p.1 Assizes - Eleventh Day - Friday, May 13th
Commercial Bank vs John Cameron - This case, in which a large sum of money was involved, was put off for the present Assizes upon affidavit. It is connected with the case in which the Bank obtained a verdict on Wednesday against John H. Cameron and John A. Macdonald, as the defendant's sureties. Messrs. A. Wilson, and A.J. Macdonell represented the Bank, and Messrs. Eccles, Smith and Harrison the defendant.
Same vs John Wilson - This was also connected with the above, and a verdict was taken by consent for 5,408 pounds, 5 s. 4 d.
(The two cases above seem to have some connection with the following one - ed. )
Bethune v. Corbett - This was an action against the Sheriff of these Counties for an alleged breach of duty in connection with the seizure and sale of the steamboat City of the Bay, under an execution to satisfy a claim of 50 pounds, for the sum of 10 pounds, in the year 1856.
Mr. Eccles (of Toronto) opened the case and stated the circumstances under which the seizure was made and the sale effected.
A copy of the register of the vessel was put in and proved, transferring the property from Messrs. Davy to plaintiff.
B.F. Davy - I reside in Belleville; I was one of the original proprietors of the steamboat, having built her; the hull of the boat was transferred to Mr. Bethune for 3000 pounds, a short time after she was launched; Mr. Bethune took her to Toronto and fitted her up; she came upon the Bay of Quinte in 1854 and ran till 1856. The parties who bought her in 1854 gave 6,000 pounds. A company was organized and authorized Mr. Stewart to purchase her, possession was taken and she was brought down and put upon the Bay. There were repairs put upon her, but I can scarcely tell the amount. The terms of purchase were 2,000 pounds in cash, and the remainder in 1, 2 and 3 years; the notes were paid. No bill of sale was made by Mr. Bethune to the Company up to 1856. The boat was taken from the Company in that year by Mr. Gildersleeve on a writ. There was plenty of furniture on board to satisfy a 50 pound execution.
To Mr. O'Reilly - The vessel was seized under execution in the winter of 1855-6; I came down to settle the execution; I don't know whether the first 1,000 pound note went to execution; the second of 1,500 pounds did so go; the third did not; there was a sale under the first 1,500 pound note to Mr. Gildersleeve, I understood, it was in the spring of 1856; at time of purchase from Bethune a bond was given to perfect the title. After Mr. Gildersleeve had purchased the boat for 10 pounds, he wrote to me to release a mortgage I held upon the hull from Bethune; that mortgage was satisfied by Bethune. The execution on the second note brought 1,050 pounds; this was long before the sale for 10 pounds.
Alexander Stewart - I was the manager of the company who bought the City of Hamilton; I went to Toronto and effected an arrangement for the purchase with Mr. Holland, agent for Mr. Bethune, for the sum of 6,000 pounds. 2,000 pounds were paid in cash, and three notes, one for 1,000 pounds and two for 1,500 pounds; I got no bill of sale of the boat because Mr. Bethune was in England, but took a bond on condition to give a bill of sale within three months; I took possession of the boat and brought her to Belleville; the boat was taken away from the purchasers in 1856; I had no notice of any sale under the small execution, although I was in the habit of meeting the sheriff or his deputy, daily; had I known there was such an execution I would have paid it. On the bond the amount of purchase money and interest was recovered back from the partners of Donald Bethune.
By Mr. Smith - At the time of the purchase I knew there were outstanding claims in the hands of John H. Cameron. I understood that if we were disturbed in the possession of the boat, we were to fall back upon the bond, which we did.
To Mr. Eccles - I understood from Mr. Cameron that there was an incumbrance upon this steamer and the Maple Leaf of 5,000 pounds.
Henry Corby - I was one of the persons who united in purchasing the City of Hamilton. I never heard of the execution under which she was sold for 10 pounds, till after the sale took place; I never had any notice of the intended sale. She was in our possession and running when the sale took place. If I had had any knowledge of the execution I would have paid it. There was loose property on board to the value of 500 pounds. Everything was taken from us. We have never had her since. When the vessel was seized under execution for 1,500 pounds, the sale was advertised. The sale did not take place for want of bidders, and was twice adjourned; when she was sold our agent attended.
James Nosworthy - I was captain of the City of the Bay; she was then in pretty good condition; in 1856 she was put in good running order. I attended the sale on the execution against Corby and others, to buy in the boat; there were several persons present; Mr. Gildersleeve made several bids; his highest bid was 1,050 pounds; I bid 5 pounds over him; I then hurried away to get the amount of deposit, 100 pounds, which he required within ten minutes, which he said if I did not do, he would adjudge the boat to Mr. Gildersleeve; I went to the Bank of Montreal to get the money, when some person came into the bank to tell me I was too late, and that the sheriff had gone down to deliver the boat over to Mr. Gildersleeve; Mr. G. held possession for a week; he put Mr. Finkle on board, but I held possession of the after part of the boat and continued running the boat with Mr. Finkle on board; I don't know of the subsequent sale, but I understood of it from Mr. Draper. Mr. Draper came down and forbade my taking it out; I asked why, and he answered me that he had bought it.
To Mr. Smith - I was acting as agent for the owner; I don't think I told the sheriff that I appeared to bid for myself.
O.S. Gildersleeve was called and produced the conveyance from the Sheriff to Mr. Draper, and from Mr. Draper to him.
George B. Holland - I was the agent for Donald Bethune, and effected the sale. I was not aware that there was a mortgage upon the boat at the time of effecting the sale. Mr. Stewart and Mr. Dalton were the persons who told me of the fact, and I went to Mr. Cameron and told him of the sale, and agreed to deposit a sufficient portion of the notes to redeem the mortgage, and this arrangement was consented to. The mortgage included the Maple Leaf, which was subsequently sold for 12,500 pounds. The original mortgage to Davy was paid before the sale. I never had any notice of the execution; if I had been made acquainted with it I should have notified the directors, and they would no doubt have paid it.
To Mr. Smith - I know that the company with which Mr. Bethune was connected was embarrassed; I know that sheriff's executions against Mr. Bethune could not for some years have been satisfied.
Mr. Gildersleeve was called to produce papers, and produced mortgage of 13th January, 1853, from Donald Bethune to James Cotton, conveying the City of Hamilton and Maple Leaf to indemnify him for loss on a mortgage of Cotton's lands to Cameron; Cotton to Cameron; assignment from Cameron and others to O.S. Gildersleeve; assignment from Dickey & Eves of claim against the boats; the (fi-fa ?) under which the boat was sold.
Wm. Lowe - I was deputy sheriff in 1856; I recollect the fi fa produced; the paper produced is the bill of sale which followed; Mr. Gildersleeve told me to seize and sell his interest in the City of the Bay; I advertised the sale in the usual way; I put up a notice in the Sheriff's office, and one outside the building; Mr. Gildersleeve, Mr. Macdonell, and Mr. Draper, were the only bidders at the sale; Mr. Draper was a partner of Mr. Gildersleeve; there wasn't much competition to get the bids up to 10 pounds. Mr. Gildersleeve showed me a long list of titles, and I supposed he was the only one who had a real title to the boat. I went down to the steamer, but not finding the captain I told someone who was said to be in charge, that I had an execution (Dickey et al against Bethune) but the amount was so small that I wouldn't stop the boat from running.
To Mr. O'Reilly - There were a number of executions against Donald Bethune lying in the Sheriff's Office, which were returned nulla bona. One of the persons, Mr. Draper, I think, told the sheriff that he would not get us much again. The sheriff tried to get all he could, and he had some hesitation, and he came to consult me in the matter; he was afraid to keep the vessel over, for fear he would not get anything at another sale. Mr. Gildersleeve made a remark that it was like throwing money in the stove; I told the sheriff that I did not believe Donald Bethune had any claim to her.
To Mr. Eccles - I formed an opinion that Mr. Gildersleeve held the title to the boat from his having told me, and from showing me a number of documents.
O.S. Gildersleeve called for the defence. - I am subpoenaed by both parties; I have possession of the vessel; I received a printed application from Mr. Cameron offering a mortgage on the boatl; I purchased it with the object of getting her off the bay, but not for its value; I paid something like 3,500 pounds; the boilers are completely worn out; the engines are also past use; if title is proved in me she is for sale at less than 750 pounds; I placed no reliance on the 10 pound sale, and was ready at any time to hand it over, I held under the mortgage from Cameron; I subsequently replevied on that claim; I have not the slightest pecuniary interest in the present action; I had no interest in Dickie's claim, in which the boat was sold for 10 pounds.
To Mr. Eccles - The boat has cost me 10 pounds.
A.J. Macdonell - I was present at the sale; the sheriff asked me to bid; I was under the impression that there was nothing to sell; I think I bid 5 pounds at the request of Mr. Gildersleeve; Mr. Gildersleeve showed me a certificate of ownership.
To Mr. Eccles - Mr. Gildersleeve didn't tell me that he also had the notes of Davy and others as collateral security.
John Munro - I was engineer of the City of the Bay in 1857 between Toronto and Hamilton; her engine and boiler were strained, and in a very defective state; the vessel was laid up the principal portion of 1856. The hull was much strained, and in a heavy sea she made water. I took proper care of her during the two months she ran and did not force her.
Clark Hamilton did not think the City of the Bay would have brought 3,000 pounds in 1856.
G.M. Kinghorn valued the steamer in 1856 at 1,500 pounds.
George Davidson placed the cash value at 1,500 pounds.
Joseph Doyle placed the value at 6 to $7,000.
Mr. Smith addressed the jury on behalf of the defence and Mr. Eccles replied in a speech of much power. His Lordship charged strongly in the plaintiff's favor, and the jury after retiring for a short time, returned a verdict for defendant.
Messrs. Eccles and Crombie for plaintiff; Messrs. Smith and O'Reilly for defendant.
This case, being the last upon the docket, completed the business of the Assize. The Court rose at 6 o'clock.
Kingston & Wolfe Island Ferry
PIERREPONT AND GAZELLE
Leave Kingston Leave Wolfe Island
At 7:40 A.M. At 7:00 A.M.
9:00 A.M. 8:30 A.M.
11:30 A.M. 1:00 P.M.
2:30 P.M. 3:00 P.M.
8:00 A.M. 9:00 A.M.
1:15 P.M. 3:00 P.M.
Steamboat Office, United States Wharf,
Kingston, 16th May, 1859.