Mallory vs. Loyst [Nov 15 1861]

James Fraser vs. Fralick [Nov 15 1861]

Ham vs. Lasher [Mar 31 1863]

Fraser vs. Fraser [Apr 2 1863]

Thompson vs. Bogart [Apr/Oct 1863]

Mallory vs. Loyst

[Weekly British Whig Nov 15 1861]

Sir H. Smith in opening the case said, that the action was one in which Mr. Edwin Mallory disputed the possession of a piece of land, and declared that defendants, Peter Loyst and James Sharp had trespassed thereon. This land was the west half of Lot No. 3 in the 2^nd concession of Fredericksburgh and contained 10 acres. Sir H. Smith said that a survey thereof had been made many years ago and if the jury could satisfy themselves that it had been made by the sanction of government, it would go far to establish the case of his client. That some 30 years ago a line had been laid down in the rear of the lot in question and no person could cross that line, well defined as it was, without knowing he was committing a trespass. If his client could shew the continuous possession for a number of years, it came, he thought, with a bad grace to dispute the former.

Mr. Jacob Huffnell sworn and examined by Sir H. Smith – There was a petition got up somewhere about the years ’32, by the inhabitants, concerning the survey of the piece of land in question; this was to take into consideration the piece of land according to the Act of ’26. I was one of the parties affected by this survey; Col. Dunn, John Church and Squire Dorland, magistrates, living there, held a meeting to consider this survey; this meeting was held in Church’s house in the 1^st concession; there was a survey made after it by a Mr. Elmore; I do not know if Mr. Lowe’s papers were burnt when Mr. Lynch’s house was burned down; Col. Dorland is now living and I think he is about 76; I believe he is too feeble to come here and give evidence; there was an assessment made after the survey upon the people, and the money collected; I paid my portion of it to the collector, whose name was John Clapp; he is dead; one half of No. 13 is in Fredericksburgh, the other in Adolphustown; the people all changed their lines from Lot No. 1 to 12 after the survey; I speak of the 2^nd concession. I know Mr. Mallory and knew Mr. Clapp; Gilbert S. Clapp, the surveyor, is also dead.

To Hon. Mr. Campbell – I once had an action about the rear line of my lot; the point in dispute was the line between the 2^nd and 3^rd concessions; the dispute was with my neighbour, Mr. John Clapp; I gained the suit; Mr. Elmore’s line took some of my land from me and gave it to Mr. Clapp; I beat the latter in the suit; I objected to Mr. Elmore’s survey for the former reason; there are 12 ½ lots in Fredericksburgh division; witness here mentioned the names of a number of magistrates who lived in that division at the time of the survey; John Clapp was collector; bit I don’t know if he was an assessor or not; in the year 1826, the magistrates generally met in Kingston or at Adolphustown as the case might be; the Court of Requests was held at Church’s house in those days; the magistrates were Squires Allen, Emery and Casey, for Adolphustown; and Squires Lowe, Chamberlain and others for Fredericksburgh; I am not sure whether or not the meeting before mentioned was appointed by the magistrates or the people; it was, I think, held in the month of June.

To Sir Henry Smith – the petition was signed by three-fourths of the people in Fredericksburgh additional; Mr. Church and Mr. Lowe were magistrates; Mr. Dorland and Mr. Casey the same for Adolphustown; Messrs. Church and Lowe were always present at the meetings held in the house.

William Lowe, sworn and examined by Sir H. Smith. I am son of the late Squire Lowe of Fredericksburgh; he died there on the same lot; he had a great number of magisterial and other papers in his possession; after my father’s death, I took them up to Mr. Lynch’s house, where they were burnt when the latter was destroyed in 1849; none of my father’s papers were saved.

To Hon. Mr. Campbell – I recollect Squires Dorland, Casey, Church and German in the Court of Requests, but not Emery; I remember German being there once.

Mr. Huffnell was recalled and said, - When the petition was presented, Squires Lowe, Dorland, Church, German and it may be Casey, were present at the Court of Requests.

Hon. A. Campbell raised several objections to the evidence offered by the plaintiff, contending that there was a majority of magistrates at the meeting held in the Church’s house to grant the survey, and that therefore it was a legal one. On the other hand Sir H. Smith was of opinion that there was not a majority of them.

Gilbert Griffith, examined by Sir Henry Smith, - I have known Mr. Mallory to cut wood on the line in question; the land cleared was cleared about 22 years ago; the posts put down by Mr. Elmore are well known to me; I don’t know if or if not Mr. Mallory ever found out who had cut the lumber on the land, or not; I myself saw it had been cut; Peter Loyst, defendant, lives upon Lot No. 3, 2^nd concession, in a shanty, or rather a wigwam; he went there in April, 1860; I do not know where the timber of which this shanty was built was taken from, but I think it was constructed of timber dragged on to the land; it seemed to me that the timber had been prepared on other land than that of Mallory.

To Hon. Mr. Campbell – I don’t recollect ever telling Mr. Wright that the land was enclosed; I should think there were over 4 acres enclosed; afterwards it was allowed to run to waste and became a common. The posts I speak of make No. 3 shorter than No. 4 or 5; I don’t remember Messrs. Diamond, Embury, or Garrison being with Elmore when he put down the two posts; I don’t know whether or not my people were there; 6 or 7 years ago some person or persons cut some timber down upon the piece of land in dispute.

To Sir H. Smith – I never saw a line of posts across the point of land in dispute.

To Hon. Mr. Campbell – If I was to gain the land I am now contending for, my complement of land would be short; I can’t be sure that the people at first, in Fredericksburgh, settled round the Bay.

Richard Beadle, examined by James A. Henderson, testified, - In 1809, I lived upon the lot in question; I occupied it until the year 1826; I made a clearing on the lot about the year 1820 or 1826, but I cannot be certain; I cleared three or four acres and fenced them; after having tilled them, I was rewarded with a crop; one of my brothers, George Beadle, a young man, went into possession of it afterwards.

To Hon. Mr. Campbell, - John Emery owned the lot in rear of the lot in question.

Stephen B. Beadle, examined by Sir H. Smith, - I am the brother of last witness, and have been living on the west half of the lot in question, in the 1^st concession; I made sugar on the lot; I went, as far as I remember, about 10 or 60 rods north of the rear line of my lot, cut down timber and made troughs for sugar; I should judge I went 40 rods north of Elmore’s line, and having found a good maple wood determined to made sugar; here I cut timber for sleighs and other things; I had Pike’s old patent of the land in my possession, and finally Embury allowed me to use the land for making sugar.

To Hon. Mr. Campbell, - I know nothing about the Embury boys making sap troughs or sleighs of the trees which stood on this land I used.

Jacob Wager, examined by Sir Henry Smith, - Thirty-five years ago I cut some rails north of the clearing, and also three elsewhere; the piece of land enclosed, when I first saw it, was sod land.

Mallory testified – I never knew who had cut the trees down on my father’s land; I could not tell how many acres my father has altogether.

David Griffith, examined by Sir H. Smith, said – I know the line run by Mr. Elmore; no one could make a mistake about it.

Mr. Sharp, examined by Sir Henry Smith, said – I am living on the piece of land, and I went on it on account of the dispute; I never asked Mr. Loyst’s consent; I suppose it to be his land now; I took liberty myself in going upon this land; I’ve got a cow and a couple of hogs; Mr. Loyst’s land runs south of where I live; I have not the least title to this land; I and two other persons drew logs, partly off Loyst’s land, with Hall’s team; James Loyst was there to help us; I never asked Loyst for a deed of the land; I never paid any money to any one to defend this suit.

To Hon. Mr. Campbell – There have been several law-suits about this piece of land; Mallory’s son frequently offered me money for the possession.

Defendant Loyst, examined by Sir H. Smith, testified – I claim the piece of land marked out in the chart as mine; I know the Elmore line and claim a piece of land comprising 10 acres, upon part of which stands a shanty; I had no conversation with the man Sharp that I recollect.

To Hon. Mr. Campbell – Thirty years ago last June I cut timber and sap troughs upon this piece of land, half way down from Elmore’s line to the clearing; I treated the land as my own, and did not go upon it supposing it to be Mallory’s land; I cut my wood nearly as freely north of Elmore’s line as south of it; was there at the time Elmore made his survey, and the first post he put down was south of the line; there was another post also put down; they cut off the east and west corners of the lot.

To the Judge – The first post was put down in ’33.

To Hon Mr. Campbell, - The first post put down in 1833 made my lot as long as my neighbor’s and it also threw the clearing into it.

To sir H. Smith – I have got 100 acres within the limits of my land at present; Mr. Mallory has only 82; Sharp never wished to go off the land as far as I know; Squire Mallory proposed and arbitration, to settle our dispute 22 years ago.

Hon. Mr. Campbell said, defendant claimed a verdict under the plea of ‘not guilty.’

The Judge stated that Mr. Campbell was entitled to a verdict for his client, as the plaintiff had not connected him with the trespass.

The Judge then charged the jury and said that he thought reasonable damages against defendant, Sharpe, should be given. Verdict for defendant Loyst on the plea of “not guilty.”

Damages $50 against defendant Sharp alone.

Sir Henry Smith for plaintiff; Hon. A. Campbell for defendant Loyst – Sharp had no counsel.

At 5.30 the Court adjourned.

James Fraser vs. Fralick

[Weekly British Whig Nov 15 1861]

[Note: Possibly should read James Fraser vs. Fraser?]

James Fraser vs. Fralick. – Action of ejectment for the west half of Lot No. 26, 5^th concession of Fredericksburgh, devised by plaintiff’s father, one Noah P. Fraser, in 1841 to him (the plaintiff).

Joel Smith, examined by Sir H. Smith – Lives in North Fredericksburgh, on the east half of Lot No. 26; knew Noah P. Fraser, father of the plaintiff; is one of the subscribers to his will, dated 21^st April, 1841; is in his handwriting; was executed by the testator, in presence of deponent; his son, and Elizabeth Gardenier, plaintiff’s grandmother, were all present; knows the west half of Lot No. 26, 5^th concession of Fredericksburgh, on which said house and lot Noah was living; Noah died in possession of it, living upon it as the owner; lived two days after making will; left it to his widow; she subsequently married James Lake; thinks that they rented the lot; deponent came into possession afterwards; it was leased to him by the widow, heir after Louisa Gordenier; an action had been brought by Mr.. Roblin; 50 acres were given, the east half of the west half; plaintiff went into possession of the other half.

To Hon. A. Campbell, - Lived there since he was born; first owner was one Smith; William Crawford was nominee at one time; Fraser was owner; he bought it in 1815; Noah P. Fraser was once in possession of lot -, got from his father, Abraham Fraser, who died there; a house was built by Isaac Fraser; he told him (deponent) that his father had given him a deed of the place; this was some years before deed to Noah; Isaac Fraser left the lot in his possession and removed to Adolphustown; can’t tell when he left; he was married about two years before he removed, and when he got the deed from his father, moved into the house and lot with his wife. Isaac Fraser died about the Trent District, and his wife died in Adolphustown, about three years after he removed. Some of his relatives brought his body back and interred it at home. Isaac Fraser was the eldest. He left one child, called Randolph, who was of age in January, 1849. He was born on the place aforementioned. Noah B. [sic] Fraser was put in possession of the lot by his father, Abraham Fraser.

Cross-examined by Sir H. Smith, - Isaac Fraser left the lot in his father’s possession. He does not know why he went away; his (Isaac’s) father remained in possession till a short time before Noah’s death; thinks Noah died ten years before 1841; knew Abraham Fraser well; knew his handwriting also, but could not swear to it.

David Fraser examined by Sir Henry Smith, testified, - Lives in Ernestown, and is son of the late Abraham Fraser; is brother to Noah P. Fraser; Abraham Fraser died 22 years ago; Isaac Fraser his brother, died 30 years ago in Colborne; knows the lot in dispute and has seen it; Noah P. Fraser died upon and in possession of it; Abraham Fraser died in his house in Ernestown; never heard his father lay claim to the lot, and he (Noah) made no will; Abraham Fraser had some papers; there was a deed, which Mr. D. Roblin took away, about the time of last suit; thinks the deed was to his nephew; it was torn; Noah P. Fraser died in possession of the land, and willed it to his son, James Fraser, the present plaintiff; Mr. D. Roblin brought the action; he was claiming the lot for his nephew.

To Mr. Campbell – Isaac Fraser was in possession of the lot, under deed from his father, since about 1824; the document he gave to Roblin, he thinks, was the deed from Abraham Fraser to Isaac Fraser; Isaac Fraser built upon the lot and was to have given £75 to his father for it; it is not known if the money was ever paid.

After this, two or three other witnesses were called for the plaintiff.

For the defence two or three witnesses – one Mr. Fraser, to prove the consideration of a deed from Abraham Fraser to Isaac Fraser.

The Hon. Mr. Campbell in addressing the jury argued that in 1847 there had been a settlement effected on an action brought on the lot in dispute, which settlement was a most righteous one and ought to stand. As far as the legal merits were concerned he stated they were most righteous, as the deed of the lot in question had been given from Abraham Fraser to Isaac Fraser who was seized in fee and went into possession. The giving up of the deed did not convey away his estate in that lot.

Mr. Campbell then stated to the jury that he would leave the case in their hands with great confidence as to the result.

With equal confidence Sir H. Smith addressed them, maintaining positively that the deed had been cancelled, and the plaintiffs were entitled to recover. – Verdict for plaintiff.

Ham vs. Lasher

[Daily British Whig Mar 31 1863]

The Court was occupied to-day in the trial of the case entitled Ham v. Lasher. Action of ejectment brought to recover a piece of land in South Fredericksburgh. – The plaintiffs, john v. Ham and Eliza Ann Eleanor Ham, his wife, claimed under a patent from the Crown, granted to Mrs. Ham in July, 1861. This case was tried at the Fall Assizes in 1861 and 1862, and twice verdict was given for defendant.

Fraser vs. Fraser

[Daily British Whig Apr 2 1863]

Fraser vs. Fraser – Action of ejectment brought to recover a lot of land in the Township of Fredericksburgh.

Plaintiff claims through one Isaac Fraser, who received a deed from his father in 1823.

Defendant sets up title from the same ancestor, Abraham Fraser, who deeded to another son, Noah, in 1839, and registered that year. It appears that Isaac Fraser, after he received the deed from his father, died in 1830 or 1831, leaving an only son, Randolph Fraser. Isaac died at Colborne and his father continued to live upon the lot contended for. After Abraham’s death, in 1841, search was made for his papers, and the first deed from him to Isaac was found, with the name and seal torn off. The question in dispute then was, whether there ever was a surrender of that deed by Isaac to his father and if the Statute of Limitation applied, old Abraham Fraser having continued in possession till the death of Isaac, and previous thereto; while the second son, Noah, continued in possession after him.

Sir H. Smith for plaintiff; Messrs. G.L. Mowat, W.G. Draper and J.O’Reilly for defendant.

The Jury had not returned their verdict in this case when we went to press.

Further [Daily British Whig Oct 8 1863]

Action of ejectment brought to recover a lot of land in the township of Fredericksburgh. This is the fourth time it has been brought up for trial. [information above repeated] This case occupied the whole of the day and a very large number of witnesses were examined.

Thompson vs. Bogart

[Daily British Whig Apr 9 1863]

Thompson vs. Bogart – This was an important action of ejectment for a valuable farm of land worth $10,000 in the Township of Adolphustown. The plaintiff claimed through a Sheriff’s deed, the property having been sold under an execution against Nicholas Bogart. Previous to the Sheriff’s Sale, Nicholas Bogart, defendant’s father, deeded it to him. The question raised at the trial was whether the defendant’s deed was bona fide and for good consideration, the plaintiff contending that the deed was void for want of consideration. The case occupied the whole of the day until near six o’clock. The Jury, not having agreed before eight, the Judge had to discharge them without agreeing upon a verdict, as he had to leave for the Perth Assizes.

Mr. G.W. Draper and Mr. W.H. Wilkison for plaintiff; Mr. J. O’Reilly for defendant.

[Daily British Whig Oct 15 1863]

Thompson vs. Bogart – this case occupied the Court the greater part of to-day. The action was, as has been stated, brought for the recovery of Lot No. 21, in the 4^th Concession of Adolphustown. A great deal of evidence was gone over, the question being whether or not the transfer of said lot from the defendant to his son, David Bogart, was or was not a fraudulent transaction to cheat the creditors of the said Nicholas Bogart. Sir Henry Smith and Mr. W.H. Wilkison for plaintiff; Mr. O’Reilly for defendant. Verdict for plaintiff.