reau & Company and Fontaine & Smith on the other part, these latter undertook to erect for you at and upon your estate called ' Hewetson,' situate at "Trois Ilots' in the district of Flacq 1o. An apparatus called 'appareil à triple effet'; 20. A sugar mill for crushing bagasse; 30. An apparatus invented by Dr Icery, for ameliorating the fabrication of sugar; which apparatus and machinery were to be completed in the manner mentioned in such private instrument, and were to be paid for also in the manner therein set forth";

"Whereas they, the said Paturau and Company and Fontaine and Smith have errected all the said machinery and apparatus as set forth in the said agreement; and it worked very satisfactorily, as you very well know";

"Whereas, notwithstanding this, you have, on the seventeenth instant, caused a Notice to be served by the usher Julius Clair, whereby you informed the said A. Paturau and Company and Fontaine and Smith that the work they had undertaken was not completed, you summoned them to finish it within a delay of twenty four hours, and you make certain reservations with a view of entering subsequently an Action in damages":

"You are hereby informed that the said A. Paturau and Company and Fontaine and Smith do hereby deny and protest against the several allegations and reservations contained in the above Notice, and they hereby declare that, prior to the date of the service of the said Notice, all the machinery and apparatus they agreed to put up for you had been so put up, and was actually working in an efficient manner, and they further declare that since then it has so continued to work efficiently and properly, and when the time for payment comes, they will enforce such payment by all legal ways and means."

Upon this Notice, when handed to him, the following declaration was written by He

wetson:

"The allegations contained in the above Notice are untrue."

"lo. The "appareil à triple effet " never worked before the 17th instant, i.e. that it could never evaporate juice for inaking sugar. It has commenced working on the twentyfirst instant but such working is not satisfactory, and is not what the contractors have agreed to give; and the 'appareil' itself and the machinery connected with it are far from being complete, or made, in a manner to render them acceptable under the agreement mentioned in the above Notice."

"The whole piping and copper works, in

all the machinery in the said sugar house, are so roughly and so improperly made that no coppersmith in Europe would allow such works to leave his workshops. It is all patchwork and cannot have long duration."

"20. Not only the "appareil à triple effet" does not work properly under the agreement, but it will never do so on account of the insufficiency of defecators, of "décanteurs " (decanters), and other recipients and accessories necessary to make good, white, sugar. The vacuum pans have been rendered much slower in their work and the piping and other detail thro' the sugar house are defective."

The prejudice already caused to me is enormous; it is increasing every day. I am compelled, in order to save what can be made of my crop, to employ the machinery now on my sugar estate; but, I will do so under the most express reservation of claiming damages for the loss caused or to be caused to me, and without, in any way, accepting any part of the work made under the agreement aforesaid, as being a fair and reasonable execution of the said agreement."

"As to payment, I have been imprudent enough, relying upon the contract aforesaid, to pay in advance a large sum to accomodate the contractors; which sum I reserve to myself the right of claiming back in due time.”

The money paid in advance, here referred to, was a sum of £ 2,000 which Hewetson had paid to Paturau & ors., to account of the price of the machinery, on the 31st May 1869.

On the 30th August, Hewetson served the following Notice on Paturau & ors. :

"With reference 1o. to a Notice served upon you at the request of William Hewetson, of Government street, Port Louis, proprietor, on the seventeenth day of August in the present year;

20. To a Notice served at your request on the said William Hewetson, by Usher Villemont on the 23rd day of August aforesaid, and to the answer endorsed by the said Hewetson on the last mentioned Notices: " you are hereby informed that, as it was stated, and shewn to A. Paturau, one of you, on the twenty fifth instant in the sugar house of Hewetson Estate at "Trois Ilots," the working of the machinery on the said Estate, after a few day's experience, is so improper and unsatisfactory, that it is not possible, even in working day and night to obtain a half of the quantity of sugar which the said machinery could have made if you had executed your contract." The vacuum pans can do only in eighteen or

twenty hours the work that they ought to do in six or seven hours, and cannot work simultaneously with the " appareil à triple effet."

"Besides the other defects that have been repeatedly indicated to you, it is now clear that the air pumps are insufficient for the proper working of the vacuum pans and 66 appareil à triple effet," or at all events have not -been properly put up." The donkey pump for the cane juice from the defecators is quite insufficient, and cannot do half the work it has to do; and as no spare pump has been placed by you in case the said donkey pump break down, the whole work of the Sugar house will be paralysed. You are therefore required, within twenty four hours after the service of this Notice upon you, to take all necessary steps to put at once the sugar machinery of the said Estate "Hewetson" in proper working order, according to the agreement made between partics."

"And take notice that you are made responsible for all the prejudice suffered or to be suffered, and that in case you do not place at once the said Sugar Machinery in proper working order, the said William Hewetson will, at your risk, peril and expense, call for tenders to have the work done by some other Engineers."

"And take further notice that, in case you wish to place men of your own choice to conduct the machinery aforesaid, the said men will be permitted to work upon your responsibility, and the whole machinery will be entirely placed in your own hands. Under all legal reservations."

The next day viz. the 31st August 1869, the Declaration in the first of the two Actions in which we are now giving Judgment (the Declaratur) was served on Hewetson by Paturau and others. It will not be amiss to recite this and the other pleadings in both suits pretty fully. The Declaration in the Declaratur sets forth the original agreement of 13th April 1869 and then proceeds:

"Whereas the said Plaintiffs duly executed and performed all things on their part to be executed and performed, and they aver that the apparatus and machinery which they had undertaken to furnish, adapt and put up, were duly completed by them and were actually delivered over by the Plaintiffs to the Defendant who could have made and who did make thirty thousand pounds weight of sugar, as agreed upon."

"Whereas the said Defendant, well knowing the premises, yet, with a view of escaping hereafter the payment of what was and is due by him under the aforesaid agreement,

did, by a certain Notice dated the sixteenth day of August instant, signed by himself, and served upon Plaintiffs by the usher Julius Clair, on the seventeenth of the same month, deny that the Plaintiffs had executed the agreement aforesaid.

The tenor of the formal Notices and answers to Notices to which we have had occasion to allude already, is then given, and the Declaration proceeds as follows: "Whereas the statements contained in the said Defendant's Declaration (written upon the Notice of 23rd August) and in his aforesaid two Notices, are inaccurate and untrue, and the Plaintiff say that if the machinery of "Hewetson

es

tate does not work properly, it is through no fault in the machinery by them put up and adapted."

"Whereas the facts aforesaid constitute disputes and differences between parties as to whether or not the work which the Plaintiffs contracted to do and perform has been properly done or not."

"Whereas the Plaintiffs are only entitled to recover the first instalment of the account due to them after the expiration of the crop now being made on the said Estate "Hewetson," that is about five months from the present date, at which time it may be difficult for them to establish the fact that they had duly executed and performed all the things they were bound to do under the said agreement, and the machinery and apparatus furnished, adapted and put up by them work properly and satisfactorily so as to produce the stipulated amount of sugar within the time agreed upon, as in fact and in truth it could do when delivered."

"Whereas, mcreover, the said Plaintiffs are quite willing to remedy any such trifling defects that may be shown to exist in the said machinery and apparatus, although they do not admit that, at the time of delivery, any such defects existed at all or exist to such an extent as to render the work in any way insufficient or unfit for the use it is intended for."

"Whereas it is therefore more important to the Plaintiffs to have are gular Judgment from the Court declaring:

10. That they, the said Plaintiffs, have duly executed and performed all things on their part to be done and performed under the aforesaid agreement.-20. That the apparatus and machinery which they had undertaken to furnish, crect and adapt for the Defendant, have been duly delivered by them, and were, when so delivered, in good working order, within the true intent and meaning of the aforesaid agreement between parties:

(10.) "That the Plaintiffs have not performed in a proper manner and according to the truc intent and meaning of the agreement aforesaid, any part of the several things to be done and performed by them, under the said agreement."

(20.) "That all the apparatus and machinery which they had undertaken to furnish, erect and adapt for the Defendant, have never been completed and delivered to the Defendant, and that the portion delivered was delivered on or about the 21st August last, is not yet completed, and was not at the time of delivery in good working order within the true intent and meaning of the said agreement and was therefore never accepted by Defend

ant.

(30.) "That the Plaintiffs have never attempted to exercise their alleged right to remedy any defects existing in the said apparatus and machinery.

(40.) That the said machinery has never worked properly and satisfactorily, so as to produce regularly and consecutively the quantity of sugar which it ought and should have produced, in case the agreement aforesaid had been properly executed, and that not one of the results promised and guaranteed by the Plaintiffs has been obtained.

(40.) " And the defendant further says that, on or about the 31st May 1869, for the convenience and at the request of the Plaintiffs and without otherwise derogating to the agreement aforesaid, the said Defendant did advance and pay to the said Plaintiffs a sum of ten thousand dollars on account of the price of the works stipulated in the agreement aforesaid, and that the said agreement having not been executed by Plaintiffs, the Plaintiffs are bound to refund to the said Defendant the sum of ten thousand dollars, with interest and costs."

In the meantime on the 31st August Paturau and others applied to the Judge at Chambers, Mr. Justice Bestel, for the nomination of skilled and competent persons (experts) to make a survey and appraisement of the work done by them pursuant to the ment of the 13th April 1869.

agree

Experts were accordingly named with full power to examine the said apparatus and machinery, and to cause sugar to be made therein; to test its sufficiency to produce the stipulated quantity of sugar within the stipulated time; and in any other way to try and test the said machinery as to the said appraisers or skilled persons may seem necessary to ascertain whether the work has been properly done or not, and who will report the result of their examination and of the survey to the Court, setting forth specially whether or not the defects, if any, are of sufficent importance to prevent the proper working of the machinery and apparatus.'

The experts named were Henry Portal, of the District of Grand Port, planter; James Wiehe, assistant Manager of the Ceylon Company, Limited, and Hugh Hanning, of the District of Rivière du Rempart, Engineer. They were ordered to make a provisional Report; parties entitled to call and examine the

"At the later date we went upon the Estate "Hewetson" situated at "Trois Ilots in the district of Flacq, where we saw the Manager of that Estate, Mr. Albert Michel, the agent of Mr. Hewetson, and also the three Plaintiffs, namely: Messrs. André Paturau, Benoit Fontaine, and John Smith, accompanied by Mr. Cologon, mechanical engineer in the Island of "Réunion," at present in Mauritius, and assisted by Mr John Henry Ackroyd their Attorney, who handed over to us: 1o. the Judges' Order, in virtue of which we were appointed; 20. one of the originals of the agreement passed between the parties; and 30. the summons served on the defendant to attend the inspection (Expertise)."

"Therefore, at the said place and hour we proceeded to the examination of the machinery and apparatus mentioned in the said agreement, and we agreed to begin the next morning, at four o'clock, to try them by making Sugar in them; and on, the Saturday eleventh September instant, in presence of the plaintiffs, of their Attorney, of Mr. Cologon and of Mr. Michel the manager of the Estate, and of the defendant, we began our operations at half past four in the morning; but in the afternoon we were obliged to discontinue them on account of an accident which happened, by the act of an Indian, to one of the injecting water cocks of the boiler. Not being able in consequence to complete the experiment begun, it is not necessary to relate the details thereof."

"In consequence, we adjourn our operations of inspection ("d'expertise ") until Tuesday fourteenth instant.'

"We must here mention that Mr. Hewet

"The sugar machinery was put in motion at three o'clock and thirty minutes in the morning, under the direction of Messrs. Smith & Fontaine, and we ascertained that there was, before beginning work, an advance of "clairce" (boiled juice) made the day before of 4.295 gallons at 25 "Beaumé." The working in the whole of the Sugar house was continued up to 5 minutes to 8 at night; nevertheless it was necesssary to stop every thing at ten minutes past 9 in the morning from the want of water in the boilers. The Donkey pump not taking up the condensed water at a high temperature, it became necessary, in order to remedy this inconvenience, to cool the condensed water and also to work the feeding pump of the large engine with cold

water."

"The work was resumed in full swing at 25 minutes to ten, but at 10 minutes past 10, whilst we were at breakfast, according to the story of a mechanical workman employed in the sugar house of Mr. Perron, confirined by. Mr. Fontaine, it was again necessary to stop the work on account of a remontage (rising up) of water which took place in the boilers. After having again pumped water and waited for a pression of 4 atmospheres, the work was again resumed at six minutes past eleven, and continued up to 5 minutes to eight o'clock at night, without interruption, making in all a length of time of sixteen hours and twenty five minutes and a stoppage of one hour and twenty five minutes, leaving at the moment in the cisterns an advance of only 3,361 gallons of "clairce" (boiled juice) brought by calculation to, 25 Beaumé. The result obtained was about and 314 batches (cuites) of sugar of the first jet (the vacuum pan) and one "cuite" of first syrup.

"The cooling of this sugar being necessary, we were obliged to wait until a second meeting of the reporters. (experts) to determine the weight after the " turbinage ": which result is established further on in this report."

"On Thursday, sixteenth instant, we, the two undersigned Reporters (experts,) went

"The undersigned deposit in Court a sealed sample of the "vesou" sugar of each cooler, as well as the Syrup Sugar, in order that the Court may judge for itself of the quality manufactured. In conclusion, we, the three "experts" (surveyors) undersigned, having given all our attention to the working of the machinery during their operation, have the honor to submit to the Court the result of our appreciation, and to that end we propose to follow the order of the deed under private signatures (sousseing-privé)."

sing "vesou," com

Art 1st of the The apparatus "à triple Contract dated 13th effet" by itself, appears to April 1869.-An ap- work well; its workmanparatus for vapori- ship could not be better monly called appa- executed in this colony, it tus "à triple effet," would be difficult to estaand all the accesso- blish a comparison with the ries necessary, such as airs-pumps, de- workmanship of the firm of F. F. Cail & Co., of Paris, for we have not examined the interior of those apparatus. As to the result in the amount of work done, it appears to us that those apparatus fulfil the conditions of the contract.'

fecators.

"These vessels are not provided with refuse cocks, which actually renders this operation very long."

"At its exit after defecation the juice is conducted into a reservoir, and then pumped up by a donkey pump into the decanters: this pump is sufficient for the work when worked rapidly, but the least accident would have for its result the stoppage of the whole sugar machinery."

"We are of opinion that the decanters are badly placed, and that they would have been better en contre-bas (below in front of) the defecators."