WARDEN'S COURT.-Yesterday.

Thames Advertiser, Volume VII, Issue 1883, 5 August 1874, Page 3

WARDEN'S COURT.-Yesterday.

(Before W. Fuaseb, Esq., JUL, Warden). .VlcQbiuiu and Another v. M. rIiNNAFdiiD. — riiii* was a plaint laid against the defendant lor breach of agreement, for not erecting a raining plant for the joint use of plaintiffs and defendant, and payment to.plain'iffs of the sum of eSO. I'hat by default of the defendant the complainants had lost the profits which they would have derived from the use of the" said plant, and have been put to great loss of tim; by reason of defendant's default. The complainants claimed that the Court assess damages sustained by the complainants, and that the defendant be ordered to pay to thecomplainants the amount bo assessed, and that the complainants be grained such: other relief as the ! ourt rowy see fit.— Mr Macdouald for the plaiutiih, and Mr lyler for the defendant. -Mr vlaedonald opened tin case by mentioning the circumstances which gave rise to it. It appeared that defendants had a claim on which there was a battery of 4 head of stampers, which was not very elaborate in its construction. They had not means to improve it., They went to Mr Hannaford or he came to them, and a" contract was entered into, by which Air Haunafot'd was to add auother 4 or 6 head to the battery and do the other work set out in the plaint. On the streugth of this arrangement Mr Hannaford brought up. the component parts of a' battery, but stopped short of erecting it, and did not pay the money, except by a financial arrangement, which looked as if Mr Hanna ford wanted them to pay it themselves by getting them to sign a bill. By reason of the action of the defendant's default their battery was left useless. It was no wish of the plaintiffs to take any advantage of the defendant, but wero willing 'to meet him fairly. If he was willing to carry out the arrangement.— ■ William McQuillan,.jun., one of the plaintiffs in the action, deposed: lam a miner. The other plaintiff is my brother,' we hold miners' rights. We were possessed of the Trafalgar claim and of a ma- . chine site and water right. On the midline site we had a battery driven by water power, aud a water race constructed. That plant we had in operation. JNegociations were opened between us and Mr Hannsford some time before Christmas. He came to look at the mine and battery. He said, " ?ou want my 6 head battery here. In fact you want the 10 head tor that mine. My brother said we could not afford six head more, that we would go onwith4headaswewere. Afewdaysatter Mr Hanuafordproposedtoputup6 head of stampers, 2 berdans, a tramway from the claim, and to enlarge tue house. We (vent to Mr Hannafurd's office, tie wrote a note confining the agreement, whichhe read to us, we agreed to it. There was no writteu agreemeut signed. He was to put up 6 head of stampers, 2 berdans, supply timber and labour for extending the shed, aud to put up stampers, I and my brother assisting; and was to give us £50. He was to see a party in town who would advance it. In the meantime we were to sign a promissory note until he got the- party, to advance it. He was to complete the tramway with our assistance. Tue 6 head were to be put up aud joined by to the 4 hoid, and defendant was to fiud the t'hese are the particulars of wnat was to be done, and when all these things were done Mr Hannaford was to,, nave half the claim and -battery, and -my--brother and me the other naif. Onttie strength of ttiis arrangeuieut we got the 6 head of stampers up irom Briton's yard.' wo mea helped us wiiti the bed log across the bridge, aud we then toid t iem wo had . no more need of tuem that day. Two carpenters came up aud ficed one large puliy <>n tile water-wheel, aud mide a .■mull pally to drive the 6 iiead. ■ I'hey.. came and altered the house to their own iaste We sent to Mr ilanu.tford aud told him that it would not suit in that way.-Cross-examined: Mr Hannaford was to become equal partner»ith us iu claim, battery, and machine site when the work was completed.-Mr t'yler submitted chat the c«e must fail as there was no writteu contract. -Vlr Macdonald replied. He admitted ttiat so far it was not.uoder:: the statute of frauds, but it was removed-,, from it, as there was such a part perfor- : mance of the contract as would take it out of the statute of frauds. -Mr Tyler agreed to take it on this point, and argued tue ; question at considerable length, quoting authorities in support. — The Court then adjourned until liaif-past2o'clock.— ifter the adjournment, Mr Tyler quoted some other authorities on contracts, contending that the action at law was not removed from the statute of frauds; that the part performance of the contract' by the defendant did not so remove it. )uly the part performance of the agreement by the plaiutiff could have that effect.-Mr Macdouald replied. He contended that this was not only a court of law but a court of equity, as was shown by the .complaint made. The Court would no doubt exercise jurisdiction m both. He contended that on the strength of the agreement the plaintiffs and defendant placed themselves in different positions to what they previously were, as was shown by the defendant carrying out a portion of the work in plaintiffs' ground. He replied to the authorities quoted by Mr Tyler. He did not think lie could support the claim for specific damages, and the only locus standi he iiad iu Court was in the general prayer for relief.-Mr lyler replied, contending that the objection was tatal to the case.' Cue general prayer for relief could only be considered as it referred to the body of ihe plaint. The action was for damages. I'hey could not turn round and make it an action" for specific performance.—His vVorship said that the law was undoubtedly on his (Mr Tyler's) side, and he must decide the point in that way. He had a reluctance to do so, as ho was in hopes of getting quit of the case, which was 5, sure to crop up again. He would recommend them to settle the matter between themselves. -Plaintiff was nonsuited, with CjSis £7 ss. PoiiPiaa association v. IIIPKBIAIi Oitt tx.M.C—in this case Mr Macdonald made an application for an order to enable the plaintiff to examine the defendants mine to ascertain. the depth of their workings, &c— he application was supported by an affidavit of Mr Miller. -His Worship said he had grave doubts regarding the granting of those orders, but as he liad'done so in the other cases he would in this, and the order was granted. ; ' . - , The Cjurt was adjourned until Thursday.