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Colonial Cases

Douglas v. Erskine, 1874

[mining agreement]

 

Douglas v. Erskine

Warden's Court, Palmerston
Connor, 7 March 1874
Source: Northern Territory Times and Gazette, 13 March 1874, p 3

 

LAW COURTS.

WARDEN'S COURT-PALMERSTON.

SATURDAY, MARCH 7.

(Before Mr. Connor, Chief Warden.)

DOUGLAS V. ERSKINE.

This was a suit between Bloomfield Douglas, miner, and Alexander Erskine, miner, brought to cancel an agreement made on November, 1873; and in consequence ot non-fulfilment of conditions on the part of Erskine.

Mr. W. V. Smith for the plaintiff.

Evidence on both sides was taken on the 6th, and on the 7th the Warden gave the following judgment:

"This case has come before me in consequence of Erskine having refused to accept of arbitration, which he had covenanted to do in case of dispute. In agreement sought to be cancelled I find two clauses, one binding Erskine to duly work and develop the the claims; other to endeavor to sell, or float, as it is termed, the said property. To the non-fulfilment of the last condition I attach no penalty. I am well aware that it may have been,-nay, was quite-impossible to do, and no time was fixed when such should have been done. To the working clause, as I term it, I refer my best consideration as to how far Erskine either did develop the claim or endeavor so to do. From the evidence and from Erskine's witness, it was apparent no genuine effort was made. A few men, four, I believe, were there, but they were not, paid men, and were only working in consideration of getting a certain portion of the interest held by Erskine, but finding he did not transfer or give them any satisfaction, they were discontented, and being left short of supplies, were useless to carry out the working of the claim. In fact, the the defendant might as well have sought to hold plaintiff to his agreement if he, Erskine, had merely kept up flags, trenches, and shepherded the ground. I therefore adjudge that the agreement is cancelled for non-fulfilment of the principal condition, that the claims be re-registered in the name of Bloomfield Douglas, solely, and that all right and title of Alexander Erskine absolutely ceases and determines in reference to said claim."

The Warden further observed-If it had been proved that prior to this case and since the agreement was executed, Erskine had legally transferred any portion of his share to other parties. I would have included them in the decision and not allowed them to be losers by his default, but no such thing has been shewn.

The defendant asked if he could be allowed to make a statement?

The Warden said the case was closed.

Defendant-Then I shall appeal: and I now say that I leave this Court owner of the property.

The Warden threatened to commit the defendant instantly.

Court adjourned.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School