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The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre filmds i des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul clichd, il est filmd d partir de Tangle supdrieur gauche, de gauche i^ droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 22X 1 2 3 4 5 6 ISxn, 14Tn, ISin and IGin November, 1861. BEFORE THE HOK MR. JUSTICE BADGLEY, AND A SPECIAL JURY. HOOPEE ». LESLIE, FULL AND COMPLETE REPORT, FROM THE EECORD, THE ARGUMENTS OF COUNSEL THE CHARGE, &c. COLLATED BY J. G. K. HOUGHTON, STUDENT AT UW. PRINTED Br JOHN LOVELL, ST NICHOLAS STREET. 1861. M D M us Ai ««i the ma nptist (^mi, Banixnl ANGUS C. HOOPER, vs. Plaintiff, EDWARD S. LESLIE AND PATRICK LESLIE ". ■ Defendants. Before the Hon. Mr. Justice Bawled, and a Special J„,y fel* ■'°"' "■"•''•• '"^ «;'-«°°- A. A. DoH,o., for the De- Me8,«. Lafi,a„„k, LAFLAMte & Daly, Attorneys for Plaintiff Mea^r,. Abbott & Do»an, Attorneys for DefenLt. ' The action was for malicious prosecutio ,. Defendantsbywritsof„»» J^beflj ir„T^^^^^^ March I860. The respective Cashiers of mch Cl '"""' «.ual affidavit. Mr. Hooper, on behalf of h'sanf of Bn>°? '° '"? America, swore that " he was ..rojiki .™"'' ,<" ™tish North "believe, and did verilvand n Ms ^ '"formed, had reason to, "Defenda„ts,LesIieIndCom„anv\J. """r?"'. ■""'"'»• """"-« ;;^bo„tto.eeretetheir'^:rd:i;stdTel'S^^^^^ ".*d^'hr^Zttrheth;:^rt;^''*''' ^-^^^ " the said Bank would Ittl e r delt" r T" T '""'"' '""'S™-' the Defendants, on the SsTh of the " ™'"° ''"■"''S''-" Dpon this »a.Utrate.thatMr.Ho:;L^L'tul^;-;:::;;;t^^^^^^^^^ to the said affidavit knowing it to be false, and on the 29th of the same month a bill of indictment for pt; |.try was preferred against Mr. Hooper at the instance of the Defendants, but was found " No Bill." He thereupon brouglit his action of damages against the Defendants for $20,000, praying for contraint -par corps. Tiie Defendants pleaded in effect, that previous to the swearing of the affidavit of Mr. Hooper, they had made an assignment of all their estate and effects to provisional assignees for the benefit of their creditors ; with the option to the creditors of naming their own as- eigii^es in place of the provisional assignees; upon the sole condition that t jey should receive a discharge from their liabilities : and that they had in every respect acted bondfiae, honestly, and correctly. That Mr. Hooper was perfectly aware of all this when he made his affidavit, and therefore that they had reasonable and probable cause for caus- ing the bill of indictment to be preferred. Mr. Laflamme, followed by Mr. Johnson, Q.C., opened the case for the Plaintiff, and the case was thCi,f"* proceeded with. The affidavit of the Defendants -was put in, admitted, and read to the Jury. • • "• INTERROGATORIES SUIi FAITS ET ARTICLES. Interrogatories sur Faits et Articlct.auhmittcd to Edward Stuart Leslie. 1. Is not your name Edward Stuart Leslie, and are you not one of the Defendants in this cause ? — Yea;.: 2. Were you not, in January eighteen hundred and sixty, carrying on business in Montreal in partnership with Patrick Leslie, under the name, style and firm of Leslie & Co., and had you not so carried on business for more than a year previous to that date ? If not, state for what period. — Yes. 3. Did not the said firm of which you were a member, become bankrupt on or about the fifteenth day of January eighteen hundred and sixty ? If not, state from what time ; and have you not since been, and are you not still insolvent ? — Yes. 4. Was not the firm to which you so belonged largely indebted to several individuals, merchants and traders, mercantile firms, and banks, when your said insolvency took place ? — Yes. 6. Were not you and Patrick Leslie, when you so becarae insol- vents, indebted to the said several creditors in a sum exceeding one hundred thousand dollars ? — Yes. 6. When your said insolvency took place, were you not owing to the Bank of British North America the sum of thirty-seven thousand 3th of the ed against iiind " No jainst the swearing lent of all fit of their ir own an- (;ondition I that they That Mr. 3 affidavit, 3 for caus- le case for id read to LES. lit Leslie. lot one of , carrjring ilie, under 50 carried ? If not, ', beconae i hundred not since idebted to irms, and me insol- eding one owing to [ thousand eight hundred and twenty-one dollars and seventy-seven cents ? If not, state what amount. — I think that we owed about that amount. 7. Did not the liabilities of your firm exceed its aasets in a propor- tion of ovor three fourths at the time you declared your insolvency ? If not, state the exact proportion. — Our assets nominally at that time very much exceeded that proportion, and after the deduction of bad and doubtful debts they would not realize that sum. 8. Previous to your declared insolvency, were not the Hon. James Leslie, your father, and Henry Starnes, Esq., members of the co- partnership wliich existed between you and your brother, the other defendants ? — Up to the thirty-first of March eigliteen hundred and foriy-eight the partnership consisted of James Leslie, Henry Starnes, Edward Stuart Leslie, (that is myself,) one of the defendants, and Patrick Leslie, (the other defendant,) and from the first of April eighteen hundred and forty-eight up to the 1st of May eighteen hundred and fifty-eight the partnership consisted of Henry Starnes, myself and the other Defendant, and from this last date up to Janu- ary eighteen hundred and sixty, the partnership consisted of myself and the other Defendant. 9. Is it not true that since the Hon. James Leslie left or retired from the firm, no loss was experienced by your firm to justify the deficiency in the assets as shown by your statements furnished to the creditors 1 If not, state what loss you incurred. — No, it is not true. I cannot state tbe amount of the losses, but they were sufficient to reduce our estate to the position it was in at the time of our failure. 10. Is it not true that after the withdrawal of Henry Starnes, Esq., from your firm, a sum of over thirty-eight thousand dollars was paid by your firm to withdraw paper of the firm of Leslie, Starnes & Co., to wit the firm of which the said Henry Starnes was a member,! :; "^^ly with you and the other Defendants? — The sum of thirty-eight thousand dollars was p d on account of the late firm. Mr. Starnes also paid a large amount on account of similar paper after the dissolution. H. Is it not true that when the said Henry Starnes left your firm, you were insolvent ? Did not your liabilities exceed your assets ? — To tlio best of my knowledge, it is not true. 12. Is it not true that no balance was ever made of the account and state of the firm when the said Henry Starnes left it ? — There was no balance made at that time. 13. Is it not true that since the said Henry Starnes left your firm you have not experienced in your business any loss accounted for in your books?— No ; to the best of my belief it is not true. 6 14. Is it not true that you cannot account for the deficiency in your assets ol' fifty thousand dollars and over, since the said Ilenrv Starnes left your firm ? If you can, state exactly and precisely how you account for the same.— No, it is not true. A statement of our business and the nature of our losses are sliewn by the statement hereby produced marked with the letter Z. 16. When you became bankrupt, were you not called upon by your creditors, or by some one on their behalf, for explanations with regard to the state of your affairs and books ; and is it not truethat you never complied with such request ? No, we were called upon by some of our creditors, and gave every explanation in our power. 16. Is it not true that previous to that, between the first and twenty-first of February, ISGO, the accountants selected by the creditors, namely, Messrs. Greenshields & Johnson, repeatedly re- quested from you explanations on your business, generally, and for subsequent books and papers, which you promised to give or fiunish ? No it is not true ; we gave all the information in our power up to the date of the assignment. We made no promUe which we did not fulfil. 17. Is it not true that you never did furnish the information required by said Messrs. Greenshields & Johnson, and that you did not give them the books asked for the purpose of completing the in- vestigation of your affairs ?— No, after the assignment we were asked for all the papers and vouchers of every kind in our possession, and as Messrs. Greenshields & Johnson had made incorrect and unfounded statements against us, we did not think ourselves justified in placing ourselves entirely in their power, and therefore declined to deliver up any but the regular books of account. 18. Is it not true the Plaintiff in this cause is the Manager of the Bank of British North America, p ..editor of your bankrupt finn, for a large amount ? — Yes. 19. Did the Plaintiff represent and act for the said Bank of British North America, as one of your creditors ? — Yes. 20. Is it not true that the said Plaintiff never had any interest in the claim of the said bank against you ?— I do not know. He was doubtless interested to get into favour with his employers. 21. Did you not sell to your father, the Honorable James Leslie, on or about the 11th February, 1860, or say at what time, at Montreal,' by deed or instrument before witnesses, W. Bleakley and James Mori- son, under private seal executed on or bearing that date, certain lou of land belonging to you, situate in Wolfe Island and Howe Island, in the County of Frontenac, in the Province of Canada, being lotfi num- deficiency in said I [(Miry recisely liow raent of our Hi statement ed upon by nations with lot truetliad called upon 1 our power. ;ho first and ited by the seatedly re- ally, and for ! or furnish f ir power up hich we did information hat you did iting the in- ! were asked session, and I unfounded J in placing > deliver up ager of the irupt firm, k of British interest in . He was nes Leslie, t Montreal, ames Mori- •tain 1 0ld of ; Island, in ; lotf! num- bers sixteen, twonty-five and twenty-six, old survey, lot number four, in the second concession, lot number one, in the third concession, the east half of lot number two, in the e.„ath concession, part of lots numbers four and five, in the ninth concession, lot number t-vo, in the tenth concession, lot number two, in the eleventh concession, and lot number two, in the twelfth concession, all north of the Basset Line, also lot number one, in the first concession, lots number one and two in the second concession, lots number one and two, in the third concession, lot number one, in the fourth concesuion, lots num- ber four and five, in the sixteenth concession, lots number four and five, in the eighteenth concession, lots number six and seven, in the nineteenth conceseioii, lots numbers seven, eight, nine and ten, in the twentieth, lot number eight, in the twenty-fii-st concession, all south of the Base Line, in the said Township of Wolfe Island, containing by admeasurement four thousand acres of land, be the same more or less, and also all your estate in the following, and being .:» the said Township of Howe Island, in the said County of Frontenac, being composed of lots numbers one, two, three, four, five, six, seven and eight, and the west part of lot number nine, south of the road, con- taining by admeasurement eleven hundred acres of land, be the same more or less, and was not this sale so made by you for the sum of ^3000 mentioned in the said deed of sale, and is it not mentioned in the said instrument that this sum was in hand paid to you ? — I executed a deed on the date, and for the purpose mentioned in this question, but I could have no interest in those lands till after the death of my father. The price was represented by three notes of ■£1000 each, which is mentioned in the schedule of my individual estate annexed to the deed of assignment. Almost all those lauds were subject to long leases. 22. If? it not true that your father, the said Honorable James Leslie, was a creditor of - -ur firm for a large amount and state it?— Yes for about $28,00^/ more or less. 23. Were not the lands sold by you to your father of a much grea- ter value than three thousand pounds ? — No, the price named in the deed was the full value of my interest in them. 24. Did you not receive on the part of the Bank of British North America, end your creditors generally, on the ninth day of March, 1861, a notification and protest through the ministry of Mr. Gibb and his Colleague, Notaries Public, requesting you and your brother, the other defendant, to make a full, complete and unconditional assignment(cemo» de biem)ofail the partnership and mdividual estates, for the benefit of your creditors to Messrs. William Workman, Tho- I I It I 8 mas Ryan, Edward Maitland, and the Honorable Um.. T 7- selected by the creditors or the majority of them to "T 1' assignment for them and on their beh^alf, L1 ^J^^::^ ment and lull dehvery ot your assets were made and s«««fn.f rrh^^tl ™V" ^°"' ''°'"'' ""'' "<■'"• "Mminalion made of youi books by approved accountants, one to be named hv S,V j served upon nf. ^ '^ '" ^'^'^ '™' ''"* "° ^t^er, was int?!;t?if r ""* '" ^'•^^r the eighth day of March, 1S60, receive mtiraation from your creditors or the maioritv of thpm nr.A ! them from the BanR of British North Are^.thaireJ^^^^^^^^ the statements furnished by the creditors by approved Iccountal one to be named by you, and another by the creditorand upontve J a set being surrendered and all deficiencies satisfactorily exTainld a discharge would be granted to you ?-My answer to this iSe^- tory IS the same as that given to last preceding interrogatory! ^ T AT]/";.""*'" *^' ^^*^ ^^^''^ ^^^^' '"^ke an affidavit before J. A Labadie Esquire, in Montreal, one of the justices of the peace to the eflect that the said PlaintifThad maliciously, wilfully & corrupt v March 1860 cause to be exhibited or preferred in the Court of Queen's thrL\':id^arr^ '^^'^""^^^^ substance anTeZ that the said Plamtifi had committed the crime of periurvf-Imadft aa affidavit m March 1860 of the purport of this inL oratory and a bUlof indictment of the Plaintiff was preferred in the fame month with my sanction but I do'nt remember the date. bi« L^°°r ""* *^t'°P^ ^^ indictment fyled by the said Plaintiff with IS not a copy of the indictment preferred against the said Plaintiff? ±.xhibit No. 1 IS a copy of it or not. indkimlTt/r ""V^' r''''"*°'* ""' *^^ ^""^y ^'^° ^'^"^^d the said indictment to be preferred against the .aid Plaintiff: if not, state who ' James Leslie, to receive such fc the said credi- the said assign- ed satisfactory iencies in your ination made of !d by your said large would be reply that yo.u the benefit of )r something ta notification by ' British North no other, wa8 , 1S60, receive I, and amongst ter elucidating 1 accountants, nd upon every ly explained a his interroga- gatory. ffidavit before f the peace, to y & corruptly 1 to a certain ton the 2i)th irt of Queen's ice and effect iry?— Imade •gatory and a same month Plaintiff with at document lid Plaintiff? ir Plaintiff's Jsed the said t. state who Was the prosecutor and at whose request you did give evidence be^ fore the Grand Jury? — I have already answered that — I sanctioned the bill and gave information before the Grand Jury of my own accord. ( The questions were signed) Laflamme, Laflamjte & Daly, Attorneys for Plaintiff. ( The answers were signed) E. S. Leslie. INTERROGATORIES SUBMITTED TO DEFENDANT, P. LESLIE, IN THIS CAUSE. 1. Is not your nan ""atrick Leslie ; and are you not one of the Defendants in this caube ? — It is, and I am one of the Defendants. 2. Were you not, in January, 1860, carrying on business in Mon- treal in partnership wHh Edward Stuart Leslie, under the name, style and firm of Leslie & Co. ; and had you not so carried on business for more than a year previous to that date ? If not, state for what period. — Yes. 3. Did not the said firm of which you were a member become bankrupt on or about the fifteenth day of January, 1860 ? If not, state from what time, and have you not since been, and are you not still insolvent. — Yes. 4. Was not the firm to which you so belonged largely indebted to several individuals, merchants and traders, mercantile firms and banks, when your said insolvency took place ? Yes. 5. Were not you and Edward Stuart Leslie, when you so be- came insolvent, indebted to the said several creditors in a sum exceeding $100,000.— ^es. 6. When your said insolvency took place, were you not owing to the Bank of British North America the sum of $37,821,^^. If not, state what amount. Yes, something about that amount. 7. Did not the liabilities of your firm exceed its assets in a pro- portion of over three-fourths at the time you declared your insol- vency ? If not, state the exact proportion. Numerically they did not appear, making allowances for bad debts and losses they were much under. 8. Previous to your declared insolvency, were not the Hon. Jamea Leslie, your father, and Henry Starnes, Esq., members of the co- partnership which existed between you and your brother, the other II ! 10 Defendant ?-My father retired from the firm in 1848. The businesa was continued by Mr. Starnes. my brother and myself; and™ this last period, 1858, the business was carried on by my brother the other defendant in this cause, and myself. ^ ^ ' J- ^Af^ °fu *f ' ^^""^ '^"'' *^" Honorable James Leslie left or retired from the firm, no loss was experienced by your firm to justify he deficiency in the assets as shown by your statement furnished to the creduors? If not, state what loss you incurred ?-It is not true. 1 he losses incun-ed were such as to cause our failure 10. Is It not true that after the withdrawal of Henry Staraes, Esquire from your firm, a sum of over thirty-eight thousand dollars was paid by yo-^.r firm to withdraw paper of the firm of Leslie, Starnes & Co., to wit, the firm of which the said Henry Starnes was amemberjointly withyouandthe other Defendant ?iAbout that amount was paid by us as also a large sum by Mr. Starnes for the same purpose. 11. Is it not true that wheu the said Henry Starnes left your firm you were insolvent? Did not your liabilities exceed your assets? —To the best of my belief it is not the case. 12. Is it not true that no balance was ever made of the account and state of the firm when the said Starnes left it ?-No balance sheet was made. 13. Is it not true that since the said Henry Starnes left your firm, you have not experienced in your business any loss accounted for in your books?— No, it is not true. 14. Is it not true that you cannot account for the deficiency in your assets of fifty thousand dollars and over, since the said Henry Starnes left your firm ? If you can, state exactly, fully and precisely how you account for the same ?-It is not true, this document which I now produce, marked with the letter H, will shew that. 15. When you became bankrupts, were you not called upon by your creditors, or by some one on their behalf, for explanations with regard to the state of your affiiirs and books, and is it not true that you never complied with such request ?-It is not true. Every infor- mation that was called for was given. 16. Is it not true that previous to that, between the first and twenty-first February Eighteen hundred and sixty, the accountants selected by the Creditors, namely, Messrs. Greenshields and Johnson, repeatedly requested from you, explanations on your business gene' rally and for subsidiary books and papers which you promised to give and furnish ?-No, it is not true. Every information asked for was given in even after the assignment was made. 11 1:8. The business lyself; and since 1 by my brother, les Leslie left or ur firm to justify nent furnished to rred?— It is not r failure. Henry Stanies, thousand dollars B firm of Leslie, 3nry Starnes was t?— About that Starnes for the es left your firm 3ed your assets ? : made of the nes left it ?— No i left your firm, iccounted for in e deficiency in the said Henry ly and precisely document which that. :alled upon by planations with not true that e. Every infor- a the first and le accountants s and Johnson, business gene- romised to give aslied for was 17. Is it not true that you never did furnish the information required by the said Messrs. Greenshields and Johnson and that you did not give them the books asked for the purpose of completing the investigation of your affairs ? — No, it is not true. All books and documents of the business when requested were furnished. 18. Is not the Plaintiff in this cause the manager of tlie Bank of British North America the creditor of your Bankrupt firm for a large amount ? — Yes. 19. Did the Plaintiff represent and act for the said Bank of British North America, as one of your creditors ? — Yes. 20. Is it not true that the said Plaintiff never had any interest in the claim of the said Bank against you ? — I do not know. 21. Did you not receive on tiie part of the Bank of British North America and your creditors generally on the 9th day of March, 1861, a notification and protest through the ministry of Mr. Gibb and his colleague, Notaries Public, requesting you and your brother, the other Defendant to make a full, complete, and unconditional assignment (cession de biens) of all the partnership and individual estates for the benefit of your creditors to Messrs. William Workman, Thomas Ryan, Edward Maitland, and the Honorable James Leslie selected by the creditors or the majority of them to receive such assignment for them, and on their behalf, and did not the said creditors inform you by the said notice and protest that if the said assignment and a full delivery of your assets were made and satisfactory explanations given by you of the losses and deficiencies in your assets and of the entries in your books, and after the examination made of your books by approved accountants, one to be named by your said firm, and the other by the creditors that a final discharge would be granted to you by the said creditors ; and did you not reply that you had already made an assignment of your estate for the benefit of your creditors of which they had been duly informed or something to that effect ? — No. A document dated the ninth day of March, 18G0, signed by some of the creditors of our firm, among which was the Bank of British North America, and a copy of which is fyled in this case was served upon our firm. 22. — Did you not on or after the 8th of March 1860 receive ins- tructions from your creditors or the majority of them and amongst others from the Bank of British North America that after elucidating the statements furnished by you to the creditors, by approved accountants, one to be named by you and another by the Creditors, and upon every asset being surrendered and all deficiencies satisfac- torily explained, a discharge would be granted to you? — No, I have no recollection of it. 12 ! ' i li i!)i 23,— Have your estate by the deed of the .3rd rZa'^^mrYe.™"^ °™' S4.-Is,tnot true that tlie Superior Court of Montrll i •. jodgraeut rendered on the 2Sth February tat ™,t * ' ^ '" wherein Dama8eMa88onwa.PI»i„Hr„^^» ^ ' '" "'" ™"' yonr wife Da„:e nZ De Me td Hl'Io'e " '"'"f *" SrotltedtTo^""' "'.'"'' "-^^^ -::rsrrtri~ evidence before thoTrandJu^v Th! T ?''™" ^°" *'' «™ ^77(6 Questions were signed.) Laflamme; Laflamme & Daly. Attor7ietjsfor Plaintiff. ( The Answers were signed) P. Leslie. fnr^fn''^^''. ^IT'' °^''''^^' Esquire.-l3 Clerk of the Crown for the District of Montreal. As sucn has possession of indictmenr Produces origin^ indict,.ent preferred against Plaintiff in Marct doubi^Plir- .t ^'""*'''- ""'^ "^* ^'^'^'^^ *hen. Has no exam nfi f .' F''^^'" '"'"'^'^"'^'^ "^ *^« "^^ictment. Has examined copy of indictment produced in this cause, and says it is Alexander Maurice ora you made over 60?— Yes. of Montreal, by its past, in the case J, has declared that ' claim any dower, 3ged settlement or -My legal advisers Ben appealed from. 860 make affidavit the Justices of the iliciously, wilfully bable cause sworn inied, and did you to be exhibited or in Bill of Indict- said Plaintiff had s made but I can't ' the said Plaintiff i and state if that d against the said '' who caused the Plaintiff? If not lest you did give snt was brought 3 p^'idence before E & ualy. ijsfor Plaintiff'. k of the Crown 1 of indictments, lintiff in March, then. Has no idictment. Has 3, and says it is 58 a true examined copy. In this instance the Defendants were prose- cutors. The bill of indictment aforesaid was presented to the Grand Jury on the 29th March, 1860. Directs Registrar's proceed- ings as Clerk of the Crown. It was returned by Grand Jury as aforesaid, " No Bill." No record of the proceedings kept until the return of the bill before the Court. Can't say what witnesses were examined ; presumes those on back of indictment were examined. Witness was a witness on such indictment. Was not present in Grand Jury room when Defendants were examined by Grand Jury. When witness was examined was alone in room with Grand Jury, There was what is frequently done, a lawyer to marshal the evi- dence. We examined Mr. Delisle, witness, and the other witnesses. Hon. L. T. Drummond was present in Jury room to marshal evi- dence. Said Mr. Drummond was employed on behalf of Defendants in this cause. Cross-examined. — No questions by Defendants. John A. Converse.— Was a member of Grand Jury at city of Montreal, serving there in March, 1860. Knows Defendants. Re- members bill of indictment brought against Plaintiff for perjury before Grand Jury in March, 1860. Does not remember any other indictment against Plaintiff*. Defendants were examined as wit- nesses upon such indictments. The Notary of the Seminaiy, witness believes, was foreman of Jury. The Hon. L. T. Drummond and Mr. Delisle appeared before Grand Jury also. Does not recollect any other lawyer than Mr. Drummond appearing before Grand Jury that term. Does not remember ever seeing a lawyer appearing in such capacity before Grand Jury. Has no doubt Plaintiff was per- son mentioned in such indie* lent. Cross-examined. Question of Defendants whether Grand Jury differed in opinion. Overruled. Thomas R. Johnson. — Is an accountant. Is in partnership with Henry Greenshields ; was in partnership with him in March, 1860. Was called on by creditors of Defendants to examine books of their firm, at end of January, or beginning of February, 1860. Found books in a very imperfect state. Is a professional accountant. Books were delivered to him by Defendant, Edward S. Leslie. Does not know exact number of books. Witness gave receipt to said Leslie for said books. Our report, (that is of witness and his partner, Greenshields) at the time, embraced everything witness had to say on the matter. Witness takes communication of Minute Book of creditors, and finds it contains the report witness and I Mi 14 Greenshielrls furnished at the time. The report is shewn to wit- ness, and he acknowledges his signature thereto. Identifies report part of Defendant's Exhibit, marked B. Reads report to the Jury' It begins by " To Messrs. Workman, &c.» Said report is dated tlie' 25th day of February, 18(50. Does not know the exact time he had the Defendants' books in his possession.-about a month, or perhaps a httle more. Himself called once or twice at Defendant's place for information and books, and sent a clerk several times. The Defend- ants answered, first, they had not got them together yet; the books were not kept at all in a business-like manner. They were pre- tended to be kept by double entry; but no balance sheet was ever shewn to balance books. Certain entries were made in books by which he understood there had been change in firm, by retirement Of Mr. Starnes, but not complete. Did not see that balance sheet was struck upon retirement of said Starnes. It was impossible for a professsional accountant to establish state of Defendants' business from said books ; what was wanting for such were the auxiliary books and papers mentioned in report. They may be easily had if par- ties are willing to give them. Can't say how long he asked for bo^oks as afor said ; did so from time to time. He parted with books on account of notanal demand for such books-not certain whether it was notarial. Remembers Mr. Delisle called for them. Books asked for several times. It was at time that he was asking De- fendants for the books that Defendants issued writ of attachment to have the books. Witness and partner did all in their power to «et information required for creditors. The general purport of the report was mentioned in conversations at times before report was made, at meeting of creditors : acted as joint secretary with partner at meet- ings of creditors. The creditors were discovered by him and partner from what they learned from Defendants. Said creditors were al notified to be at meetings. The committee was appointed at meet- ing at Defendants' office ; after that Mr. Workman one of the commit- tee employed witness on the part of the creditors. The names of creditors at such meetings are mentioned in minute book of the meet- ings produced. The creditors mentioned in Schedule D, forming part of the deed of assignment shewn to witness received notice to attend meetings of creditors The creditors, witness believes, demanded an assignment from the Defendants. There was a resolution made to that effect by the creditors. The minute book of creditors of Defen- dants having been shewn to witness and he having read the minutes of the meeting of the 8th Marrh isfin +<. t -x """"'^es « » tue om March, i860, to Jury, witness says that he was prevent at such meeting and took the minutes thereof. 15 •t is shewn to wit- IJentifies report, •eport to the Jury, report is dated the exact time he had month, or perhaps fendant's place for les. The Defend- leryet; the books They were pre- 3e sheet was ever nade in books by rm, by retirement lat balance sheet ^as impossible for endants' business ere the auxiliary 3 easily had if par- e asked for books 3d with books on ?rtain whether it r them. Books was asking De- of attachment to 3ir power to get >ort of the report ort was made, at partner at meet- him and partner 'editors were all pointed at meet- i of the commit- The names of ook of the meet- D, forming part notice to attend is, demanded an ►lution made to iJitors of Defen- ;ad the minutes tness says that inutes thereof. A copy of the resolution passed at that meeting requesting the Defendants to make an assignment in favour of said creditors, was served upon the Defendants by a messenger either upon the said Sth March, 1860, or the following day. They answered said creditors in writing which writing witness believes is fyled in this cause. Wit- ness is not acquainted personally with this answer— Plaintiff's exhibit No. four, (notarial demand upon Defendants' protest of 9th March, I860,) fyled with his answers being read, he declares was executed in accordance with the resolution of the creditors of Defendants demand- ing assignment. Witness wishes to correct his testimony by stating that the notice above mentioned as having been served upon the De- fendants in consequence of a resolution passed by those creditors at a meeting of the 8th March, I860, was served upon said Defendants in consequence of a resolution passed at a meeting of said creditors on the 25th February, 1860, and that the protest served upon the Defendants was in consequence of a resolution of the 8th March, 1860. I Cross-examined.— Ead day book, journal, ledger, cash book, and one or two blotters and bill books, belonging to Defendants at time above referred to. Had some check books but not all. He is not certain about cheque books. Had ordinary account books incom- plete. The report explains in what said books were incomplete. Witness means by auxiliary books in his report, cheque books and bank books. Had ordinary account books except those last men- tioned. The books which witness had were books of the partnership, Leslie & Co., but there was one book which was continued from the old firm Leslie, Starnes & Co., spoken of in examination in chief. There were transfers from the books of Leslie, Starnes & Co., of de- bits and credits ; crediting the former firm with assets and debiting them with liabilities. All the liabilities were not entered to the debit of the late firm. Does not know in whose handv/riting books were kept. Should say books were not kept in such a manner as a com- petent book keeper would have kept them — was informed that Defendants themselves had kept their books— does not recollect when Defendants first demanded of witness and partners to return their books. The letter of demand of books by Defendants having been shewn to witness he says the books were demanded at date of same, the 27th February, 1860. Montreal, 27th February, 1860. Messrs. Greenshields & Johnson, Gentlemen, — Your report having been made to our creditora unon your audit of our books we shall feel much obliged by your return- ' h In Nl'i nil liin >H ! IIM M ing thm per bearer. We tr„at you win not comider us unreawna- ble m th,8 request, aa tliey have now been in your nossesZ, for ne.rya„,o„th We beg. however, to .ay tl.atfce IZZt We are, &c., &c., <^'g""^^') ^LESLIE & Co., The written answer of witness and partner to «„«v, a j date., .Stb February, ISCO, having been sCl H" belZuI 32 Little St. James Street, Messrs. Leslie & Co., Montheal, 2Sth February, i860. G;««^~ -In answer to your letter of 27th instant, we hea to state that as the books were handed to your creditors, and to us for a certain purpose, namely, to examine, audit, and report upon them and as th.s has only been partially done in consequence of want of xuformataon agreed to be furnished by you, we would not feel ,usd fied m returmng them until the object for Which they were placed in our hands has been accomplished, without the consent of the cred^ We are, Very respectfully, Your obdt. servants, (Signed,) GBEE NSHIELDS & JOHNSON. Witness says the demand for books was made after the deed of provisional assignment had been executed and a copy thereof served upon vvatness and partner and referred to creditors. Is not certain of date of dehvery of such copy. The minute book produced yesterday contains a correct statement of proceedings of the creditors of Leslie & Co., at such meetings and the dates of these meetings. Witne a after referring to the minute of the meeting of creditrrs of the 25th February. 1860, says that the resolution therein contained r^^^rrins to the provisional assignment was passed at the meeting, ' ll'JZT'f ?^ '^'''°'"'' ^^'"' ^"^■' ''"'"^'^ ^^ D- Torrance, Esq.-Resolved That the deed of assignment as submitted by Meara. Leslie & fin \^,^ll^ read to the meeting ia unsatisfactory to the creditors! Oo,-which has been The resolution being put to the meeting paused unanimously." I .vfiim t 17 isider us unreasona- your possession for free access may be yet sufficiently un- ■ESLIE & Co., to such demand, witness he identi- James Street, | h February, i860. instant, we beg to ors, and to us, for ■eport upon them, uence of want of uld not feel justi- ey were placed in sent of the credi- It. servants, 5 & JOHNSON. after the deed of »y thereof served Is not certain of duced yesterday editors of Leslie tings. Witness itrrs of the 25th ined T'-Z-^rring to Esq — Resolved, >•,— Which has been i I Plaintiff was present at meeting of the 25th February, 18G0. Has no doubt that a copy of provisional assignment had been communi- cated to creditors of Leslie & Co., as appears by minute of said meetings. At that meeting of the 2 th Ftibriiary, JSGO, William Workman, Edward MaitUuid, Thomas Ryan, and Hon. James Leslie were named on the part of the creditors to receive assignment from Leslie & Co. Believes the said lion. James Leslie then named was the Siinio Mr. Leslie named in deed of provisional assignment and knows no other Hon. James Leslie. " It wft3 moved by George Moffatt, jun., Esq., seconded by James Torrance, Esq., and resolved, That Jlessi's. Leslie & Co. bo called upon to make an unconditional a.ssignment of the entire iiroperty of the firm as well as that of the individual partners, to Jlessrs. William Workman, Edward Maitland, Thomas Ryan, and the Uon. James Leslie, for the benefit of tlieir creditors. The resolution being put to the meeting passed unanimously. It was moved by Mr. Hooper seconded by Mr. Scott, an<' .'csolved, " That the secretary, Mr. Johnson, be instructed to transmit copy of the proceedings of this meeting to Messrs. Leslie & Co., and to request their immediate reply. Witness says that he transmitted a copy of proceedings of said meeting to said Leslie & Co. Witness identifies letter here pro- duced, dated twenty fifth February, ISGO, which accompanied the delivery of said last copy of proceedings. 32 Little St. James Stbbet, MESSRS. LESLIE & Co., Montreal, February 25, 18G0. Montreal. Gbntiemen, At a meeting of your creditors held this day, I am instructed by Resolution to furnish you wiUi a copy of proceedings. In accordance with that resolution, I herewith trans- mit you copy and wait for your early reply. I am, gentlemen, your obedient servant, THOMAS R. JOHNSON, Secretary. The report of witness and partner, read to Jury on affairs of Leslie & Co., was submitted to creditors at said meeting and formed part of proceedings thereof. Identifies copy of letter of 27th February, 1860, as copy of letter sent by defendants to witness and partner after receiving copy of said proceedings of meeting of 2-5th February, 1860. Montreal, February 27th, 1860. Sm, — We beg to acknowledge the receipt of your favour of the 25th instant enclosing ft copy of the proceedings at a meeting of our creditors held on that day. We regret to 18 err ;^=:;;r:;:; i:::::^ r^x;: r l:;:^' ^"-' -r- - --' raut. Wo w,„... ...spectn.,., ..^.eJt to our 'ZS:^^'"t::r:::Z!^'''' ''T; to . -.opy .,f „,is rc,.o..t, tl.at we may know the precise „a. r f e I " ,? , ' our stHtomonts nuJ hooks , nn.l wo Imvo no .lo ,lu whate "^J^'<^" '"^ ""»lc to roturncl to u., wo s,.a„ bo able, as wo as.ure ,o wl ^^ . : il .". Am "t 7'"' any apparent errors or discrepancies. ^' '^""^ '° "'''"'" We arc, Ac, Thomas R. Johnbcv, Esq., (>^'gncd,) Lbslib & Co, conv o • ^'^ '"•'' ""''^ ' Sun,lay._Beli.ves did not trunsnut copy of oport .n qt.o.st.on to d...;.ndu..t. with copy of said procoed- n,g . The report was ,n the Iwtnds of creditors at said i m-otin^ 2otk lobruury, 1860, and at their disposal. Identities letter of 2 tt February, lS(iO, as that set by witness and partner to defendants on receipt of tb.eir letter of 27th Februtiry ISGO "'^'^"^'^"ts I ii 33 Little St. James Street, Mt.«.o. t p r. ^toNTKEAL, 2Sth February, 1S60. JVlKssRs. Leslie & Co. Goukmcn -Yom letter of the 07th instant has been received and nj rop,y I a,n instructed to say that the report of the Accoun- tant is still incomplete owing to the want of further information, and It IS satis act to lind that you are willing to furnish any intbnn- at.on required. The creditors will therefore feel obliged if you will e them have your bank books, check books, blotters, accounts sales, ..counts current, retired notes and checks, with any other On r. ceipt of these auxiliaries, the audit of the books will be com- pleted without delay, and the books can then be returned. It will be necessary to make certain entriea in them, to which we presume you have no objections. ^ I am farther directed to state that the creditors are disappointed at receiving no answer to their 3rd resolution, dated 25th Ltant requiring you to make an unconditional assignment to the parties' selected by them, of the entire property of the firm, as well as tha answer on this point, or your non-compliance witl a 48 hours will |Hi|! ■ M lare wItFihold, or iiro iin- most Hinccrt'ly to uMHiiro .11/ moinont to givii them pcct bused upon n report wo lire completely ij^„(,. "iro in fniniedaenliilea '("the objections nimlu to liiit on our Ijooka being willing, fully to explain LiBLIB it Co. s did not transmit y of said iiroc(>ed- 1 at said inootiiig, lioH letter of 2Sth iner to defendants i 10 be considered by the creditors as an absolute rdnsal to accede to their dtuiiaiul. Waiting your reply, I remain, Gentlemen, Your i-fspectfully, (Signed,) THOMAS II. JOHNSON, Secretary. The Report of Messrs. Oreensliiclds and Johnson, which you wish to see, lays at their ollice, where you can inspect it. It cannot how- ever be comi»h!t(!d until the books aro written up. (Si^med,) T. R. J. Identifies copy of letter of 2!)th February, ISGO, as copy of letter sent by Delendanis to witness in answer to his letter of 2Sth Febru- ary, 1800. . James Street, I February, ISGO. as been received, t of the Accoun- ther informatiouj rnish any infbrm- diged if you will letters, accounts with any other rse of the audit. )ks will be com- iturned. It will lich we presume ire disappointed id 25th instant, t to the parties < as well as that 1 to request an i 48 hours will MoNTitEAL, 29th February, I860. S*V,— In reply to that portion of your letter of yesterday's date, refer- ring to a resolution of our creditors on the subject of an assignment, we beg to refer you to our letter of the 2.'3th inst., enclosing to you a copy of a provisional assignment .iiade by us on the 24th instant, and also, to the terms of that deed. It appears to us tiiat there could not be a reasonable objection to the course indicated by that deed being foMowtMl, namely that our books should be written up and balanced, and an opportunity adbrded us of making a specific offer to our creditors. It is quite obvious that until our friends are made aware of the exact state of our affairs, we cannot expect them to aid us with tli(!ir names; and they can only acquire that know- ledge from our books and accounts, the completion of which to date, we are prepared to undertake at once under the direction of our provisional assignees. If wo cannot obtain the support of our friends in making such an offer of compromise, as will satisfy the creditors, the whole of our estate is to bo given up to assignees of their nomination, subject to no condition but that of our discharge, a condition without which we believe an assigimietit is almost if not quite unprecedented. Though we cannot think those conditions unreasonable, we are peifectly will- ing that our provisional assignees should at once make over our estate to the persons named by our creditors on our creditors accept- 20 iiig tiii' fisaisriimciit, mu! (lim•I^llr^iM,^( lis, an our imn-isidriiil iiNHiniimi'iit ciial>li's tluiii to (liMiritTdiiiotH'r of rMii|»roiiiis,' is drrlinnl : lliniigh wo miiNt, stiy (Iiat, we lliiiik (lie mod.' ((IncUHiix the cstiiU! by a (•niu- f«Mitioii, whoii iii(«!r«-sts air so coiiipliratiMl and coitllicting, iiiiicli (ho BfuiW adviintagcoiiN for all parlicN. ^Vitli Wiiiivd to I he it'(|iii'Mt yon iriiikt' for our Niipplcmcntary hooks and voncliciH \v(> must miy that wt; hold them only a.« agcnl.i tor our provisional assiirnct's or lor any assi^nc's that may he c.MiuitiiH'd ivfipicnts of our estate midcr the nomination of oiir rreditorh. Wo do not think thaf they or we oM^s,'ht in reason to he eiilj.wl upon to liaiid over our hooks to any one lor complelio'i : and vvi; decidedly ohjeet to any iteisoii vvhoinsoevcr inakiiij; euirios in them exi-ept with our express consent, which wo have not yet given to any but our provisional assittnees, ^\C hei; also to cull the attention of our creditors to an ndverlise- nient published by our provisional assignees in the daily papers, for the i)urpo8«'8 of which wo have, i>ro tempore, authority to act us their agents, and our insf ructions are to deposit to their credit in their cai»aeity us such assignees, all monies arising from collections or Otherwise from our assets to await th(> action of our creditors. Your obedient servants, (Signed,) LESLIE & Co. Thomas R. Johnson, Esq., i TTaa some recollectionofJIr. Abbott, Advocate for the Defendants, Leslie &Co, coming to witness' ofliee with two or three of com- mittee of creditors of Deiendants. He went there with Mr. Work- man ; does not remember whether it was at a formal meeting or not of creditors of Defendants. There was a discussion at that time about the terms of the ))rovisional assignment. He recollects that on the occasion in qufMni, \lr. Abbott oFcred to put a clause in the assignment, by which tlie di?c!;irgc ther Iv ^^iven to Defendants* by the creditors, won I 1 be null and void, in case they discovered any fraud or malpractice in the conduct of the Defendants. The mem- bers, creditors' assignees were named at meeting of 25th February, 1860. The creditors' assignees, exclusive of Mr. Leslie, one of the assignees, were present at meeting in question, when M'-. Abbott was present. This interview was after the 25th February, 1S60. This was an informal meeting, as there were no minutes of it. If there were any minutes of the meetings of the committee, they were very few. The purport of Mr. Abbott's interview was that the discharge 21 •ov'iNidiinl iiNHii^fifficfit is (IccIilM'll ; tlioilirh tlic cstiih! by n (•(•iii- lonllictiiig, iiMicli lilt; iipplt'iiu'rifiiry hooks Illy ni* iig«!nl.^ for our iiiiiy hv fi>iistitin«'y Utd'eiidants to witness uud partner. Tills letter was coiuniuuicated to creditors. MoNTiii.M., 2'Jth Feby., 1 -• ('.O. Grntlnnrii, — We refer you to our letter of this din "nilate lo your ]\Ir. .Jidnison, for information as to our intentions with regard to our books already in your possession, and tlit; supplementary books and docuMUMits which Mr. .Johnson has re(piired troni us. We trust that you will not consider it reasonable longer to retain our books : and that you will be good enough to ret mm them to us forthwith. At the same tinj(! w«! beg to reiterate the assuranci! which we are authorized to make by our provisional assignee"^, that during their continuance in that capacity, which \v»i presume will be but t,empo- rary, free access to our books and tlie fullest inlbri .atiou will always be given to any one representing our creditors. Your obi'dient servants, (SigiuMl,) Li:SLIE & Co. Jlessrs. Greenshields & Johnson. Books were not given up on receipt of this letter — considered he could not dtdiver books without order from creditors — Ii't'tained books until siiisir. rcrciidlcation was served upon witness and pai iier to reven- dicate books — Had some hints given him about the .-^ rvice of this writ of sdisic rcvcnd'uuiiioa — It vvas not a notice by Defei dant's C(jun- sel — was from private source — Does not remember wnether books were removed from olfice at time of s(!rvice of said writ — . as absent at time — Some time after the service of said writ witness gave up books to Defendants upon order of creditors — when books were dei vered they were delivered from olliceof AFr. Lallarnme — the ofiicer cl. rged with execution of said writ could not lind buok;^ in witueas' !lice — Mr. Greenshields toUl him he could not identify books, there weje so many in the ollice — The said books were marked with initials *' L & Co, " of defendants on back — Identilies books now in Court that were in his possession — There was a meeting of creditors at ollice tC witness and partner on the 3rd March, 1800 — PlaintitF was present at that meeting — The correspondence which had taken place betvireen De- fendants and their creditors was read before the sai'- ndonvs,, oMlH. cr..li,.orHM woll us our,s.lv.s ,., J, J^^^^^^ -tnlo n, a, posuion .. invv.nr Ihn pa.sil,iliry of su..h ,n' i;..^ u Ml ISO ,o .vn.l.M- nnnnvssary an.l ,,.. pn-v..,,, (u,-(lu>r I..J. 1 .,,,,„,,.., U.« Im«I„.v.. w,.h,,v„ ..H....,...l (Lis l.yn provisio.u.l assi^MMu'nf, rv- prnpo" :-'""'■' ''"""'"' '"'•' "'"'' -^'^""""" - -'"H^ following «• K. pn.vi,l..s form. invosli^atioM oC .„„• hooks nn.l rs(;,|,.., n.ul..,- 'I.o snp..rv,s,on ol ,|,o ussi,u„....s, an.l (or a ropo,(, l>y ,,|.,n/(o ( ., <^'V.I.(ors. us soon as on,- s.von.lary l,al.iii(,i,vs n.a(,,n-o. -'. II uo ran (l,.M. oH;.d, a sa(,is(iM.(„ry s..(l,|,.n.ni( I.y a conn.osKion no^!l;!n;!7''"V'"''^'T "'"'""''"■''' ''••'•>''^ ^ u u ppo,u(...l. or In- any o.l.or assi,„oos, u-hon. (,ho n-..,li(ors n.ay M'U'i'l, wi> rt'coiviiis-- our discliar^c. ^ Vonr ol)(>(li('ri(; servants, Moss,-s. GKKKxsiriKi.ns .V Johnson-, T,„... o T Q'^':""':f^, 7/// ilf^/-r//, ISr.O. Pk.k S.w.-Iam >n,n-h oMio,.,! |,y ,,,„ ,,,,,„,,,.. ^.„„ , "';vn -n. nu« on ,l.o snbj..,, of n.y sonVs ,.s,a(o, anil v.ry wiili 2 nllaM-s, as 1 undiM-stand i(;. ^ It appears (o n.o (l,a(; (lu- oon.plainis of (ho n-o.ii(;ors tnn, eluonr "P- t-o l>o...t.. First, that tl.o hooks do not oM.il.it n.rv (ly (.^ to A . ; J-!-''"-' <'-y''-- mado a provisional ussiga- eXl " ' ""' «i'<'li'iriiccN 'I lli.'il. i(. would \)v. ^'•'Ivt'n ((» pliicc oiir »l' Niich prcClTCIlCCH, ■llit>r l('u;iil ('\|M>ii,scN. •ii'il iif^si.t-uiiu'iil, cv- I'N.'llliIlM- U. |).«|i,sl(t, !■ if^ <*l'ili(» ('(»ll(»\viiig >< find csl.'ilc, Hurler >ii. by Uioiii (,(. (,|,„ tiro. If l»y fi. composition I IIS. |> by (.Il(( USMicrilcnM tho crt'(Ii(,(»iH limy EKLfK &, VO. Ik M,iirf,, ISfiO. • vow hiivi* fiilvi'u 111(1 vi'iy wiliiiijily 111 the position of iiloiM turn cliicflj libit, c'orvccljy (|io oxpiuiiatioiis iind rovisioiittl jissiga- t creditors of the oil that tho linn's « ih'st iiieetiiijr of iinato alutoiiioat. bom thorn, ami 28 that until tlioy iiro rninlly poHled up nnd liiihincod, it \h iinpoHHibio to give tlio i',nMbt(M'H tii(' HMpiiHitc. Hljiti'iiiciit. of their MllIiirH. 1 iiin iidoriiKti! Ihiit Ihey hiive oHereij nnd Ntill olliir to iiiive llieni posted up by II e.onipeteni, (iccoiintiint, lit the ejuliesl, poNsibJe inoinent, nnd then to Nuliinit f'nil detiiiied HtulemenlH to tlieir cre(htorH. As l,o the provisional assi^rniiieiit, I beir to say iJiat I also am a parly (o it; tlia,t the Ontario Manit, represented by Mr. Slariiew and myself, are two (d' the larirest eredildrs of tin; esl.a.te ; and lliar MrM. I'atriek Leslie'H elaiiii lor dower is also a, very lar^re one. So that the provisi(Mia.l assi^rnees represent the creditors to a, niueli ^'renter extent tlniii the iiHsiLrm-eH niinied by the e.reilitors themselves. Apart Innn this, Imwever, il' the e.reditois take tin; tronlde |,o read tho assiuniiK-nl, a.nd a letter addressed to them last, W(;ek by fiCslie iV, Co., ihey will liiKl that it is in their power at oiiee to obtdin tin- asHiL'ii- meiit ol tho wlioh! to assiirneivs of tladr own nominal ion, sniijeefc <»nly to the ,si;rantin;f a disc,iiaru;e to the lirm, wliicji diMcliarge the firm are advised, would be invalid if there were fotmd to bt; any framinh'nt eonecaliiHMd,. It is impoNsilde that any creditor can consider an (dfer o( an im- mediato and complete wurrender of tlii' whole estiHo with the solo condition of a, disclau-j^e, either " an (mtra<^o to his feelings," or " an intohn-aJile injustice;" nor can creditors reasonably oliject to an assiirimient nuule only io protf^ct the estate frmn preliirential claims until the linn could make an ollitr, which assignment is terminable at (iieir own pieasun^ If the cnnlitors really mean to dema,iid the estate, williout i,'rarit- iiig a, ul partner out. At sahl inter- V ow, creditors had no objection to a joint accountant with witness a K partner Has no recollection that this was the principal difll culty at saul n.terv.ew between Mr. Abbott and cnulitors. lieads nnnntes of meeting of creditors of the Hnl March, ISGO. Identilies tluul resolution entered ou minutes of that meetin-. At a meeting of creditors of Messrs. Leslie & Co., held at the olfice of Messrs. Creenshields.t .Johnson. No. .%> Little St. .Tames Street. Montreal, on Saturday 3rd March, ISGO, at 1 p.m., were present • Messrs Thomas Ryan, E. Maitland, W. Workman, W. Sache (Cashier Molsons P.ank), J. Redpath, .Tolm O^tell, Mr. Hooper (re- Fos.mt,ngI],u.k of B. N. A.), Mr. King (representing I5ank of ^L- tieal), Mr. Scott (representing H. Routh & Co.), James Oordon, ?ift "n'^Ar I'-J^T''^ J""»"^ Torrance, Henry Chapman, Joseph Tinin G Mollatt, Junr., I). Mir,.hell (Pigeon, Sanvageau & Co!), Mr. Chai)lin (representing Mills, iMattice & Co.). On motion, J. Redpath, Esq., took the chair. The meeting being called to order, the Secretary was requested to road rhe minutes of last nieeting, which was done accordingly and the mimites adopted. "^ ^ The correspondence that took place between Messrs. Leslie & Co. and the committee of creditors was read and laid before the mectmff. I 25 k a (Ipod of transfer ; wliich I bolicvi) to imrt of the assot.s of I liis cst.ifo, |)iij-, the ited tlie wlioln on 3 done who obtiiined AMES LESLIE. li.r„l.u-lv notifimi f,. i Wliich being put to the meeting passed, 15 for, 3 against (R Ce^ SnnZlit'V'''"- '"**' "^""^^' ^'^ '''•■ ^^-'' -<1 -solved,- and e V f i .1', ""''"""'' ^""° •"'^''^'' '^" --«"''^'>1^ time and u u>. facli y will be graato.l by the creditors to Messrs. Leslie ^i Co. for bringing up their books and elucidating their t.tenet by approved accountants, one to be named by Mess.rLe H P. another by tlie creditors, and that upon every asset -d, ' interest o- oihnv^■^,■,c,.. i • , -^ ^^' ^"" i«versionary ■uiLiL.sc o. otnciwise beini' surrendered niirl nil -i^r • • ... to^ny ..,,„„„..„, .. „«„.,;^„ „,„ t';';itt""'°"°'^" "°""""- n liicli bouig put to tlie iMoti„g, passcl. TiffinXn:^-^^,^:^^ "^'-"- ^^^^^ --^^^ ^y Joseph That Messrs Workman, Maitland and Ryan be authorized to carrv out the foregoing resolutions—Passed. ^ The meeting then adjourned. (Signed,) THOMAS R. JOHNSON, — . Secretary. ^enT'^TrTf "*T °" "'° '^"' "»'-<^''' "S«" i Plaintiff w„s pre- Tl,i,- ? ? FoceJiiig meeting were read and adopted T ni een cre.litor, were present at meeting of ]3tl, Marcl 1300 Ide,,.„,es resolution of meeting of ,3tl, JIard,, ISGC by w 'ic 1 1" de S, °'""'' "'""^' "<=" '■«^"-*«^'' '» ■"'-!■ goods of Ata special meeting of ereditors rfltaill~,i;;;^j"^r~r,— the ofhee of Greeiisliields i- Jolmson 3» I irtl, i T c Montreai, o„ Tne»,ay, l,3t„ uZ^^^^^' '"""'' «"-'• J^ere presen, Messrs. W. Molson, K Mai.iand, T„„s. Uya,„ Mar- ■^ing. , James Torrance, Hooper, John Red- 27 )unsel obtained for the ■t, it was moved by D. Hid resolved, — ' notiliod to maiie an tors in the hands of Kyan, and the Ilon- for, 3 against, (R.Cas- anting ; ]\Ir. Noad and Ryan, and resolved, — , all reasonable time ors to JMessrs. Leslie :iiig tijeir statements Messrs. Leslie & Co., set, and reversionary deficiencies satisfac- nn. econdcd by Joseph 3 authorized to carry JOHNSON, Secretary. ) ,- Plaintiff was pre- irch, ISGO, was that read and adopted. 13th March, I860. 8(50, by which the i of British North to attach goods of lie & Co., held at St. James Street, \L Thos. Ryan, Mar- tooper, John Red- path, i). Masson, James Gordon, ]\[r. Lnflamme (by request) D. Tor- rance, Josei>h Tiilin, (representcul by Cooper), IMr. Mathews. On motion Mr. Redpath took the chair. Tiio meeting being organized, Mr. Johnson was rerpiested to read the minutes, whitsli was done, and adopted. — i\[r. Johnson was re- quested to read the notice served on Messrs. Leslie & Co., with relorence to the assigiunent. It was then resolved and carried unanimously. That the IJanks represented at this meeting, viz., the ]\rolson3 Bank, the Bank of British North America, and the Bank of I\Iontreal be requested to undertake tiie duty of attaching the property of the debtors and take such other steps as may be necessary, and that this meeting do adjourn until three o'clock to-morrow to receive the decision of the Banks. And at a meeting of 14th IVIarch, ISflO, said resolution was ap- proved of. Identiiies agreement dated 13th IMarch, ISGO, by which creditors agreed to pay, iiro rata, the expenses of said attachment, and submitted and approved of fit meeting of 14th Slarch, ISGO. The signatures to said iigreement were obtained by witness and part- ner, and greater part were procured at witness's office. Montreal, March Utli, 1860. At the adjourned special meeting at 3 o'clock this day: Mr. Redpath in the chair: were present; — Routh k Co. per John Ashell, J. Redpatli, D. Torrance, Edward Maitland, James Torrance, Thomas Ryan, E. H. King, fur liank of Montreal, Alfred Masson, for D. Mas- son & Co., Angus 0. Hooper, for liank of British North America, Haviland Routh k Co., per W. Scott. The resolution of yesterday, having been read, Mr. Hooper and Mr. King stated that the linnks liad decided to the resolution of the creditors, and would each attach for tlie bei.olit of all the creditors, and luul instructed Mr. Lallamme to proceed, who would be prepared, and would attach to morrow. Mr. Redi)ath, the Chairman, then directed the accountants, Messrs. Grecnshields & Johnson to wait upon and write to all the creditors, requesting them to sign the docu- ment, binding themselves to share all the expenses incurred rateably, for the benefit of all the Creditors. After some desultory coL.-ersation, the meeting adjourned at 4 J P. M. Extracts from proceedings of meeting of Leslie & Co's creditors, held at Montreal at the office of Greenshields & Johnson, Accountants, on the 14th March, 18G0. " Mr. Redpath, Chairman, then directed the accountants, Messrs. Greenshields & John- son, to wait upon all the creditor?, requesting them to sign the document binding them- selves to share all expenses incurred, for the general benjlit, pro rata." COPV OF DOCUME>fT REFERRED TO IN ABOVE. We, the undersigned creditors of the bankrupt firm, Leslie & Co., hereby agree nnd bind ourseWes to pay a proportion of all costs of any description, whatsoever, and of 28 !l! ;1 % 1 i ) I i i ■ f ■ *11 dnn nmnRog wliicl) nmv arise out of (i,n «- -ay be „.ko„ i„ the n,u»c, U " „ .r: r: T," " /";^ "•^^' ^---""*f« -'-b or .1,0 respective mo.nl.erH .iK-n-of ,iT, ^^7'"'-'"- ««-->^t tl.o sai,l firm Montreal, ,l,o Hank of li.i.i.l, V, ' ' ' """" ''" ""^''"■'^'•'1 ''^ the li,t„k „f the Lenellt o, the cro.litors, and wo 1.2,!' '• "^ ""■y "'-r ''"on. n.0Ht a.ivisable for 8)..ue i„ all cs.s a,.a .la... J ad i 7^ r """' ""'^ '" '"' ''"'' '""• ■— *'- I. lUcilANA.V, IlAlmiS.t Co. n T Gr,.K..,.,K. .MoKKATr & Co. ». To,.,unok & Co. J- & J. JliTC.iKL.,, „ '"'"^' ' '•""''-nt, Molsona I3a,.k, JnO. (),STKr,I, "■"• ■^''*"''-A^'', TVLKB A Co. J. Uk,.,.at.i & Son f/'"''' ''""'"'^'••'■K & ('o. A-V.U..S C. Hoo,.K„,'Manager, n n N A p^;"' '""^^''^^''^ * ^'°- IlAv„,,AN>, I{,„:t„ a Co n !; "•'"' '^'"""S'-'''' ^'*"'' »f Montreal, Montreal, L.tl. JU.c, laeo.' """^ * '"• ^-~:^^^i::!:^t:::i,t::^;,:;^^^^ pl«ye.l by B„fo,„|„,„» ,„ „„,,,„ ',.'';, ','•""':"»" ''"'1 ^™" ™>- aware that M,-. l!eU.„„„ ,„ad„ ro nor i," I , 1 J ! '""'■ '' !>*...»„.. a,.™, .0 I..orrXe::t;'at'lr;t.^^^^^^^^ ISOO. • "• *"" """'" " "™ !'"'■■'■■<•■ Stl. March, ad,W t";™ .wT'T"'" °'"*-''°°'' °f ""f-"'""" '■-' "ot been sai.l book ; d J noT? „r ' f°°f ""'"''°'' °'' ^"""-"'a'k, i„ conoot. i c ^I S l" '"" "; """"■ ''°=°»«' «"^ywer„ not pa.e of ca.-bS;'';::;LTrr;:ir^^^^ -»^ - r legal proccpdinffs which itors, nfraiiist tho aaiil firm aiithoiizod hy tlio liimk of )ns Hank, npiioinkMl hy (ho ■y ili-em most ailvisable for to pay each oiu- rc-spcctivo •ith any such proccciliiigs k Oo. ivsidcnt, MolsonaRank, i>, Tvi-KB & Co. CK & Oo. IS & Co. iimgor, J3aiik of Montreal, wliich riaintiirwas April, ISGO. II the 5lh Api-il, I8(j0, at 1 to tako out an action lie assented. o bring tlio matter to an ^ furtlioring tho object to ' the case. es office assistance, liuiiG hadbftoii em- 'f their allhirs. la iiul produced with road yesterday to in ]\rr. Abbott and le 2-ltli February, t positive wliether before Stii March, ants liad not been ^Vitucss or partner 'f pencil-marks in SB they were not mary, 1859 ; tiio 59. I 29 IToN. James Lest-ik. — Ts fatlier of Defendants. Is person named in provisionai deed of assignnicnt. Madt; pun^liase of property from his sKii, Edward S. Leslie, on the (llli February, ISGO, which was contirnied in writing by deed on llie 11th February, ISOO. Said property is situated in "NVolfe and Howe Islands, County of Frontc- nac in Upper Canada. This was reversionary property, which he, witness, hehl by the coiu'tesy of tlui law. (^ucstiiiu, — Take connniniication ol' the doonnent now sIkhvii to you, pur[i()rting to be a memorial to be registenid pursuant to the statute in sueii case made; and provided, of an indenture of bargain and sale made on the 1 Kli day ol' February. 1800, between Edward Stuart Leslie and you ; and state whether that document was not drawn and executed at your re(pu^st ; and was it not duly registered? Aiisur.r. — Witness should think this document was not drawn at his recpiest, because the memorial purports to be signed by E. S. Leslie, and this document nniy be a cojty. lie does not know. There was a memorial drawn for the purpose of registration of the deed he has mentioned. Question. — Have you read the document in question? — No. Qucxtion. — Read the document in (piestion, and state to the best of your knowledge, whether the one which is now exhibited to you, is an exact copy of the memorial of tlu! purchase you made for the purpose of registration in Upper Canada. Defendants object to the production of the document in question being copy of a memorial, and being insulHcient and illegal tes- timony. Objection maintained. Identifies signature James Durand, affixed to the document now shewn to witness, the same document as above stated, to be signature of James Durand, the registrar fur tin; County of Frontenac, the said papermarkedYfyled this day. Can't say whether the said document is an exact coi)y of the menuirial. Can't swear to the identity of the lots mentioned in said document Y as being those bought by wit- ness, except four or five of them, and believes their admeasurement not to be correct as far as Wolfe Island is conc,i,l Z '","'°""'>,»"<" his sou .£3000 i„ l,ree „ole, of £mn "'' '""'»'"' "<"" year from it, date, witlit^t « eTorIC: ^ T") ""'^ T^ d:;;ghter "' """■■ "'"'™""^'' "^^'P' "-' "» -Fese^ed l; Cross examined. — Paper X of nnfi^nrlnn+o i • i he says that he recollects ontyatv of tt W.,':"" '" ™*""'' but has „o douht that it co„,ii„,rcorL st 1, T .T"" w"';''' These .rdf;:,:'';; ,:l irri^'t i' ::„ '■■?:" '-""■°"»^; derived from these lauds is betwceu floo atd i o n™'"™"'' H« ' ks average revenue received by ll,, /of' J !""""'• Made a statement of said revenue s„me'ti„ra"o m^irt™'™- "dti^jz-r rtir'tiif r:"i tt» -" - agent for said lands during sovL ye rs Thl . ^'r'"'" '^'"' ;s:t:r:c-r,-^s^S::SirSt^^^ aeeount „ his own debt, according to the lajs f Z^'cir 830 000. If Dofejidant Edward Stuart Leslie wished to ,1.f,., i , ere , tors, he might, according to the laws of Xper c St paid over to witness that sum of £3000 on aeeou" t oflj 7," w^ue would have been a legal payment according ,„ Xt; eiedito.s. These landa are the lauds referred to iu general terms in 31 tlie said Jlrs. Loslic property in Upper ) the law of Upper by law of Upper • The said cojiy is !• the lots inentioned lio purchased fi-om h but he purchased in Wolfe and ITowe )ni his mother, and r lots bought from ible each note one ss is aged seventy- creditor of Defen- c represented hig shown to witness, herein mentioned, nt of the lots he le also recollects lerein mentioned. The gross rental ^•350 per annum. !313 per annum, making it ^313. scortain value of Said person was le of the person said property at these lands once isidered his son's :3000. Witness he might appro- 11 said lands, on Upper Canada, bout $2S,000 or to defraud his r Canada, have lit of his debt, > law of Upper le assets for the neral terms in the will of Mrs. Leslie as having been bequeathed to her children in equal portions. She had four children, so that Edward S. Leslie would have had but one fourth of said lands, and that only after the decease of the witness. Witness was one of the assignees named in deed of provisional assignmcut. Up to time of execution of said deed, witness knew what defendants were doing to wind up their estate. After the execution of said deed, he was absent in Quebec. Witness had no intention to conceal anything from the creditors when he accepted the uoniination of himself as one of the assiijnees of provisional assignment. Would not have accepted said olfico if assignment had concealment for object, or permitted any concealinf. Knows no concealment or secretion on part of Defendants of thetr estate or books at any time. The object of such provisional assif^n- ment was to keep estate together for benefit of creditors. The pro- visional assignees were prepared at any moment to assign the whole estate to assignees nauied by creditors on condition of their civiu"- Defendants a discharge. Witness sanctioned proposition of Jlr. Abbott made at interview of Committee as aforesaid, that a clause should be put in the assignment to be made to the effect that the discharge would be null if any fraud or mal-practice were discovered on the part of the Defendants. Rc-nxaminc(l—E.!xs sold some of lots purchased from son from S to ]0 dollars per acre to occupants, who had made considerable im- provements in those lots. The revenue of said property last year was £^50. In that sura were comprehended the arrears of several years, and price of lots sold. All lots purchased by witness are under lease he believes— he does not know the actual state of these lots as he has not been there for 20 years— The gross rental is from d:350 to ,£370 per annum— Ap- plietl to no one but Mr. Kirkpatrick to ascertain value of said lands —Witness bought son's reversionary rights in said property— under- stands that according to laws of Upper Canada his son would become absolute proprietor of said lands after the decease of witness— Was advised had a life estate in said lands by law of Upper Canada By Mrs. Leslie's will the said property was to be divided among children generally — declares has no doubt that his son and self were the only persons who had any interest whatever in the land purchased, accord- ing to law of Upper Canada. Bij Jurif. — The reasons that witness bought said property were that several creditors in Upper Canada were endeavoring to obtain judgments against the Defendants, and that he was informed that the person first seizing lands had a privilege over all other persons in .82 sei/o tl.«.-e, ,„.vi„ua to „l„ ,„ „ j,„,,„„T,: .„','',» -;— creditor. Ho kiiovvN f),..^ „ .. i "^''"'•^'^ s.iki (ii,|,tor by any b»., ,,,.,.,,.,; ^.^izi:;:;:::! V"" ""?' '""« queiit to cre.litorsliaviii.r 8(10(1 n..f..,ul„ / "-"'^'^ '""" ' "'it ntibse- ""■'\ ...a. 0,,,,.,. <....m;.r:',^ ■ : -..^ ,-'j;'-,"' «"- l.e moiiin<' n Ui.i),..- p.,„n,]^ lAfi ■ J'-'o'^'«' t^ witiiotii, sum- v^s tw t,. i:.^i:c:^:^;o.;:t:r^'^ir tSr ^* sit.OM wa,s made i.ulirectly to l.im this ve TJ ^"'"^''^ civditors, to the olloct tint they woul live b 'ckf ' T ^"t "' *'^' notes given as purchase moncvr ."''*"*''' '"^'' ^'""^^ ness would dve up ud nZV ''"' ' "" '""^''^'"" t"''^* ^it- said, witu^ -Z.^ ^/: ^:^^^ ^'''' ^r '' "=• '^« "^- p..pe.y p-ovided that :ai!r ^:^it::^ t:!^^^ ^:z 'f seigu.unal property of Defen.lauts iu Lower C^mdu vi ° ' ■^'^ ting that creditors had right to same wL ' 7 ''^ '"^''''^^ of son's right of propert/in ^^l^^^^io.r^rcS^,:;'""' ^" had no nght to it; property was^ntailed ^ n t rt ! tf! seigniory was estimated over $15 000 Hp J. ? , *''"* they were estimated. Does zot 1 L w L "-T ''"" '^^ ^'^^ over S 15,000. Has usufruct of se ! iry tL { ^^'''^ ^^^*^ properties of seigniory in question. ^Lj^J '■ ""''' '"^ Does not know what sei-nnorv ^^ivelhV / ^'"* ''•' '"'"^'^«- upon, „l,icl, 1,0 now produces, maAe/l °'""""' "»"=■ xr T,, CASE.— A. Messrs. Edward Stuart Leslie and Patrick Le.liP Ti„ni- . . Sional Assignment executed by Deed of d Feb a I at 'S I^' 7'" ''' ^^°^^- league, Xotaries, with the condition, .1,0 '''"'".'"^y' ^^''0, before Griffin and liis col- Creditors and Without «:; 3 n l7:rrZ::Zl' "'"'°"'/--- -<- to theL in the Deed. concurrence on the part of their Creditors named 'fiiiada; aiul that he pplii'd for th(3 bonelit '''"ill creditors, whj ' procHMls of snlo to iwuro lit tiiiH! of said Lower Canada to go vod "vitli a smiimons t siiid debtor l»y any tlio question liaving a, is8U(!d n.caiii.st the Ih!1ii, Detbndants, to «t tJicii ; !;iit HMbse- iitt l^now at time he rir.ept witlioiii, sum- do said purchase it !s that some 2»i'opo- SGl, on part of the to witness his three condition that wit- n his son as afore- rt-oidd jrivo up said e up ah rights to da, without admit- made no valuation ■onsidered creditors s not aware that not know at what they were worth e lads et vcnfc's on iO per six months. cntcs. Tiie wheat ty, and the corvee>t \rontreal, and has suited about pro- 3n opinion there- lare made tlie Provi- e Griffin and Lis col- revious notice to their heir Creditors named 88 The imrtieaselootod by tho Debtors a3 asaigneea oa this provisional asgignment are roZTn:';''""r.^o/r'"°''''°^^° ''""''"''»«• "'» --"^ there r mlhL r M n • r"** "'" "''''^' ^"'^"'^'^ " • '^'' '^o^""' ««">'"^. »•'« father, was a member of the firm heretofore csisfng between them and the bankrupts nnder tbo name of Leslie, Htnrnos and Company. ""nipis, under tlio The Creditors have reason to believe, or at least to suspect, that there .nay exist clajmsof ho bankrupt estate against these ex-members of the 'old rrlointed « assignees by the bankrupts. ,u addition to this, the Creditors have bee™ i oTed th 0!:^,"' ''"'''"'=" '''"'"''^'" insolvency disposed, m favour of their frther lomo of their property of great value. •<-" nnncr, ot Jh^c^Queations submitted to Counsel upon this provisional assignment are the fol- thJ tulo ? "' '"■"''''""'*' assignment valid in law, and are the Creditors bound to notice barkJ^pTIletor"? "' """°'""' "" ^'° ^"''"'" '^""""'^ ''^ "'^ '" ^<^^^ ^""n their 3rd. What are the n-mcdies the law allows to the Creditors under the circumstancM 01.sc.osed by the above-mentioned provisional assignment and those courrd t3 4th. If any such sale as this one reported to the Creditors was made by the Debtor, when^d^iared .nsoivent, what is its legal effect and the consequences i„ i^ll o^ the Upon the First Question : After careful examination of the deed of assignment submitted, I have no hesitation m declaring tan absolute nullity, it can have no leg,al effect whatever agat he Creditors, who cannot bo bound to take any notice thereof. ^ The proper course for the Creditors in this instance is to obtain from the Debtors an assignment to which these provisional assignees would be a party) i" Irder to obcain a delivery of all property of the estate. The Creditors may give the Deb os ad; charge if t ey think ft, on condition that the whole of their as'se'ts have been de ivered' t!t ?h r r "° '=°"««'"™-' °f ''"y PoHioa or no fraud committed to th detrl- ment of the Creditors. In a word, the Creditors having a right to obtain an uncond tional assignment, they can insist on any condition they please ; as it conUbs condhion^ contrary to the llrst principles in the law of Creditor Z Debtor an as ."^ 3 n^^^^ by law bo discretionary on the part of the Debtor, but it is optional with the Creditors to d mand it. It is ny them and for their benefit only that an assignmel can be demanded and consequently it is on them that the selection of assignee^ devolves Th Debtor annot d.ctat. or exact by such an ex parte assignment the condition 'his dsfha'g f om his creditors nor can he give to assignees of his own choice the right S claims a doubtful nature, such as the contingent claims mentioned in the a s gnmen^ which relate only to the marriage settlement of Mr. Patrick Leslie ^^«'g"'"«°t' On the Second Question : The Creditors are entitled to have from their bankrupt Debtors a full and uncondi- tional assignment to which their provisional assignees would be a party in ord r to possesZ ne oi; ""' °'"'^^^"' ^^"^^^^ °^ '''' ^'^'^ they'may'have L the^r possession. The Creditors may give the Debtors a discharge, if thev think fit nn Pnn di ion that the whole of their assets have been delivered, thft 'there ha been 'concea -" wL , "r T^' ?' "° ^''""^ '=°"'"'"^^' '' '^' '^^^"■"^nt of the Creditors In a r; z sr ttriScrs;:^'' " ""- -^ -'-''''-'' ^^^^^^..^z/:: On the Third Question : meltVom 1'7 "r "fT: ""' ''«'^' *° °^'"'" * ^"""Pl^t^ «°d unconditional assign- ment from h.8 bankrupt debtor, in case of refusal to accede to this demand; any cl >l 84 creditor to procoed to attach his body ' ""'' '''""*^ "'»<' """'»'"'' 'be their c.edi.or, and po.i:tz:n:«sZz:tr''" ■::""" '^•""' ^^ ditions, the oreditors would bo onM.in.i , «'^'f"nent, as it >d with its present con- persons of the debtors! « the Vhol^ ' u ''T ' "'"""'"^"' "«"'"^' '"" 8"">Is and What the law consi. eS a j s I .t: 1 ° ^"T' '"" •''™ ^"'"^''-t '<> "-kc out about t., secrete ti,eire.,Je;ieS:;:"reI''" "''''"" """«'"-' "^ "^'•^'o- -o reason ,ojustif/thoe.erc?o;[iv"'/'°''\r """"""' "'"""" ""^ »'"« attachment and capias. '""''' °° '"" l'"" ^'' "'^'i^ ""J't"", such as Montreal, Glh March, 18G0. ______ Ti. Lafjmmmb. The undersigned, advocate, havinff read the nl.nv„ r nasignment, passed before Oriflin N P rife ! 1^ "^'""B ^''^o ami the deed of tho conditional a..,ig„„,c„t refe red to i,' r ^^ ' """ "'''"h"'''^^'. '^ of opinion that curs in the above orSnilirof ^ llnlJ:"''^"''^'^'' """ -" -'"- and generally eon- Montreal, March 0, I860. — "OBBiiT JIaokay, Mvacale. .•>gai„»l Defendant,, ..araL* „ „\V t^;::"'^ ""-''-' nises that two ,iu,lg,„e„t, projifc',, af « "n '"''"■,-"«"8- .Z,.;., as having been executfd r^; c iTe ; ' 17^;?:,: '"' '""'^ tioned, and which are now produced, Ld fy d b! D:r\"r under numbers 1,2,3; probably would no hZ\ /■ ^'^"''^^^°*«' attachment before judgmLt, had^T:.!::! -Th? • ^ /T'^^^ ^^ already against Defendants. Judgments then William Millek Ramsav.-Is acting manager of Colonial Lif. Insurance Company ; the value of a man's lifo t 7', vn r ^269 lSs.10d.per £1000 of property tha if r -^T '^ "»*'' ^' property to £269 18s. IQd. ^ ^' ' diminishes value of Cross-examined—The calculation is madp nf fi «„. the experience of a great number of LI m'!ZTr """ n " Insurance Ccnpanie. t o^naketheirp^. kI ^t tlrr,";^ • These were judgments for about $9000 and co^is~R^, ' ~ leM, wouIJ give to tb« would hIio ennbla the ml assignment, if tho [lio person selected by a witli its present con- "gdiaat tlie goods ana auflicicnt to malio out f that tlio debtors arc fatlier since their de- t without any other leir creditors, such as n. Laflahus. 3a3o and tho deed of ed, is of opinion that i, and generally con- OKAY, Mvacate. t>icious, it being ave said opinion 3 of attachment them. — Rocog- i LoKN MaoDocoai.l— Is doing business at Montreal, as broker, knows Plaintill" is acting manager of Bank of Ikitish North America. Quenimn — Can you form an estimate of tho damage in money, if it can bo so estimated, to a man in thePlaintifPs situation, by a pub- lic accusation for perjury ? [Question objected to and maintained : otherwise, witness would assess damages, not the jury.] PhiintifPs position as acting manager, is one of most confidential nature. An accusation brought against a person for perjury, would prevent witness from employing him. At time of accusation of perjury made against Plaintiff, was spoken of and known among merchants and others. If a person is accused of perjury it is very outrageous to a man's feelings. Cross-e.minl/i/j(l.~The fact of indictment for perjury liavinfr been brought against Plaintiff has not injured him in my opinion, because I knew him well.— Would not have hesitated in i^mpl^ying Plaintiff after indictment because he knew him so well that it was not pos- sible for it to bo true. Cannot name any body in whose opinion Plaintiff was damaged by said indictment. Edwaui) Thomson Taylor.— Counsel for Defendants agree to con- sider the evidence to be given by Mr. Taylor, same as that given by Mr. MacDougall. Thomas Kirby. — Same entry as last preceding by consent of Counsel for Defendants. JohnH.Buscii.— IsafarmerinUpperCanada.nearKingston.knows Howe and Wolfe Islands, in County of Frontenac, lives on last named. —About 2 or 3 miles from Howe Island to Wolfe Island. This latter is opposite to Kingston ; knows something about value of property in those islands. lias lived on Howe Island for 40 years. A year at^o last April, made estimation of value of property of Edward S. Leslie on said islands. Witness holds in hands, and now produces and fyles a statement under letters V Y Y which contains a correct description and mention of lots mentioned in the twenty-first interrogatory sur fails et articles submitted to Edward Stuart Leslie by Plaintiff, and the lots in Schedule marked X are also the same as those mentioned in said interrogatoiy ; made a complete valuation of each of the said lots and the valuation so made by me is mentioned in said Y Y "*' !HI! rii iiliuni 86 The value of whole of said property is $39,633.— Thinks said property would sell for that amount ; valued it according to leases of said property as much as possible. Cross-cxamhwd.—CalcuMed said property at that amount payable in ten years with interest. People on lots on Howe Island are pretty poor. Some on Wolfe Island are pretty well off. Others are poor. Does not know whether these prices would certainly be paid in ten years : would not count much on prices being paid, but values said property at these prices ; valued property lower on account of long leases. He valued the 99 years leases lower. He valued two lots at five dollars per acre. There is but one shilling rent per acre on these two lots. He valued first lot on said statement Y Y Y at $400. The reason he valued it at that sum is that the occupant of said lot would prefer paying $400 for it, to paying the rent $16 per year. Calculating this rent at 6 per cent, would give about $240. Leased for 88 years. Lot number 20, leased 68 years, valued at $666. In valuing this at that sum, he took into consideration that the rent would be raised to .50 per acre in fifty years. In estimating lot No. 4 at sum mentioned in statement, he so esti- mated it because occupant would be willing to pay said sum in pref erence to paying rent. Fifth lot represents 3 J per cent, and leased for 6 or 7 years. Estimated at sum mentioned in statement because the lease thereof was short and other neighbouring lands were letting at same rate. Valued other lots at short leases on same principle. When witness valued land, valued at what it could be sold for, irrespective of Mr. Leslie's interest therein. Did not value lots according to ren- tal. The land in Wolfe Island sells ordinarily at $10 per acre Wit- ness paid for one lot $4 per acre and for another $10 on Wolfe Island. He bought the former from Crown, the latter from Mr. Johnson;s estate. The lot he bought for $4 is a first-class land. Bought It 14 years ago. Said statement YYY is in hand-writing of young man employed by witness. Witness made said statement. Re-cxammed.— When witness made estimation of property leased m question, he took into consideration that he became absolute proprietor of such land if he bought it. % J«%c.-Could not say what property would bring in cash at sale by auction. It ought to fetch more than half, should bring two thirds of his estimation. It might bring at SherifTs sale one half the estimation made. Those sales go very hard. Does not take into consideration in his estimation lands (now seized and sold by Sheriffathalfat Sheriff's sale. He did not include the interest of the Leslies. w 3 o w Q O « O Ph K-l m Ed O §3 03 I ]3.— Thinks said cording to leases nount payable in [sland are pretty Others are poor. ly be paid in ten , but values said account of long ilued two lots at ent per acre on Y Y Y at $400. ipant of said lot t $16 per year, t $240. Leased ed at $G66. In )n that the rent ment, he so esti- laid sum in pref_ it. and leased for lent because the 1 were letting at principle. When for, irrespective ccording to ren- per acre. Wit- $10 on Wolfe latter from Mr. first-class land, hand-writing of i statement, property leased icarae absolute ring in cash at ould bring two 3 sale one half Does not take 3d and sold by the interest of j5 •-< >o o ^ i^-'^ 2 M W --* .ti « M « !3 E-l o5 < 1 • << w,« C3 .2 • TS 'O ^ ^ ^ .2 « ^ 6 • f5 ""* ja .-: o rrt ^ -^ 2 I ^ ^ I'S > >-.S -S « .2 > 3 ' l\ I M ! Ah O M W •-1 m 03^ H-Sa Otw gi^ S 'T! S rn ^ -^ ^ '^aoPMte'r)a_. O C3 « . t^ g o ^ « a 2^ <1 sp-^ „ S 13 « a .S S "' g ." 'D 3 3 e3 ^^ .2 t>, S O ^ rrt 2 .> > n3 as -5.2 P S o a «3 H o Oh S § S O £J CM ^ _ .<*< ^ 'S W3 o so o -^ ca ^ ^-5 S "^ J •S SJ a o .2 . o . (N 2 S-^ .2 §0-2*^ .■r.aocQS'ggi 9. ° o ..■ — Oj aj ^^ QJ ►*< J3 '^ o a> u a :^.§U '^^ ^C US 55 _ija Ckd (Mrf « ftj ri _i * •5 !? 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I to ued lav- |Bn- lay ime ion les- tell n a • ^es- ald for Vit' int' ie's ble ab- be of |on iat- ne* hts is- to •nd $0, .oh 03 o ^ rH CO -o- to C3fe fd MM m «i o f5 ?! < 1 11 1 SS 1-^ •>■* t- 00 o> 2 eqoSMMMM m M m .2 tr|<1WW 00 I I ■ — —■—'—'— '—-^lOCO t- CO ff) O ^ N CO C^l M C^ CO CO CO CO o o o o o o o O O O f-t o o ^ O O O Tj* O O -H Ti< o (M O 00 i:* 00 OO GO m moo-^o rH M M M C^ iH I-* O COCOOOOOO o wmoo^-oooooo ^ 00000000500000000000000000000000 O'*f'*• a. 00 c^ I-* ^ w^ CO F^ m tn 00 2 S 00 O OT 00 o o : ^ d o o .T3 . d • CS : ^ "*; 2 S n3 ''1 S o "5 s d o ja d 03 2 •« o 0< o >-9 d a) a d d o pa d OS a a d g d o >-5 S 2 2 o 5.d ^ °» § > ja oi f3[>i> ,- ja iJ CQ «£fefe 73 OiJ 'Sad dja So is 1-9 -"I 1-8 ■a I OS J.as S>oS OS . a a a o o PHEh O i-tr-t«OOOC1000> IN i-H IM C<1 PJ M I-l o ^ in o o o o M t- O O MO J^ M N iH GO '-io. O lO to • m ;-i w 03 , ^ 1-5 .a , -M m l> fs -• -fl^ lO 0} 00 0) 0) X O 00 00 o o o ^ ^)^. a o O o "3 o S2 ° 'Sad 53p4 «3 S»oJ OS :i CQ to S 08 OS .a a BOO t-lO!OO>'i<^000000 o 2a" ------- ^ a V P r •R fi ir m V in lo in er es y« is ti( wj th ness p Island Johns Bougl young Re-, in qu propri By, sale b^ thirds the es into c Sheriff theLc lie br 68 L€ Vt cla to jec so fat an; ter Th of: sto haA Ho and iuft. 87 Absalom Briggs.— Knows property in Howe and Wolfe Islands a description of which has been read to preceding witness. Made valuation of said property. The statement made of such property produced and fyled by witness under letters zzz was made by him He thinks about 2nd April, 1860, made valuation accordincr to value oflots at that time. Valued them as he found them. Con°sideration were charges in said lots which undervalued them. Endeavoured to find original leases, and when found party had no chance of purchas- ing lots, he did not consider leases so valuable to occupants. Did not take into consideration leases of said lots when valued them Valued them as free of all charges. Valued property according to' improvements. Where improvements good and permanent, valued lots more. On said statement there are eight lots under leases hav- mg more than 14 years to run. The average value of land in gen- eral in said islands of description oflots in question he can't say exactly, but he has not seen lots change hands there since some years for less than $14 per acre. The total value of lots in question IS estimated at $41,187 in said statement. Thinks property in ques- tion would realize that said amount if sold at present. Can't tell what discount there would be on cash sale, but believes that on a three years' about that said amount of $41,187 could be obtained. Cross-exammcd—Yalucd lands without consideration of Messrs Les- lie s claim. Thinks first lot mentioned in said statement would bring amount therein mentioned if sold at present. It is leased for 68 years at $16 per year. Witness says that said property for Mr- Leslie would be worth only something over the capital of the rent' VUued all the lots in question, not according to Mr. Leslie's claims, but according to real value free of charges. It is impossible to tell value of rights of Mr. Leslie at present in said property sub- ject to eases. The rights of Mr. Leslie in said property would be so much less in value, as he could enjoy them only after death of father. In his estimation of lands did not take into consideration any term of credit. Knows Mr. Kirkpatrick, Queen's Counsel. Lat- ter ha, been agent of Messrs. Leslie for said property for long time- Thinks saidMr. Kirkpatrick is as competent a judge of value of rights ot Mr. Leslie in said property as any person can be in his opinion. Andrew Drummond.-Is Manager of Bank of Montreal at King- ston. Asked by creditors of Defendants about 14th March, 1860, to have estimation made of value of Defendant's propertv in Wolfe and Howe Islands. Obtained said information on the 15th March, 1860, and sent it to creditors same day. Has copy of letter conveving such mlormation from letter-book. Addressed it to Mr. Redpath 88 Cross-examined. — Defeii-.lants declare they have no questions to put to witness. Patrick Lkslie.—Is one of the Defendants. Witness and other Defendant kept books of firm, " Leslie & Co." Began new firm in 1858, in the month of April. Did not strike balance sheet of old firm. New firm may have purchased at one month's credit. Does not know. Having looked at first page of Bill-Book, he says com- menced by 99G. Can't say why bill-book number 996. Bill-book not in his hand-writing. 996 v/as bill granted for business of new firm. Does not see bill number one. The date of said entry is dated April, 1858. Said bill 996 and bill 997 are entered in journal on 1st May, 185S. Bills were granted for purchases made by the new firm. Said journal contains all transactions of new firm. Thu purchases for which bills were granted are entered in journal. Bills 996 and 997 were granted for purchase of sugar, as appears by entry in journal. Three entries , n page five of said journal for bills payable altogether for $4,350.88, are not entered in Bill-Book. Supposes there is no other entry connected with the payment of these bills, but that mentioned in the said journal. It does not appear in said journal for what object these three bills were granted. Entry of $10,246, page 34 of ledger, is entered in said journal, as being paid on account of bills payable. These bills were those of Leslie, Starnes & Co., and were not charged to them. They are not en- tered in said journal to Leslie, Starnes & Co., but are entered as our own bills. About $36,000 in all were paid by our firm and charged to our Bills payable account, which were the bills of Leslie, Starnes & Co., and she aid have been charged to them, (Leslie, Starnes & Co.) At time of insolvency of Defendants there was no indication in their books to shew that these bills were paid on account of Leslie, Starnes & Co. To the best of witness' belief, the firm of Leslie, Starnes & Co., was perfectly solvent. There was no balance sheet struck when Mr. Starnes retired from firm. Cross-examined.— Vflxan Defendants failed it was found impossible to balance their books until they were written up. Bills of Leslie, Starnes & Co., paid by Defendants were credited to cash, and charged to Bills payable in the Lodger. The account of Bills payable in our ledger, showed the discrepancy at once. The moment it would have been proceeded to balance the books, this error would have been discovered. By the ledger itself at the time of Defendants' insolvency, it appeared they had charged $36,000 or $38,000, of W, 89 questions to put Bills payable to that account which should not have been so. First became aware of this mistake after insolvency. The first knowledo-e they had of it, was derived from Mr. Johnson's report. Mr. Johnson found out mistake from Defendants' books. Thinks he could have had no difficulty in discovering this error. No attempt of any kind was made to conceal this fact. Mr. Bethune, accountant, was employed by provisional assignees to write up their books and ba- lance them. Defendants gave I\Ir. ]}(!thune every possible informa- tion to enable him to trace out these bills and to make proper entries regarding them. I\Ir. Starnes, also, had paid a considerable amount of debts due by Leslie, Starnes iV; Co. The shares of Defendants in old firm was | and that of Mi\ StariKjs i|. There were no other part- ners than Defendants and Mr. Starnes. Defendants were liable for f of those $30,000, and were also liable to Mr. Starnes, for f of what he paid. Believes that I\Ir. Starnes, did not owe Defendants one shilling at time of insolvency. Sir. Starnes is still liable for debts of old firm. Mr. Starnes is cashier of Ontario Bank. Said Bank was creditor of Defendants for a considerable sum. Charles Edwaud Schillku.— Is deputy clerk of Crown. In March term of Criminal Court of 1860, at Montreal, Honorable Justice Mondelet presided. Is certain that no other Judge presided, and no other Criminal Court sat in March, ISOO, at Montreal. Does not know Plaintifl' personally. Cross-cxammcd.— There is a record of Court of Queen's Bench, wherein all proceedings on indictments are registered. Rc-cxamincd btj Flaiiitii): — Tlie register is made v.n f 'om entries on back of bill of indictment. Rc-cross-cxcmlncd. — The return of the bill of indictment is regis- gistered the moment made to Court. Ite-cxamiiicd b>j Plat nt if. —Enti'ts return ol' bill of indictment in register from entry on back of indictment. Edwaud Stuaut Leslie.— Executed deed of sale to father, Hon. James Leslie, in February, 1800, of lands in Howe and Wolfe Islands. Signed at time of sale memorial for registration. Can't recollect whether paper marked Y fyled in this cause, is a copy of said memorial. Does not know sigiuiture of James Durand. Cross-examined.— So\ii only interest in said lands to father. Does not remember ever seeing lands in (piestion. Ascertained value of said lands from agent, Mr. Thomas Kirkpatrick, Q. C, at Kingston. It was on repo.ioi Mr. Kirkpatrick, that price of said sale was fixed. Made sale in good faith, believing he was receiving full value for his rights therein. 40 John Redpath.-Is merchant of City of Montreal, and creditor of Defendants; at time of insolvency of Defendants in early part of March 1860 wrote to friend Drummond. at Kingston, to ascertah value of land, belongmg to Edward S.Leslie, on Howe and Wolfe Islands. Mr. Drummond wrote him that he Mr. Drummond, had ascertamed value of land from Mr. Allan, at Kingston, who v ilued land at about 811,000, which witness communicated to creditors witness wrote back to Mr. Drummond, to ascertain more particulaH; value of said land, whereupon he sent witness two statements, one valuing the land at about SIO.OOO, and the other at $12,000 Cross.e.r s ruction endeavoured to investigate the whole nature of their business; but we hnd upon posting up all Messrs. Leslie & Co's .own work, that it does not agree with their statements. Without reference, therefore, to their balance sheet, and as we cannot p'o- and creditor of n early part of )n, to ascertain >we and Wolfe rummond, had •n, who valued I to creditors ; •re particularly fitements, one it $12,000. i in this cause, 1 minute book ' expenses that ! of insolvency ement for the hand at time < invoice price ,s these goods ed said goods laking in all on which has itors, because Leslie & Co. lave been in ig them up, and labour, ! also by in- re of their ilie & Go's. . Without cannot pro- 41 ceed any further, M?"8rs. Leslie & Co. being unwilling that we should make any nevv entries in their books, we conclude to report without any adjustment at present, and wait the farther instructions of the committee and Messrs. Leslie & Co. REPORT. So far as we can see, there does not appear to have been any loss in their business as wholesale grocers and commission merchants ; on the contrary the sales indicate a profit independent of commissions, which are considerable. The only losses we notice are as follows ; — On one lot of tea, say about $640. On pork they purchased on joint account, say about $14,000 worth, about one third of which was sold at a profit ; the remainder, say some $9000 in value, would appear to be all they can lose upon. Say that the remaining pork lost one third, or $3000, Messrs. Leslie & Co.'s probable proportion of that loss would be about $1,500. The only other lots alluded to is by grain, in connection with a produce house in this city ; we do not know anything definite of this, as their books do not shew any grain account ; the extent of these operations, as we understand, was some 60,000 bushels of barley on which a loss was sustained. If this loss amounted to a third of the whole transaction, Messrs. Leslie & Co's. share of this loss, would probably amount to $10,000. To cover above and current expenses, they should, as far we can see, have made more during the time they have been in business under their present firm. Viewing the matter in this light, we have been searching for the deficiency in the estate in their books, and find that a considerable sum, say horn $3S,000 to $47,000 (until explained) would seem to have been paid by Messers. Leslie & Co., to retire the paper of Messrs. Leslie, Starnes & Co. ; should a balance sheet and a knowledge of their position at the time of their dissolution be had, it would then be possible for us to say what amount (if any) would be available as an asset of the present firm. This, we think, together wit>^ the cash account, the personal account of the partners, the bills receiv- able account, and the auctioneer's or agent's accounts, will show tho remaining deficiency of $51,000, as appears in their statements. We cnnnot approximate the deficiency in these accounts without dissecting, entering, writing up and adjusting a great number of transactions which now seem to be irregularly made, and which we should be permitted to correct in the books. To do this we should 42 be furnisljcd with the auxiliaiy books and papers wliich we have not yet seen ; we mean particiihirly the bank books, cheque books, paid notes and chtviiics, also accounts of sah)s by auctioneers or agents, anil generally such papers as may be needed. Since the cursory statement made up by us from Messrs. liOslie & Co.'s own statement, siiowing about 6s in the £, things have altered thus : Say fou tiik hkpteu, wic tiiixk, as kollows : E. S. Leslie's interest in the Seigniories Bourchemiu and De Ramsay being considered liable to the estate, the probable value of which is, at C> per centum, worth $23,890.60 E. S. Leslie's property known as Wolfe Island, 20,000.00 E. S. Leslie's share of his mother's other property at his father's death, the whole of which is not now ascer- tainable, Tatrick Leslie's private estate, not extended in last statement on account of an asset for dower. We have since procured a copy of the marriage contract and do not think there can be any claim on the estate as it does not convey a mortage, and further it is only conditional on IMrs. Leslie's surviving her husband. This is set down in the settlement as worth gg 400.00 Tatrick Leslie's share of his brother's property at his father's death is also liable in an opinion, the value of which is now uncertain, as in his brother's case, The discrepancy, amounting to $97,000, as alluded to in our cur- sory statement and in the first part of this report, requires to be looked into and a number of important accounts and transactions examined ere we can state what assets may be found in that discre- pancy. There may be also something in the hands of the auction- eers or agents which can be only ascertained when accounts of sales are put into our hands. And on the other hand things have altered for the u-orsc, thus : By the sinking of firms since fiiiled— Messrs. Mills, Mattice & Co $21,134.00 T. M. Eraser ll.'oOO.OO Noad Brothers 14,000.00 We have waited on Messrs. Leslie & Co. for information on their business generally and for subsidiary books and papers, and had the promise of both, but up to the time of making up this report we suppose they have not found it convenient to get them togethev for I wo liave not icqiin Jjooks, iictioiioers or ^srs. liOslie & I have altored e . $23,890.00 . 20,000.00 t §8,400.00 m our cur- quires to be transactions that discre- he uuction- mts of sales us : $21,134.00 11,900.00 14,000.00 n on their md had the i report we ogethe:- for 48 us. W(> nieiifiou HiIh as part of the reasons, in ooniunctioii with the unadjusted state of th(! hooks, wiiy we are not enahh-d to furiiisliyou with a niori^ dcfuiitc! numerical Ktateuicnt of affairs. AVe should only stultify ourselves and perhaps mislead you if we were to do more with our present information. All which lio\v mation of the valuation so made. Busch's valuation is on a ten years' credit, with some regard (he says) to the leases. As a test of bis value, the first lot is under a 68 years' lease, paying HI 6 rental and l,e values it at $400, or at a capital representing 4 per cent but though in this manner he raises the value of the land itself to $39 000 he with difficulty brings himself to think that the rights of the J eslie family might fetch half that sum for cash. l...king from this i according to Mr. Ramsay's estimate, for Mr. Leslie's life interest £ result would be a trifle over £3000. Making the calculation %i the D Ii 50 Bank rate of 7 per cent , it would be under £3000. Briggg docs not venture an estimate of the Leslie's rights ; he values only the lands and improvements as they are, and the difference between the value of the two things may be shewn by the first lot in his estimate, which he puis at $2000, the annual rental for 68 years to come being §16, or ^ per cent on the capital he names. While in fact such a rental would not be estimated at more than $^^.50, from which the value of the Hon. Mr. Leslie's life interest would have to be deducted.* Pro- bably no further demonstration is required of the absurdity of such a mode of estimation. As the larger proportion of the lands are let on short leases, the rental may be supposed to approach nearly to the interest on the actual value of the property ; and by this test also Mr. Kirkpatrick's estimate is confirmed. The gross rental is between £330 and £370, per annum, distributed among a large number of tenants proved to be poor; which ol course would depreciate the value of the investment. The average net rental is only about £313. So that in fact, this ground also can avail the Plaintiff nothing, for every syllable of evidence on the subject, proves the perfect good faith of the parties, and an adequate consideration for the sale. Besides which, this was not the act of " Leslie & Co.," as stated in the Plain- tifi's affidavit ; but of one only of the partners in the firm. As an after thought probably, finding all other grounds fail him, the Plaintift' had endeavored to show fraud in the Defendants by proving the payment of about $36,000 of the Bills Payable of Leslie, Starnes & Co., and their entry to the debit of " Bills Payable " in Leslie & Go's, books. That this was a very great blunder is plain enough — that it was not fraudulent is equally plain — for that amount stands in their books to the debit of Bills Payable with no entry to balance it — and therefore a single glance at that account in the Ledger would shew the discrepancy, and lead to the instant and unavoidable discovery of its cause. The Defendants admit with regret that their books were extremely incomplete and irregularly kept — but a thorough investigation which has been reported to the creditors, has established the absence of any wilful error. In the instance under consideration the entries carried with them a plain indication of their erroneous character, and if the error had remained undiscovered, it would not have benefited them. Thus then, whether the circumstances upon which the Plaintiff relies to establish tho correctness of his affidavit be examined sep- arately or together, they do not constitute any evidence of fraud, and • The result, would bo a deduction of about 921 per cent, from this item, reducing the value from $2000 lo $170. ?s docs not y the lands n the value late, which being #16, ich a rental he value of ted.* Pro- y of such a s are let on larly to the is test also is between number of reciate the bout £313. nothing, for ; good faith !. Besides 1 the Plain- s fail him, sndants by e of Leslie, lyable" in !er is plain aat amount 10 entry to unt in the nstant and idmit with irregularly rted to the )r. In the em a plain d remained le Plaintiff mined sep- ' fraud, and , reducing the 51 certainly do not present a scintUla of evidence to justify the assertion that they had fraudulently secreted their efiects. Evoiy stop thev took was instantly communicated to their creditors— every expl a nation asked for was given them, and every concession they demanded was acceded to, except that which required them to give up their estate without a discharge : and even that they were willing to leave open, and dependent upon the correctness of their conduct That they could not enforce the stipulation for a discharge is at once admitted ; that to demand and insist upon it was a fraud and a secre- ting of their estate with intent to defraud their creditors is emnhati- cally denied. '■ The question of probable cause when the facts are undisputed, is one for the Judge.-l Term 544; 1 Wils. 232. When the Judge is of opinion either on the Plaintiff's showing, or on the uncontra- dieted evidence for the Defendant, that there is a probable cause, it IS usual to nonsuit the Plaintiff.— 6 B. and C. 225 ; 1 Taylor n 37 This doctrine, however, the Plaintiff's own Counsel has stated,' and therefore it is unnecessary to dwell upon it. If want of probable cause had been shewn, malice might have been presumed; but it has not, nor has any attempt been made to shew malice ; therefore the Plaintiff has failed in both of these essential portions of his proof and he has no case to go to the Jury. ' In judging of the conduct and motives of the Defendants in pre- senting the indictment, there are other circumstances which must not be forgotten. At the very time that the three Banks combined to issue three smsir. arrets against the Defendants, the latter had the consciousness of having divested themse'- js of every shilling they possessed ; upon such a condition only as is seldom or never refused to the unfortunate debtor. The same Banks tliat had simultaneously caused their Cashiers to charge the Defendants on oath with conduct as disgraceful as perjury, held judgments against them to the amount of about $10,000, upon which attachments equally strinroperly inferred. In support of the Plaintiffs pretensions one of his Counsel has referred with evident satisfaction to the dictum then most oppor- tunely communicated to th(! counsel, of a long deceased, very learned and esteemed chief justice of this district to the effect that our law was Bufficient for such cases *' but that the law of England might be used as a guide but not as an inexorable judge." It will be gratifying to the Plaintiff's Counsel to be assured that although the observations in themselves ' i j >i(»i ewhat trite and far from novel, the principles involved in t)\ ixn hav.; ) 'en adopted and observed by this Court, and that their obiiOi,- propi. -ty will find their application in the deci- sion of the poiIi^^ (vhrni '.ad. Upon the fi; . point urged by the Defendants, the wan' of proof of the termination of the proceedings upon the Bill of indictment, it may be observed that the original bill preferred to the Grand Jury is regularly endorsed as not found ; " No Bill ;" and has been produced by the Clerk of the Crown, its proper legal custodier, who states that it was so preferred to the Grand Jury, sitting in March terra, 1860, of the Court of Queen's Bench, himself having been one of the witnesses thereon, that the Defendants were the prosecutors, that it was returned by the Jury to that Court and there registered ; and the copy fyled by the Plaintiff as his exhibit was then proved to be an examined copy of the original. It is true that the authorities from the books require the proof of criminal proceedings by the pro- duction of the record, the Court of Queen's Bench on the criminal side being a court of record, and of course if the bill had been found and proceedings had thereon, the reco/c .;;ust have been produced to establish their termination. Here, however, the bill was not found, no proceedings wi re had or could have been had upon the unfound Bill, and the only proceeding that could be adopted was its official reception being registered and recorded as ' No Bill.' However strict the mode of English proceeding may be in similar cases, I am not prepared, here, with our greater laxity of procedure, to hold that the production of this unfound Bill is not proof of the termination of proceedings upon it, which indeed could never have been had upon it criminally ; and I hesitate the less in over-ruling this first objection because the adjudication of this case turns mainly if not altogether upon the second ground of objection taken by the Defendants, the 60 alleged failure of evidence to prove the want of probable cause and malice on the part of the Defendants. Upon this ground it must be observed that in actions of this sort for malicious prosecution the most esteemed authorities of law, the best writers as well as reporters concur in opinion, that the foundation of an action of this nature is the malice of the Defendants either express or implied ; which at the same time must be accompanied with the want of probable cause :— from the latter malice may be inferred, but the most express malice will not imply the want of probable cause. It will be manifest therefore that want of probable cause must con- cur with the malice charged, to support this case, inasmuch as this kmd of action is for a prosecution which, upon the stating of it, is manifestly legal ; and therefore the ground of the action is thata legal prosecution was carried on without a propable cause; and hence this ground is essential, because every other allegation may be implied from this, but this must be substantively and expressly proved and cannot be implied : malice may be implied from the want of pro- bable cause but will not in itself imply want of probable cause. The leading case of Johnstone vs. Sutton, decided in the House of Lords, whose opinion was expressed by those most eminent Judges, Lords Mansfield and Loughborough, has settled the principles which I have stated and they have served as a rule and guide for all sound decisions and legal opinions from that time to the present. Those very eminent Judges declare " this action ought not to be main- tained without rank and express malice and iniquity ; the grounds of it are, upon the Plaintiff's side, innocence ; upon the Defendant's malice." Stephen's 7iisi jmus sustains these principles, and the present Lord Wensleydale, the eminent Baron Parke, in Mitchell vs. Jenkins 6 B. and C. 594, affords his illustration of the law of evidence applicable to the question of malice in these terms : " I have al- ways understood, since the case of Johnstone vs. Sutton, which was decided long before I wan in the profession, that no point of law was more clearly settled than that on every action for malicious prosecu- tion or arrest, the Plaintiff must prove what is averred in the declara- tion—namely that the prosecution or arrest was malicious, and with- out reasonable or probable cause. No malice, however distinctly proved, will make the Defendant liable ; but when there is no rea- sonable or probable cause it is for the Jury to infer malice from the facts proved. The term malice in this form of action is not to oe considered in the sense of spite or hatred against an individual, but oi malm animm and as denoting that the party is actuated by impro- per motives." In such cases it is also held that tbe Plaintiff III I 61 e cause and this sort for w, the best undation of hdr express 3d with the iferred, but able cause. ! must con- uch as this ig of it, is that a legal and hence be implied )roved and ant of pro- ible cause, e House of nt Judges, pies which all sound it. Those be raain- le grounds •efendant's he present '^s. Jenkins [" evidence [ have al- vhich was f law was s prosecu- e declara- and with- distinctly is no rea- ! from the not to De idual, but by impro- I Plaiatiff must adduce enough evidence to satisfy a reasonable man that the accuser had no grounds for proc ieding against him but his intent to injure the accused," 6 Bing. R. 183, and cases cited. It is not enough that the bill of indictment being preferred was returned to the Grand Jury not a t'-ue bill. Books such as Selwyn, N. P. and BuUer, N. P., cited as authorities by the Plaintiff's Counsel, which are almost out of present use and but little referred to, cannot out-balanca text writers, reporters and judges of the present day. Stephen's Nisi Prius, p. 2277, says, where the Bill has not been found by the Grand Jury an action cannot be supported without evidence of express malice as well as of the want of pobable cause — 5 Taunt. 187, 1 Carr. & Payne, 138. I shall only add to them 1 Archbold N. P. 590, a modern standard work, where in the last edition it is ob- served : " In all those cases (malicious prosecution) it must be proved that the Defendant acted maliciously and without probable cause." To these add 1 Taylor on Evidence, p. 37 & 9 ; numerous cita- tions might be added to establish the necessity in actions of this kind for requiring the concurrent proof of malice and want of proba- ble cause, because as before observed if want of probable cause can- not be established by the Plaintiff on evidence, no action, on princi- ples not only of justice but of necessity can be allowed to lie against a Defendant. From all the authorities above adverted to, it might be repeated that the proof by the Plaintiff, of want of probable cause and of malice on the part of the Defendants, are both required. This necessity is plainly and expressly admitted by the Plaintiff him- self, insomuch as by his declaration of demand of damages he com- plains in substance in the terms of his declaration, that the Defen- dants preferred the bill of indictment against him to the Grand Jury on the 29th March, 1860, and thereby injured him ; that the Bill was false and scandalous against him ; that the Jury did not find the Bill ; that all this was done by the Defendants " maliciously intending to injure the Plaintiff" " and falsely and maliciously and without any reasonable or probable cause." These are substantive allega- tions and assertions, and under the dictum of the late learned Chief Justice prominently brought forward by the Plaintiff's Coun- sel, being alleged in the declaration as grounds of action, re- quired according to our common law in this respect, to be sub- stantively and positively proved. According to the learned Baron Parke, in Mitchell and Jenkins, the Plaintiff must prove what is averred in his declaration. My impression is that our law is more positive and strict in this matter than that of England, in which implications are admitted which find no place in our law system. The Plaintiff must 62 therefore prove against the Defendant, his allegations of their fal.e- hood and mahce and their want of probable cause. The question is hm he proved them or any of them. To ascertain this the cir^ cumstances of the case must be examined as they lie in evidence It 18 not my purpose to detail the evidence adduced, it will be sufficient to state briefly some of the leading points. It appears that the firm ot Les he Starnes & Co., in the spring of 1S5S, became the firm of Leshe & Co., by the retirement of Mr. Starnes at that time ; that Leslie & Co., the Defendants continued the present business until their stoppage m January, 1860, when they called their creditors together to submit to them the state of their affiiirs. Thereupon the creditors agreed upon the nomination of a committee with the consent of the Defendants, who promised to afford every facility ; and agreed to appoint an accountant to examine the Books which had not been regularly kept, and without any balance made up, either at the close ot the former partnership or during the time of the latter one. Five or SIX weeks -/ere spent in the examination of the books by the account- ants to whom the books had been delivered by the Defendants for the purpose of investigation required by the creditors ; but during all this time the usual course was adopted of adding to the difficulties and inabilities of failing persons by numerous actions at law, adding large legal expenses to an estate already unable to meet its legitimate in- debtedness. This was done by the processing creditors for the purpose of securing advantage to themselves to the exclusion of the other cre- ditors. To prevent such a result and put a stop to additional worse than useless expenses, the Defendants on the 23rd February, 1860 executed a provisional and temporary assignment to the Hon.' James Leslie, A. M. Delisle and Henry Starnes, Esquires, together with subsidiary deeds of sale of real estate for the perfection and completion of the purposes of the assignment. This provisional and temporary assignment was executed for the protection of the estate and at the same time for the benefit of the creditors. The evidence also shows that on the eleventh day of February, I860, Edward S. Leslie ono of the Defendants conveyed to the Hon. James Leslie, his* father, all his reversionary inte'est in certain lots of land situate in Wolfe and Howe Islands near Kingston, in U. C, of which the father had a life interest or usufruct. The price agreed upon was ^3000, settled after a valuation to that amount made by Mr. Kirk- patrick, Q. C. of Kingston, for several years agent of the Leslie's for these lands ; and the price was paid by the purchaser's notes of hand of .£1000 payable at 1, 2, 3 years with interest which were placed amongst the assets of the firm and are set out in the Schedule to the 68 their falge- uestion is, is the cir- dence,, It J sufficient it the firm he firm of me ; that ness until creditors Jupon the le consent id agreed not been the close 3. Five or account- ts for the ig all this Ities and ing large mate in- i purpose ther cre- al worse y, I860, 1. James [ler with ion and ana) and le estate svidence Iward S. sslie, his tuate in ich the )on was r. Kirk- lie's for sf hand placed to the assignment as the produce of the lands in question. This temporary assignment was immediately submitted to the creditors by the Defendants and examined by the former at their meet'ng on the tweniy-fifth of February, at which Plaintiff was presenc as repre- senting the Bank of B. N. A. At that meeting it was resolved to require from Defendants an assignment to Messrs, Workman, Mait- land, Ryan and the said Hon. James Leslie, for the benefit of the creditors. Several subsequent meetings of creditors were held, and at one of the 15th March, the three Banks, Montreal, B. N. A. and Molson's, were requested by the creditors to take out attachments against the Defendant's es* te. To this they assented on the; subsequent day, and in consequence tlie Plaintiti'for his Bank, and about a dozen move of th<3 creditors, signed an agreement to share the expenses among them. This was followed by attachments by thoso Banks, that of the Bank of B. N. A., having issued upon the Plaintiff's affidavit made by him on the 17th March, in which originated the criminal proceedings afterwards adopted by the Defendants against him on the 29ih M..rch, and as a final result this action. With respect to this action it must be stated distinctly as important in itself that it did not originate with the Plaintiff, as thy creditors minute book shews that at a creditor's meeting of the t>th April, at which the Plaintiffand the creditor's law adviser, Mr. Laflainme, were present, with about a dozen of creditors, these latter requested the Plaintiff to institute an action of uamagfs against Defendant, and upon his assent to their suggestion, they requested Mr. Laflamme to conduct the same and to associate Messrs. Johnson and Henry Stuart with him The action and the expense are necessarily the creditors'. The firm's transactions extended therefore from January to mid-MarchlSGO, durii'g vv^hich time the creditors were made fully aware of '^'^em all. The Plaintiff's counsel have selected particular grounds for reply to the Defendant's second objection, resting the one upon the assign- ment and its conditions, the other upon the sale of the lands to Hon. Mr. Leslie ; they have adverted to the circumstance that the assign- ment was made to the father of the Defendants, to the father in law of one of them and to their late partner, and have insinuated a sus- picion against it because made to relatives. There is no law which makes th nomination of relatives in itself, fraudulent,more especially where the transaction is merely temporary and provisional for the safe keeping of the estate and the advantage of the creditors generally, and not for the absolute personal advan- tage of the relatives. The solvency of these temporary assignees has not been questioned nor tiieir means doubted to account for any 64 receipt by them of the firm's assets. Moreover the Hon. Mr. Leslie IS known to the creditors as the father of their debtors, the Defen- dants, and is the purchaser of the lands of one of them ; and so far from bemg suspected, is selected by the Creditors themselves as one of their own proposed assignees. As to Mr. Delisle, alleged to have been named solely in the interest of his daughter, the plaintiff' has asserted that his nomination was suspicious because the assignment gave assignees power to compromise her pretended claims for dower Now such an assertion is unfounded. It is not in terms in the deed : although in this as in many other assignments, power is given to the assi-nees to settle contingent clainis: but this claim under the marriage contract, whatever it was, could not touch or rank upon the partnership assets, and was moreover contracted years before the stoppage. It is only necessary to add tho^ the power of the pro- visional assignees under the deed as to contingent claims upon the estate was very limited, and could only be exercised after an oppor- tunity had been afforded to the creditors of themselves appointing assignees. The power is not improper nor unusual in itself and it has neither bten alleged nor proved that it was either intended to be used for a fraudulent purpose, or so acted upon. The Plaintiff alleges that the condition of discharge in the tempo- rary assignment is illegal-Granted, no debtor can legally impose such a condi.ion upon his creditor, and tlie clause of discharge is not bmding HI law, but its insertion in the deed o." itself was not a secreting of the estate, nor proof of it. The judgments of the Su- perior Court and Court of Appeals referred to in argument do both ndeed declare such a clause illegal but they do not make it fraudu- ent. The distinction is a broad one between an unavailing stipu^ lation and a fi-audulent act: an assignment may be unavailing as against the policy of the law and maybe either annullable orV. facto null, and yet it may not be a fraud, much less a secreting bv the s.pulentofthedeed The temporary and provisional chapter of the assignment until the creditors themselves should receive the estate ; its provisional and beneficial purpose ; its being deemed to pre-- vent law expenses and the sacrifice of the estate by the Sheriff, who has been dec ared by th. Judgment of the Court of Appeals to be the only legal assignee for winding up insolvent estates ; the restric- tions upon the temporary assignees imposed by the express terms of this provisional assignment; all concur in removing every suspicion of fraud on the part of the Defendants and should have caused the Plaintiffas a cautious man to hesitate before taking his affidavit; even though the venerable Edict of Henry 4 of France in 1608, pro. 66 mulgated for a country and at a time when commercial transactions were totally dissimilar to those of modern commercial countries and times, might be used as matter of law merely to set aside the assign- ment.-But would not that same illogc'ity attach to the assignment proposed to be taken by the creditors who asked it, few in number as they were, yet even now contending that the legal result would of itself make the assignment a fraud or a secreting. Then as to the Prov. Act i ; ■ ! P'''''''^'^"'' ^'■^ P^^'"ly conservative : it defines a secreting by the debtor, as the elfec^t, not alone of his refusal to enterinto arrange- ments or to make a composition with, or a cession de biens to, his creditors, but because at the same time of his so refusing he is con- tinuing to carry on his business as usual. The statute remedy was inten- ded to stop iis trade, by the forcible seizure by law of his means of trade.thereby to preventthe trading debtorfrom dissipating ormakin- away with his estate and effects. This is the full extent of the sta^ tute, and it is fair to infer from what it did provide against in express terms, that the presumption of secreting so established by it could not apply to a state of things upon which it was silent, or to debtors who had ceased to trade, as the Defendants had done. And indeed this was the judicial ruling in the case of Macfarlane and Beliveau. The Plaintiff appears to have felt this difficulty by making his affida- vit in ^^e terms of the old law, which contains no such provision about presumption of secreting; and not in the terms of the Statute of 1807 whicn does. Why did he make this special selection? All agree that the stipulation of discharge in the provisional assi-^n- ment was entirely unavailing, because any creditor might obtain his share in spite of it. But granting its unavailing character, it is not necessarily a secreting of the estate, debts and effects, of the Defendants, Leslie & Co., as carefully sworn by the Plaintiff.-Nay so anxious were the Defendants to satisfy the creditors in this matter, tu,:, they proposed a stipulation against themselves, that the discharge, when granted, should not avail to them if their creditors should discover any fraud or malpractice committed by them. If this is ur indication of secreting, it is strange that the creditors themselves should have offered the Defendants a discharge by their protest and demand of the 9th March as Shewn in their Minute book, ai.cl the special answer <.f the Plain.iff, who was aware of the fact at the time he made 1,5. affidavit. A difference of opinion did in fact exist between the credi- tors and the Defendants as to the mode in which the discharge 1 self was to be given, but the condition for a discharge was there ana existed. This was known to the Plaintiff; how then l:^'-' 66 i could the deed containing stipulation of discharge be a secreting of the estate, when the creditors and the Plaintiff lurniiclfvv-tre offering a discharge to the Defendants ? Again wich i-cforence to the land sale : it mriitt he ob;;erved that tie uncontradicted evidence of record is, that tA:q sale wa^* naide to. picvent preferences given by the law of Uppc CJanada, to the first seizing creditor of the debtoi 's lauds, to tiie exclusion of the other creditor:'. I\Ir. Leslie; lias also proved ^,hat he might, as ad- vised of the eires;* of that ii^\i', have applied the entire purchase money in part liquidation ol nis own claim pnfainst the Defcini- ants of from i;7000 to £8000 ; iustrid of ^'hich it forins pait of tne estate assets. — The evidence '.vas precise in chjiracter ; the suf- ficiency of the price given as the value )[' the land iui. ',.: ca proved ; and the entire capability of Mr. Kirkpatiick to I'jlue it is admitted by the evidenc*; adduced by the Plaintiff. — His evidence only corro- boraivs the validity of Mr. Kirlipatrick's valuation upon which the ouIp wm made, because Busch himself admits that the value under a sheir.rs sale would reduce his valuation by one half; that such sales were very liard sales ; and doubtingly staios that they might bring one half of his estimate ; from which if the tinie of the unexpired leases, Mr. Leslie's life interest, and the charges generally be deducted, the balance will be found not to differ much from that of Mr. K. As therefore in this there was no prejudice, tliere was no fraud and therefore in itself no secreting. But here again it must be remem- bered that this sale was made by one of the partners, of his indivi- dual estate, or his reversionary rights in those lands. — ^Now this in itself cannot justify the terms of the affidavit as pretended by him in argument and in his special answer — that the Defendants, Leslie Sf Co., have secreted and were secreting the estate debts and effects either of the firm itself or of the other partner of the firm ; nor justify the affidavit made by the Plaintiff whereby the attachment before judg- ment issued to attach the estate debts and effects of the firm. If the rule as set up by the Plaintiff be good for two partners it must be good against twenty : and if one of these should secrete his private effects an attachment would thereupon justifiably issue against the firm and against his 19 copartners. — Such a pretension is monstrous and ridiculous. It is true that the Defendants' books were badly kept and somewhat erroneous, yet the error spo'-.en of by the accountants and shewn by the Plaintiff's counsel, wt palpable on the very face of the books themselves that a m^ , „ ro in book-keeping woulc ■ V it almost without examin^v ::,n., a; ; ui fact it was at once seen by the : ountants on opening the 'it '^ks. (t appears that upon the retirement of Mr. Starnes in the spv conflict e rule to st be our ourts for slusively the facts and the J has the le doubt 69 is thrown upon the credibility of the witnesses, or where some con- tradiction occurs, or some inference is attempted to be drawn from a former fact not distinctly sworn to, that he is called upon to sub- mit any question to the jury. I shall only add that in Davis vs. Hardy 6 Barn, and Cr. 225, it is laid down, that when the judge is of opinion either on the plaintiffs shewing, or on the uncontradicted evidence of the defendant that there is probable cause, it is usual to nonsuit the plaintilT. I shall not act upon this last authority ; but resting upon those to which I have above referred at length, seeing that there is obsei-ved no conflict of testimony ; in the evidence adduced, no contradictory evidence ; that the facts proved are altogether uncontradicted, and do not require the aid of a jury to find them ; it is my duty to intimate to the jury that the plaintiff has failed to establish in evidence the want of probable cause required to support his action, and that there is no case for the jury, who will therefore record their verdict. (Signed,) W. Badgley, J. S. C. The Jury accordingly found for the Defendants. And before the Court adjourned, as soon as the verdict was recorded, Mr. Abbott rose and said: — I am authorised by the Messrs. Leslie to say that the evidence ->n behalf of Mr. Hooper, shewing the nature of the advice he rec j i from his Counsel before making the affidavit for saisie arr^i, has pro- duced in their minds the conviction which in justice to him they desire publicly to express : that he made the affidavit in question in perfect good faith. Mr. Johnson.— That is very handsome, and ought to put an end to all this. Mr. Laflamme (to Mr. Abbott).— It is a pity you did ;iot think of saying that before. Mr. Abbott.— Oh ! we scarcely expected you would appreciate our motive in saying so. ''•■-'fsfz-isi 70 APPENDIX A. lilO VISIONAL ASSIGNMENT. Oii Uiis twenty-tliird day of February, one ttoii.sand eigli^ hun- dred and sixty, Personally came and appeared, Edward Stuart Leslie and Patrick Leslie, (the assignors), The Honorable James Leslie A.tixander Maurice Delisle, and Henry Starnes, (the assignees), which said parties declared ar f, '' •; Whereas the baJ assignors have become embarrassed in their business and have been compelled to .top payment, and since doing so have been sued by various persons, firms, and corporations, form- ing part of their creditors : And whereas the said assignors have considered it advisable in the interest of their estate and of the creditors thereof, and f.,r their protection, to make an assignment of their estate and effects in the manner and for the purposes and upon the terms and conditions here- inafter mentioned : Now these presents and we, the said Notaries, witness that upon and lor the consider 5ions hereafter mentioned the said assignors have assigned, tiansferred and made over, and Ij these presents do assign, transfer, and make over unto the said assignees accepting iiereof all their partnership estate and effects, and each and every part, and portion thereof comprising their stock, in trado, (as per sciiedule,)&c— butthe said assignment shall extend also to any debts effects, or securities which may have been accidentally omitted in said Schedule To have and to hold the same to the assignees or their assigns upon the conditions ai ■ I for the purposes hereinafter fully detailed and .i^scribea. And the said Edward Stuart Leslie individually also hereby assigns, ^ronsfers, and makes over to the said assignees, accept- ing hu:eot, all his indi,.dual estate and eiTects of every kind and nature whatsoever both real and personal including certain rights and claims in upon and +■ oitoin real estate forniing the estate and succession of his h' -, mother, a detailed description of which claims and of the indivi., ' e-'-ite of the said Edward Stuart Leslie is hereto annexed for ng f edule B. And the said Parnck Leslie individually a'^^o hereby assigns, trans- fers, and makes over to the said assignees accepting hereof all his individual state and effects of every nature and iv.ad whatever both n 1 eiglif hun- ituart Leslie nu'S Leslie, lees), which ed in their since doing tions, form- Ivisable, in nd for their fects in the itions here- that upon 1 assignors )resent8 do I accepting and every dc, (as per > any debts omitted in 3ir assigns ly detailed !0 hereby 8, accejjt- kind and ain rights estate and ich claims Leslie is ;n8, trans- of all his ever both real and personal, a detailed description of which last mentioned estate is iuircto annexed forming Schedule C. And the said assignors, as well jointly as individually hereby agree niid bind themselves to the s lid assignees and their assigns forthwitii and from time to time hereafter on demand to make execute and deliver to the said assignees such formal and valid deeds of sale and truiister to them and their assigns of all the real estate and claim title or pretension to real estate of them the said assignors joiniiy or iiidividuully as may be required bylaw fully to carry out the inten- tions hereof. The present assignment is thus made for the consider- ations upon the terms and conditions and for the purposes following, to wit : Ist. That the said estate and assets may be preserved and taken care of, and prevented from being sacrificed until the negotiable paper upon which the said assignors are only secondarily liable shall have become due, until u hich time any reliable 'estimate of the value of the assets of said estate in proportion to ito liabilities, will be diffi- cult, if not impossible. .'':'\ 2nd. That the estate and assets of the said assignors may be realized in the manner most beneficial to the iirttjrest ot ilic creditors of the said assignors and of each of them : that^ legal expenses may be lessened^; and that no privilege or preference upon or out of such assets may be obtained by any one of such creditors over another or others ; and that upon a surrender of aU their said assets to their cred- itors the said Assignors and each of thern may o)>tain a discharge from their present liabilities. It is therefore hereby agreed by and between the said parties here- to, that the said assignees shall retain m their hands possession and custody the estate and assets real and personal of the said Assignors and of each of them, hereby assigned or intended so to be, until the secondary liabilities of the said assignors shall have matured and during that time shall exercise all due care and diligence in the custody of such c tate and assets and in Uei'- ag ibe same covered by Insurance in so lar as they may be susceptible '■f i?!; ry by fire, and in realising and collecting so far as possible al> lebU due to the said firm of Leslie and Company, and in the sale of such of the goods of tl said linn hereby assigned, as may be perishable ; or as may be so sold at a fair market price and without sacrifice ; retaining the proceeds of such collections and sales, to represent the debts which may be so collected and the goods which may be so sold. That during the said time the said assignees shall fully investigate the position of ilie affairs of the said firm and within as short time as 41 72 credit.- y full stnfpmonfa . f -1 o '^^-' sui"i suuiiiit to tliG Said tta valuo lll™f ' '""' "" '"""■"""'°" '" "■""■ P"«»««" ^specting be the duty r, * i ,t''"^''^*T'u^"^ andin that caseitsirall themselves^fl " th fn? ^'''T' '"'^ *^'^ ^""^^^^^ «S''^« ^"•l bind or to any o he I, ! "f ''''"'^^^ *' *^^ ^''^^'^ ^««'S"«r« the whole of he .Lf Pf °"^ ^"'^^•^"^^^ by them for that purpose, «gneeso inteltd 1 n ^^^^^-^^^^ hereby transferred to the^aid as- «hall then b 0. t L wut'-'f, ^" '*'*' ""^ ^^'^^^^^^^ ^" ^bicli thev lonsinrr to ftl ^''pf^''/^*^^ ^^^ "^oney^ and securities for money be- to, or for the saT^ of n ^J ' ^^ *^' collection of any debts due the who fh, : :: sifcT : tT t r '■'^°"-"^"-" *°' ^^^ '-^ -*^*e ^ by the said ^^ee'St t fo7t^^ ^" ^^^"^^^ said assignors for vv.r,!o i !• * '"^ ^**'''''' occupied by the the legal^'enS^^^^^^ ^"'^ employes and for said eslate afd^t ""e^^^^^^^^^^^^ ""^ ^^^^f^ ^ ^^^ P-tection of the -at, and also of :irS;re^^^ ^ ''T '''''''■ incurred in the cirp n,„nn *^'^Pf^^\*" be by the said assignees aud a.et, heX JlrXLir °''°'"""""°° »' '"^ *'» •he saw assignors br,".!. ^^ "'"gaees, or rtould ,hey and ofsuchco4Xn<,r„tn a„T""T "" "™= ="" "•"'''•™ the debls so due ihem J" ?/ T ""^ """""y "' ^ composition of Ihem, tiien and m that case it is hereby agreed by and s of the said itich creditors !ie nmount of ssets will bo oof, and the be realized ; fc to the said 311 as to the u respecting at any ud- < payable at ;ion of their satisfaction ill be oflered ors then or anient with thereof ex- said assign- case it shall 3 and bind d assignors it purpose, he said as- 'Vhich they money be- f gotten in debts due lid estate ; II moneys 3d by the 'es and for ion of the nt assign- assignees ;he estate composi- they and onditions 3sition of d by and 73 between the said parties that the said assignees shall proeecd io realise and liquidate the estate and effects hereby assigned to them or intend- ed so to bo, and the proceeds of the same to make available for the benefit of the creditors of the said assignors as hereinafter provided, as soon as may be without extraordinary sacrifice tliereof. And it is liereby further agreed that out of the proceeds of the said estate and assets, the assignees shall first pay the rent of the store and warehouse occupied by the said assignors, the wages of the clerks and employes of the said assignors, in so far as the same are privileged : and the legal and other expenses and charges incurred or to be incurred in the protection management and administration of the said estate ; pnd thereafter from time to time and so often as they see fit, declare and pay from and out of the remainder thereof such dividend or dividends to the said creditors as.such remainder will enable them to do. Having always due regard t«tfe nature of the rights and claims of such creditors in respect of tl^fc'^^articular estate, whether separate or joint upon which such crdditors will have the rifht to rank : and also having due regard tb'liie nature of such clafms whether absolute or contingent, and in tlie'.iBvent of their being con- tingent, to the security of the said estate* -jfid the conditions thereof should the contingency contemplated in -the creation of such debts not occur; with power, however, to such'-'aesignees to enter into any compromise with regard to such contingeiit debt as shall appear to them just and reasonable. And it is hereby'further agreed as a con- dition hereof, that any creditors of the said.assignees who shall desire to have the benefit of the present assignmdrtl, and to receive his or their share of the proceeds of the said estate and assets, shall have the right so to do, provided always that before any such creditor or creditors shall receive any dividend or sum of money whatever, he or they shall duly make and execute in authentic form a deed by which his or their acceptance of the terms of these presents, and in consideration thereof, his or their discharge of the said assignors shall be fully and validly effected ; and the proportion or share in such dividend or dividends of any creditor or creditors who shall refuse or neglect to execute such acceptance and discharge, shall be retained by the said assignees or tlieii assigns, subject to subsequent distribution as assets of the said estate, f.uould such creditor or creditors persist in such refusal. And it is hereby also further agreed by and between the said parties hereto, that should the creditors of the said assignors be willing to accept the whole of their said estate effects and assets in full dis- charge of their claims, but should be desirous of themselves appoint- 74 ^" ^zz:^:^':^ ^'^ -^^ -'-«, th. the said of the «aid assign^ Tube "to ;r^ ''" ^^^^'^ ^"'^ ^^-^s hereinbefore provTded Jo to sn . "' '"'^ P-ileged claims that the said Ldifo:s/:e;:v;a^eTt::„if^^^^^^^^ r^''^^' ^^-^« -ent, and in consideration iheLZl'lTZZ^ "" f^^^" ass.gnors from all present liabilities ^ ""^^ '^^ ^"^^ Signed, E. S. LESLIE, " P. LESLIE, Signed, C. C. SPENARD, N. P., '• J. LESLIE, " A. M. DELISLE, " Hy. STARNES. JOHN C. GRIFFIN, N. P.