of that nor to 30 either of the horses as Sexsmith's. Question — Did you not state to Jackson on this occasion words to this effect : Sexsmith wanted to loan my buckboard to hitch up his horses. I refused to let him have the buckboard as I was afraid they might smash it or damage it. An.swer — I positively say I never .said anthing of the kind to Charley Jackson or his brother. Atljour iinc:it until to-morrow morning at 10 o'clock, Wednesday, 26 November, 1890. Alexander J. Ross X. Xm. continued. 40 It is not true that on the occasion of my returning from the ranche where I had the conver- sation with the plaintiff about the horses in my place of business in Calgary, Eshelman being engaged there sorting the mail, I told him I had sold these horses to Sexsmith. I did not tell him so that day or any other day. I will swear I am not mistaken about that. I did not say to Charles Jackson or his brother that Sexsmith wanted my buckboard to put one of his horses in, but I would not let him have it as I was afraid he would break it. Charles Jackson's brother is hamed Thomas. Charles and Thomas Jackson and White were together at Jackson's place. That's the only time I was ever there. I am not mi.staken about having said this. If I had said r i it I would have remembered it. Sexsmith's name was never mentioned while I was there. (Paper shewn him ) This is the lien note I received from Murphy. Mr. Costi<;an offers this note in evidence (read B). When Skerviny was out there the hor.scs were knockin^j about my door, They were not in the corral. Se.xsmith is mistaken, that was the evenintj, not the morn- ing at all. I am just as sure about that as about its belnjj Suntlay. Me is mistaken when he .says that we were lookin^j over the fence. I heard Skcrviny's evidence read. Hcismistakcnwhen hesays I asktd Sexsmith which were his two horses in the proente of Ross. If he saj slhatw.'is asked in the corral he is mistaken. I did not see him point out the horses to Skervin^. If I had seen him do so I would not have contradicted him simi)h- because I would have thou^dU 10 he was blowing to his friends, i drove Sexsmith and Skerving out and they drove in with a horse and rig belonging to me. 1 was dealing in Winnipeg in land. I was in the boom. I left there, came here, went into photographing business, also ranching, selling pianos inul agricul- tural implements, been in that business. Last year Mrs. Ross was living at the ranchi.'. As a rule I went out every night. Went out Saturday nights and as a rule stayed until Mond.iy morning. There was nothing said about the.se particular horses in Mrs. Ro.ss' presence to Sc.s- smith except that he would have them at my price. There was less said in her presence lli;in anything else. Sexsmith asked the price of the horses in Mrs Ro.ss' presence. 1 told him that I wanted $300 for them. He wanted them for less. Mrs. Ro.ss laughed. He .said he did not think that they were worth that. I don't remember but I think he .saiii so in Mrs. Ross' prcs- 30 ence what he thought the horses were worth. I think he did. That is all I remember that took place about the horses in Mrs. Ross' presence. The whole matter was tliscussed in her presence. The price of the horses was not discussed in her presence until after we came back from the corral and then there was very littla. Mrs. Ross has been living in town lately. This conver- sation in presence of Mrs. Ross took place on a Sundaj-. Did not go out to tlio corral at all on Monday morningbeforeweleftfortown. Arrived in town that Monday morning a few minutes after nine. I remember the time because that is the time I usually get in. I left that ranche that morning a few minutes before eight. Cannot state how many minutes. Takes from an hour to an hour and a half to drive in ; it took me quite a little over an hour that day, just an hour and fifteen minutes. 1 generally get up in the morning about 6 a.m. or half-past six. 30 Ex. HY Mk. Cavk. — When these horses were taken from Murphj- by the Sheriff the)- were in Murphy's possession by my consent and by arrangement between Murphy and me. 40 Mary Ross sworn. I am the wife of the defendant i straight cash and when v> ^ mKiK^m^rrrvm 19 the work would be done and he had agreed to take horses if it was not convenient for us to pay the money. We had talked that way. He had looked at a bunch or band of horses and pre- ferred the look of two of them, but there was nothing .said that he should positively get those two horses. Mr Ross had named a price for these horses. I heard Ross mention a price to Seismith It was $300. I don't remember Sexsmith saying anything but there was positively nothing decided about Sexsmith getting these two horses. I did not hear Sexsmith .say he would accept the offer of $300. I did not hear him .say anything at all. I did not see Mr. Ross draw a pencil sketch of the improvements, but I saw Mr- Sexsmith draw a. sketch, because he referred to me and asked me if we would have such and such things. I did not say anything 10 about agreeing to $200 for the improvements. I did not agree at all. Sexsmith went out at the ranche several times on Saturday night. Ross came out in the evenings during the work but Sunda_\- was tlu; onlj- day time he was at home. Xm. \i\ Mr. Costic.an. — The>' left the ranche that morning pretty early. 1 cannot say the time. Mr. Ross generally left between 7 and 8 o'clock. Don't remember the time he left this particular morning. He u.sually got up six or half-past six. Generally six o'clock. They were in and out the house this Sundaj". Really I did not observe them together. They may have been. I don't think they were out of the house together Monday morning. They may have been but I don't think so. They were not that I know of I v/on't swear they were not. They may have been. I hardly think it. I did not see them. I do not know for sure. They 20 were both out of the house at the same time. I don't think they were. My reason for saying that is my husband is always in a hurry going to town. Sexsmith I think was up earlier than my husband. I said nothing when the price of $260 was mentioned for the improvements. I raised no objection. Rk-X HY Mr. N()I..\N.— I don't know of my own knowledge that Mr. Ross was out of the house at all before going to town that morning, we had i^ man stopping there at the time. I think his name was Morgan. Mr. Ross sometimes hitched the horse himself I do not know he did it this particular morning. Ca.se closed for defendant Ross. Mr. Cave fov defendant Murphy reads Judge Rouleau's order and asks me to decide the 30 question between all parties and calls, 40 Thomas MurI'MV sworn. — I am one of th<; Defendants. I live on the mission. I am a contractor at teaming or whatever I can get to do. I heard the evidence of Jackson and Sex- smith. I heard their account of meeting me when they demanded the horses from me. I heard them state that I said I ■J.]\..iy.. expected tioublt in connection with these horses as Mr. Ross told me he had ;.uid these horses to Sexsmith. That is proving I never said any such words or anything to that effect. Ross never mentior.ed the name of Sexsmith to me before the Sherifif took the hor.ses. Question — How came you by these horses ? Answer — I bought them fron* Mr. Ross on 17th July. Mr Costigan objects to any evidence of .sale to the witness, claiminj that he has not in his Defence set up property in himself but by par. 4 set up merely an agree- ment to purchase. I rule the evidence admissible under the 2nd paragraph of his Defence, also under the 3rd par ^ ik |! f' % e- so 20 I give security for these horses. To Mk. COSTKJAN — It was given by a lien note. By Mr. Cave — (paper shown him.) That is the .securit)-. Tliese horses ivere taken from me by the Sheriff, they were at that time in my hands by consent of Ross. At the time the horses were taken from me I was using them. It was a matter of inconvenience to me their being taken. 1 had a contract to supply hay to the railroad at the time to Mr. Strevel and Mr. Laidlaw. I had two contracts besides some sub contracts under those who I was .supply- ing a load to now and again. At the time the horses were taken from me by the Sheriff I had the team in daily use in 10 my business. These horses would be worth in business such as mine about $3 a day for work of that kind. For my business it would be worth my while to pay $3 a day for a team of horses. Xm. by Mr. Costu;ax. — I never paid the $300 for this team. They were replevy 1 aw.iy from me. I had not a chance to pay for them. I don't know of any horses hired for less tha;i $3 unless for a certain length of time or when a person was using a whole lot of hor.se.s. Horses with a driver are employed on construction for $2.50 a day as long as the work lasts. Xm. by Mr. Nolan. — I never heard Sexsmith's name mentioned by Ross in connection with these horses. I first heard of Sexsmith having any claim on the horses, was coming to demand the team. I did not know anything about Sexsmith or who he was. The horses were replevied on 12th August (to Judge.) I got the horses on 17th Jul)-. Ca.se closed for defend- 20 ant Murphy. Mr. Costigan asks to call witnes.ses to contradict Ro.ss. To call Kshelman. Charles Jackson and Thomas Jackson as to the particular conversation he cross-examined Ro.ss about. Mr. Nolan says no objection to Kshelman and Thomas Jnckson. but objects to Charles Jackson, as he has been sworn before. I allow it. Jacob B E.SHEL>L\N sworn. — I live in Calgar)-. I am a married man. i know the defen- dant, Alexr ider J. Ros.s. I was in his employ for some time here in Calgary. I remember his being in conversation with me in respect to a pair of horses and Sexsmith. It took place in Mr. Ross' studio, I had just returned from the post office in the morning and was reading mv correspondence when Mr Ross came in and stated that he had sold the big team. When I 30 asked him to whom, he lid to the old man, meaning of course Mr Sexsmith speaking of Se.x- smith in that way. I know the team he referred to and knew it at that time. I know them be- cause I h::.. seen them frequently. It must have been sometime the beginning of June last or the end of May. I am not very sure. It was not July anyway, I am sure of that. No chance of my being mistaken. I would not be sure he mentioned the price. He said Sexsmith was doing work for him. He was to finish a building for him and put an addition to it and the horses were to be in payment of the work. Xm. by Mr. Nolan.— I remember this all along. It was not at all neces.sary to remind me of it. No person reminded me of it recently. I perfectly recollect all that was said. Ccr- taiinlj' there was a conversation about it between Mr Sexsmith and myself I did not go to I Sexsmith nor he to me. We happened to meet, Sexsmith suggested it first. I could not state howlongagothiswas; itwas .somewhereafterthearrangementwasmade It was more than a month ago, it s not after I left Ross' employment. Ross said he sold the big team to the old man. He mentioned a name. He mentioned Sexsmith's name. F think he said. I think I said in my direct examination he mentioned Sexsmith. I said speaking of Sexsmith in that way. I know who he meant. I think I have reason to think that by the old man he meant Sexsmith. I am prepared to swear he mentioned Sther\vise b** exempt. The title and ownershiii of the ^nod.s for which this Note is xivi-n, shall remain, at my own risk, in A. ). Ross, until this Note or any renewal or renewals thereof is fullv paid; and if default in payment is made, or should I sell or dispose of or attempt to sell the under mentioned land which 1 own. or if for any rea-^on A.J. Uoss, should consin of the said );oods and hold the same until this Note, or any renewal or renewals thereof arc paid, or sell them at public or private sale, the pr(K*ecf tl o judgment and costs awarded to the plaintiff and the co.sts awarded to the defendant Murphy, he may apply to the Judge in Chambers to have ntisfaction of the judgment entered at his cost. If he fail in any of these conditions the "efendant Murphy may apply to the Judge in Chambers to have execution i.ssued on his judgment against Ross for such amount as the Judge 20 may on hearing the parties determine to be sufficient to keep him Murphy indemnified and harmless Nothing in this order as between the defendants to affect the plaintiff in any way. Correct. K. L. VVktmork. J. S. C. IN THE SUPREME COURT OF THE NORiH-WEST TERRITORIES. JUDICIAL DISTRICT OF NORTHERN ALBERTA. BETWEEN Georue H. Sexsmith, Plaintiff, AND Thomas Mlrphv and A. j. Rcss, Defendants. TAKE NOTICE that 'he defendant A. J. Ross appeals from the verdict agairst him in 30 this action, and against the judgment of the Honorable Mr. Justice Wetmore, given cr entered thereon on the Twenty -seventh day of November, A. D. 1890, .so far as the same concerns him; AND TAKE NOTICE that at the Sittings of the Supreme Court of the North-West Territories in Banc, to be held at Regina at 10 o'clock in the forenoon on the 1st day of June, A. D. 1891, or so soon thereafter as Connsel can be heard, a motion will be made on behalf of the said defendant A. J. Ross to the Courtin Banc for an order that the said finding, verdict and judgiYient, obtained against the said defendant in this action, be set aside and a new trial had between the parties, on the ground of the discovery of fresh evidence on behalf of the said 25 ■ • defendant since the trial of this actfon, as disclosed in the affidavits of the said defendant, Gc^-fje White, Herbert Morgan and Edward McArthur, this day filed ; or for an order reducing the dama({cs awarded against the said defendant, on the ground that the same are excessive ; AND TAKE NOTICE that upon such motion the Court will be moved to grant an order allowing the said defendant to read such affidavits, and the said defendant hereby gives notice of his intention to read such affidavits. DATED AT CALCiARV this loth day of December, 1890. To the above nannui P/aintiff ntui .l/essn. Costiffan & Howh, his Advocates. James Bruck Smith, I© • Advocate for A. J. Ross. BETWEEN Georck H. Sexsmith, Plaintiff, AND TriOMAS MURI'HY and A. J Ross, Defendants. I, Alexander J. Ross, of the town of Calgary, in the North- West Territories of Canada, Photographer, one of the above named defendants, make oath and say : — 1. This action was tried on the Twenty-fifth and Twenty-sixth days of November last past at the town of Calgary before the Honorable Mr. Justice Wetmore, and th(, said Judge on the Twenty-seventh day of November aforesaid directed judgment for the plaintiff to be entered 20 against me. 2. At the trial of the said action Mary M. Ross and 1, this deponent, were the only wit- nesses examined on my behalf. 3. That Herbert Morgan, Edward McArthur and George White, all of the District of Alberta, were necessary and material witnesses on my behalf in this action, as shown by their several affidavits made herein. 4. That I was not aware that the said White, Morgan and McArthur, or any of them, were material witnesses in my behalf in the said action, or were in possession of any knowledge whatever relating to any of the matters in question in this action, until after the trial of the said fiction as aforesaid. 30 5. I verily believe that if the said plaintiff is allowed to retain possession of said horses, in question herein, I will not be able to recover the price thereof from him. . n 26 6. The said Morgan White and McArthur, were mentioned during the course of the said trial by the plaintifif and several witnesses on his behalf, which mention was the first intimation of any kind I had that they knew or could know of anything in connection with the matters at issue. 7. After the said trial I took steps at once to send for White to High River, about forty- five miles fiom Calgary, and obtained leave to see Morgan at the North- West Mounted Police Barracks at Calgary, and sent nine miles into the country for McArthur, and ascertained from them that they knew the matters contained in their several affidavits filed on this motion, which contiadict a good deal of the material evidence given against me at said trial. *® 8. The said Morgan, White and McArthur reside in the District of Alberta, and had I known the nature of the evidence for the plaintiff, and that they could have given any evidence respecting the matters at issue, I would have had them, the said Morgan, White and McArthur at the said trial, but I had no 'dea whatever that they knew the facts contained in their sever i I affidavits anH :i a new trial is granted I can and will subpoena them for the trial and obtain their attendance thereat. 9. The plaintiff is, as I am informed and verily believe, entirely worthless, and if my horses ;. » left in his posse.ssion pending a new trial or pending this appeal, I may be without any re- course either to recover them or their value. 10. This application for a new trial is made bona fide and not for any purpo.se of delay. iry, in the-v , this 9th (Sd.) A. J. RO.SS. 20 Sworn before me at Calgary, in the North-West Territories day of December, A.D. 1890. (Sd.) W. L. Bernard, A Notary Public in and for the North-West Territories. 1t^ IN THE SUPREME COURT OF THE NORTH-WEST TERRITORIES. NORTHERN ALBERTA JUDICIAL DISTRICT. BETWEEN : GeoRGK SkX.SMITH. Plaintiff, AND 30 . Thomas Murphy and A. J. Ross Defendants. 1, Edward McArthur, of the town of Calgary, in the North-West Territories, rancher, make oath and say : . 37 1. I am the Mr. Mc Arthur referred to in the evidence of the above named plaintiff given on the trial of this action at the last Sittings of this Court at Calgary before the Honorable Mr, Justice Wetmore. * 2. I was staying at the house of the defendant Ross on his ranche near Calgary at the time the defendant Ross drove the plaintiff out to said ranche to take the measurements re- ferred to in the said plaintiffs evidence. 3. At the said time the plaintiff asked me " where that grey horse and bay horse of Ross' were," and I said I did not know the horses, and did not know where they were, but I further told him that one Frank Hamilton had been there and drove away four or five head of Ross' 10 horses into Calgary. 4. I never told the said plaintiff that the horses in question herein were sold by the defen- dant Ross to the defendant Murphy, or to any other person, and the said plaintiff never intima- ted to me in any way whatever that he the said plaintiff had purchased or agreed to purchase anv horses from the defendant Ross. SWOKN before me at Calgary, in thei District of Alberta, this 5th day of j December A. D. 1890. W. L. Bkknard, .'\ Notary Public in and for the North-West Territories. (Sd.) E. McArthur. , ao IN THE SUPREME COURT OF THE NORTH-WEST TERRITORIES. NORTHERN ALBERTA JUDICIAL DISTRICT. BETWEEN : « (iKOKCit: Sex.smitii, Plaintiff, .AND Thomas ML:kl>HV and A. J. Ross, Defendants. I, George E. White, of High River, in the District of Alberta, rancher, make oath and say: 1. I am the Mr. White referred to by Charles Jack.son and Thomas Jackson for the plain- tiff at the trial of this action before Mr Justice Wetmore at the last Sittings of this Court at Calgary, as being present at a conversation between Jacksons aforesaid and the defendant Ross 30 about the team of horses in question in this action and remember said conversation. « 2. I drove on that occasion with said Ross to Jackson's place and was presc" throughout the entire conversation between .said Jacksons and Ross and near enough to her . all that was said. m ' -lirf^t'T. ':■ 28 3- During such time Sexsmith's name was not mentioned nor was anything said about his being at Ross not letting him have a buckboard to hitch his team in, meaning the team in ques- tion in this action which he now claims to have purchased from Ross. 4. I remained in their presence till Thomas Jackson went back to where he was working and Charles Jackson, Ross and myself all left the place together for Calgary. 5. I am sure I would have heard such conversation if it had taken place but did not know of the trial or tell Ross anything about what I knew until to-day. 6. The conversation was about some cattle and some old machinery that Jacksons vvere wanting to sell, and Ross and I went there to see about buying a horse-rake from them and 10 had no occasion to introduce either Sexsmith's name or business. Sworn before me at Calgary, in the \ District of Alberta, this 2nd day of December, A. D. 1890. (Sd.) John C. F. Bovvn, A Notary Public in and for the North- West Territories. (Sd.) Geo. E. White. IN THE SUPREME COURT OF THE NORTH-WEST TERRITORIES, JUDICIAL DISTRICT OF NORTHERN ALBERTA. BETWEEN Geokc.I'. H. Skxsmitu, Plaintiff, ao . Axi> Tno.MAS MURPHV and .\. J. Ross, Defendants. I, Herbert Morgan, of the town of Calgary, in the District of Alberta, raiiche hand, make oath and say : — 1. I was working as a ranche hand for the defendant Ross at his ranche near Calgary dur- ing the month of June last past, and was present at the said ranche on the evening, referred to in the evidence adduced on the trial of this action at the last Sittings of this Court, when the said defendant Ross drove the plaintiiif and one Skerving from Calgary to .said ranche. 2. The said defendant's band of horses referred to at the said trial s-erc not, nor were any of them, in a corral during the said evening, or at any time during the following day, but the 30 said horses, including the team in question in this action, were running at large in a field on the said defendant's ranche. 29 * I . ( I. 3. On the morning next following the said evening referred to the said defendant Ross drove away from his said ranchc to Calgary immediately after breakfast, leaving the plaintiff and the said Skerving at his, the said defendant's house, and I swear positively that the said plaintiff, the defendant Ross and the said Skerving were not at the corral on the defendant Ross' ranche, together during any time of the said morning. 4. In the forenoon of the same day, soon after the said Ross drove away as aforesaid, the said plaintiff and Skerving drove away from the said ranche with a horse and backboard belonging to the said Ross, to look at some land, as I was informed by them and believed, and returning to the said ranchc in the afternoon of the same day, when I accompanied them to 10 Calgary, where they remained, and I then with said horse and buckboard returned to said ranche. 5. Two days subsetjucnt to the said day last above referred to, the said plaintiff and Skerv- ing walked through the said Ross' pasture on said ranche, and on their way back to Calgary and in the absence of the said Ross, stopped at the corral where I had placed the said Ross' band of horses for breeding purposes ; this is the only time the plaintiff and Skerving were at the said corral when Ross' horses were enclosed therein. 6. On two occasions the plaintiff came out to the said Ross' ranche, coming each time on a Saturday evening and remaining over the next following Sunday ; on the first occasion the plaintiff told me he was buying a bay horse and a grey horse, and on the second occasion he told me he came to buy the ranche and all the horses belonging to Ross. ao 7. The said defendant never told me that the plaintiff owned any horses, nor that he, Ross, had sold or agreed to .sell him any horses. (Sd.) Herbert Morgan. Sworn before me at Calgary, in thel North-West Territories of Canada, this 6th day of December, A.D. 1890 j" (Sd.) Geo. Murdock. | A Justice of the Peace in and for the Norrh-West Territories. / y 1^ i ■. t Ross lintiff said idant I, the board 1, and :m to inche. Jkerv- ilgary Ross' ere at e on a •n the on he , Ross, m