WARDEN'S COURT AHAURA.

Grey River Argus, Volume XII, Issue 1268, 22 August 1872, Page 2

WARDEN'S COURT AHAURA.

; Friday, August 16. (Before 0. Whitefoord, Esq., Warden, and four Assessors.) Thomas Doolen and party v. James Montgomery.— An aolion to recover L 25 for renl .of a waterrrace at Duffer .Creek, , and L2O special damages. Messrs Wm. Jones, James M'LaughHn, H. W. Young, and James Stewart were sworn to act as assessors... Mr W. S. Staite appeared for the complainants^ and Mr W. Pitt for the defendant; This ca»e had previously been before the Court, when ft verdict went for tho complainant* eh womnt of the non-appearance jolftte defondant, Am application was Subsequently tm&a en behalf of the defendant for w't&hming, on the ground that the defendant hid » good defence to the action, and »\m \)& oausOiit was imppssiblo ho could reaefe <3b« Court on the summons on account of th§ floods. The complainant* are tlus qwugis of a .water-race, terminating at; Doflfer Creek, and the defendant vf&» & member of, a., company ,at one time working one of the deep yreb , claims onihe Duffer-Sullivan Lead/ «««* the junction of the Half-Ounce and Dofler Creeks. In Mayj 1871, the parties made an agreement in writing, by which the defendant was to-have water from the race of the complainants to work their machinery. The agreement was for the terms, of twelve' months^ tat the rate of j LSO a year. L 25 was paid down, and the balance woa.to.bipaid-at the end; of six months., ..The^raceiwas to be kept in good repair and delivered up in the same condition, j The cost] of 'keeping; the race in repair. /was utpube;. paid 1 out of anyiinoney the?iessee ! would receive for >3rainage; rent : from' ' -the i claimholders^ • and- the income deri.vecjL.from,sa.le or use of the water was to be. divided .equally between the owners^ and tenant of the ; ' rase!- The chief : allegation" of the" complainants^was'that the : defendant ,didj>not deliver up the race in good-order-as.-per agreement, . and the special -damages-; claimed were for ipjuiydone the fluming,, during a floods which damage, it was!contended, could not; have taken place if the defendant kept the race in good repair,, as, he, was .bound to>doby the agreement. 0 The 'evidence of the , complainants D.oolan was taken, and he that the ; racej was '-. never formally • taken re?poasessipn of jby . his i-partyi and ;that .>the : defendant f-.-was; r considered lessee- of -the.) propertykuntil^the: time mentioned intheagreement had expired. , Atihe .conclusion of >the case^or tiieicomplainants, ; ;Mr/iPitt.rmoved for afiionsuit, on the ground that all the parties to the agreement ought to have been sued.' The partners of the /defendant were equally liable with him if 'any liability existed, and the whole ; of. them pught to be imen■iione.d. iri,.the' ! u sum plie'd^ and," after ',■-. argiiinentj suggested it- would be better.t o. let the case go on its, merits to the jury, before a decision was given on the nonsuit point. ; The. defence, . ;as ,proyed ;bx-;several witnesses, was that the water was first turned off the : defendant's: ■ machinery by the! complainants, and that the defendant took this as a cancellation, of' the agree-,' menti and commenced tbcuVa race for himseh*, which was finished nbef ore;: the : term of the ~had r " expired. Doolen'spartylt6ld?the defendant that as there was more demand for the jwater than when the agreement was made, they would take the race back in preference to receiving the ■- rent. : ., The race Montgomery began to make was [taken past 'the tunnel of the ; complainants, and they must have. known that the defendant was ;dn iwater.ifjor his own use.; ■ It-was, ;argued r jthat. ; ,butj for a . disp.ute.between Doolen and : Montgomery the,acti6h would neyer be brought { and, ißbally. "that when tlie : aefendaai Montgomery left! the claim/ the rest ; of the company took over all his liabilities, mr: ,cluding;tb.e < ,rent of v ,this. .y?ater, anfl-that ; the' cbmplaihants were aware of this. The ,case lasted the^greafer part, Jof-|h6 day, and after a lengl;£ened l deUberation,~the' jury found; for the;defendant, withlcos'ts; 5 As the judgment was for the defendant, the: point raised by , Mrj Pitt; was' decided in his fayor by the yerdictof. the as-, sessors. '^-i;,',,, V .,^,;V' " ' ; ' v ; "''-' '"■ 1