The Western Law Reporter And Index Digest Volume 2

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1906 edition. Excerpt: ...therefore, if it could be held at all (and I think it could not) that the acceptance of the gold dust up to 29th May was a waiver, certainly nothing was done after that time to create a waiver of forfeiture. The non-obtaining of waivers or releases of lien from the workmen on the claim would be sufficient under the contract to forfeit the lay agreement, but if the work__had gone on in a proper manner I do not think that the plaintiff suffered any damage from the non-obtainment of these waivers, because 'before the issue of the writ all the parties entitled to hen had been satisfied. Upon all the grounds raised I think plaintiff is entitled to succeed. Plaintiff at the trial asked for an amendment, claiming the whole of the gold dust extracted from the claim after the notice of forfeiture was given and action begun. I do not think he is entitled to it all. I do not think he is en titled to any more than he would recover if defendants had been mere trespassers. They were overliolding tenants, perhaps, believing or asserting that their lay agreement had not been forfeited. They kept on working in la certain manner and extracted a certain quantity of gold dust. No greater penalty should be imposed upon them than if they were trespassers under a mistake of title, and the Courts here have repeatedly held that under such circumstances the trespasser is entitled to the cost of extracting the material. The parties themselves have fixed accurately enough for me what that cost is. Of course in allowing the defendants 75 per cent. I am allowing them what they themselves agreed upon, which would probably include some profit, but it is so infinitesimal in this case that it is hardly worth noticing, and the judgment will be as prayed for and...