WARDEN'S COURT.

Thames Star, Volume IIII, Issue 1743, 4 August 1874, Page 2

WARDEN'S COURT.

THIS DAY. (Before W. Fbaser, Esq., Warden) ACTION JOE DAMAGES.

Win. McQuillan and Arthur McQuillan v. M. Uanniford—The plaint set forth that in or about September, 3873, there was a certain agreement made between the plaintiffs and defendant, by which certain mining plant was to be erected by the defendant, and by the default of the defendant the plaintiffs had lost the profits which would have accrued from th« use of the machine, wherefore the plaintiff* claim that the Court assess such damages as it may see fit. Mr. Macdonald for the plaintiffs ; Mr. Tyler for the defendant.

Mr. Macdonaldj in opening the case, said that the plaintiffs were owners of a claim, and on it was a small battery of four heads; and that the falling off in the claim had not been caused by the fault of the battery, but by the paucity of the stuff. The plnintiffs had met defendant, and a contract had been entered into to increase the battery power and put it in working order, also the tramway, Ac. On the strength of this arrangement had partly done some work. The stamper boxes, &c, were j provided, but the battery was not completed, the work being stopped short. A "bill had been taken *by defendant which they had had to meet. The plaintiffs had suffered material damages from such non-completion of the contract. The plaintiffs had no wish to push defendant if he would complete his part of the bar-

gain. William McQuillan deposed—l am one of Ihe plaintiffs. [The plaint was here altered to William McQuillan, junior.] I am holder of a miner's right. (Produced.) I and my brother are in possession of the Trafalgar claim also a machine site and water race. On the machine site is a battery. It is a water-power battery. We have had it in use crushing. We opened negotiations with defendant about last Christmas. He came up to look at the mine and battery, and remarked, *' You want my six head battery here instead of four, in fact you want ten head with that body of atone." My brother said we could not afford it. Defendant then made a proposition to put up a six-head battery and two berdans, also a tramway, on condition that he had half the claim and battery. We went down to his office when we asked him for £50 as we could not afford to do the work. That was to pay expenses. We had no written agreement—none whatever. He was to put up six-head of stampers, two berdans, and find timber and labor for extending the shed and any other necessary work in its erection ; I and my brother to lend assistance. The £50 was advanced us on a promissoiy note. We undertook to accept these terms. The six-head were to be joined on to the four, and make a ten-head battery. Defendant was to find cog-wheels. The defendant sent six head stamps up from Briton's yard. We had some slight help from men who were sent up by defendant. He came late and did a little. Two carpenters came up and made tw,o pullies, and altered the house to their own pleasing. We sent word to defendant what the men were doing. To Mr. Tyler—Defendant was to have half of every thing belonging to the claim and the claim itself.

Mr. Tyler submitted that the case must fail, as no written agreement had been made.

Mr. Macdonald said that this action was brought under the Statute of Fraud, and circumstances had arisen which would enable him to carry on the case ; part of agreement having been performed by the defendant.

His Worship held that it was clearly a contract under the Statute of Fraud.

Mr. Tyler quoted from Smith, that it was no answer to the case in pleading that part of the contract had been carried out; he also quoted from Chitty. Mr. Macdonald replied. His Worship suggested that an arrangement should be made by the parties, and adjourned the Court till half-past one for this purpose. No amicable arrangement having been come to during the adjournment the case was proceeded with.

Mr. Tyler resumed his argument, and contended that these proceedings were brought according to the law, and not under equity. Mr. Macdonald replied that his client had come into the Court seeking relief from a grievance, and brought his action into this Court both as a Court of Law and a Court of Equity, and he would ask his Worship to decide on the general prayer for relief as set forth in the plaint. Mr. Tyler contended that this objection was fatal.

His Worship said he would much rather the case could be settled by agreement. He was supristd' that the defendant, being a good man of business sheuld have conducted the agreement in so loose a manner. Plaintiffs must be nonsuited.

Nonsuited, with, costs, £7 5s

Mr. Macdonald made an application from the Pumping Association that the surveyor of the Association be allowed to ascertain the lowest depth of the workings of the Imperial City Gbldminirig Company. Order granted. i The' Court adjourned till Tuesday next.