MINING CASE IN THE SUPREME COURT.

Otago Witness, Issue 2250, 15 April 1897, Page 18

MINING CASE IN THE SUPREME COURT.

IN BANCO. Friday, Ai'tur, 9. (Before his Honor Mr Justice Williams.) SULLIVAN V. GUNTON. Special case seated for the opin T on of the court under " The Miuiug Act, 1891 " Mr Sim appeared ou behalf of tho complain- i ant, James Sullivar), miner, of Horteihoe Bend, and Mr Ha.ggif.fc on behalf of the defendants, John Gunton and George Gunton, miners, of Horseshoe Bend. On the 3rd December last the complainant instituted a suit in the Warden's Court at Roxburgh in which it was set out that he was the registered proprietor of a dam site at Je*Be Creek, Beaumont run, a water race of two heads of water from a creek in section 13, block XII, Beuger district, a water race of four heads of water from Jesse Creek, a tailrace, tmd a special claim of eight acres, beir.g section 6, bleck XII, Benger Survey District. Oa tho 290h July, 1295, the complainant and defendants entered into an agreement whereby the latter were to procure and erect a hydraulic lifting plant to work the complainant's spooial claim, and were to employ the complainant jib a wages man duriDg the erection of the plant, and also to work on this claim after the completion of the plant and pay him at the rate of 8s per day, in consideration of the complainant transferring two-thirds of I his right, title, and interest, free of enenm- | brance, in his special claim, water race, dam, | and plant, to the defendants, the transfer to be i executed as soon as the plant shou'd be on the I ground ; and it was further covenanted that as soon as gold was obtainc-d from the claim the first charge on the proceeds thereof nhould be the wages and actual cost of working the claim, aud that the balance should be paid over to the defendants until they had been repaid the full cost of the outlay in erecting and procuring the plant and putting it in working order. It want alleged by the complainant that owing to the differences which had since arisen between the parties as partners it was impossible to carry on the partnership businsps wrth advantage to the partners, and he claimed that a licensed holding, for which the defendants were applying, including the land adjoining the special claim, should be declared to ba the property of partnership, and that the partnership be declared to be dissolved, and that the court might direcb as to the division of the profits among the parlners. At ttie hearing of the complaint at Roxburgh — the 15;h J&uuary lait, the tallowing faces were proved : — (a) The complainautsand the defendants entered into partnership and carried on business as gold miners as front the 29th of July, 1895 ; (b) they continued to carry on euch business until the 15th of July, 1896, when the defendants excluded the complainant from any i share in the working and management of the partnership property, and by reason of this exclusion irreconcilable differences have arisen between them ; (c) the defendants carried on the partnership business up to aud exclusive of the day of hearing ; (d) on or about the 15th of July, 1896, the defendants tendered to tie complainant a man to work his share of the partnership property and the complainant declined to accept this man and tendered to the ■ defendants a competent man to work his share, j but they refused to accept this man, the other j man tendered by them — a nephew of theirs, and also a competent workman — having been already engaged and actually at work ; (c) the complainant whilst admitting that he was by reason of old age and increasing infirmities an ' incompetent workman w»b yet always ready and willing to put on a competent mvi to do his share, and on or about the 15th of July, 1896, sent to the defendants a competent man whom he had engaged at a* wage of 5s

per day, but they refused to accept this m»n; (/) the defendants duly carried out their p»rb of the H»id agreement as regards tho procuring and erection of machinery aud plant and putting the p.+rtnerehip property in working order, all of whioh has been paid for by the defendants with tho exception ot the complainant's wages, which hare not been fully paid ; (g) the complttinaufc hss never oxeouted the assignment provided for in the said agreement, nor hava the defendants ever tendered to or requested the complainant to execute such an assigument ; (h) either the mining privileges mentioned in; the said agreement or the titles thereto were at the date ot the hearing and for some timo previously in the hands oi & third party, subject to a lien for moueys due by the complainant, bub there was no evidence to nbow that the complainant was unable to discharge the said lied"; (t) the defendants have not been fully paid the cosh of procuring and ereoting the said dam, machinery, and plant, or of putting the laid partnership property in working order, and ft substantial sum still remains due to the defendants on this account ; (j) co proof was given of any notice of dissolution of partnerthip having been given to the defendants by the complainant prior to the laying of the complaint ; (fc) tho defendants did not at the hearing resist the complainant's prayer for a dissolution. Tho warden picposed to record a form of judgment and decree (set out in the special case), but being in doubt a« to the law reserved his decision, and stated this case. The questions for the opinion of tho Supreme Court wore : (a) Was the partnership a partnership at will, or a partner for any, and if any, what term ? (b) Has the partnership been dissolved b7 the service of -the summonses on. the defendants or by any other acts on conduct of the parties ? (c) If the partnership is atill subsisting is tho complainant entitled to a dissolution by reason of the conduct of the defendants ? (d) lif the partnership is still subsisting is the complairmut entitled to a desnlution until tho defendants have been repaid the whole coab of the procuring and erection of plant aud other outlay as aforesaid ? (c) If tha partnership bus been dissolved or if the complainant is entitled to a dissolution by reason o£ the conduct of fch<» defendants, will the coat aud oufc'ay mentioned in paragraph d ba a dabt due by the partnership to tho defendants ? (/) After payment of Ml debt* and liabilities of tdo partnership, in what proportions shou'd the balance of the partnership assets be distributed among3t the partners ? (r/) In tho proposed form of judgment and decree bad iv law in any, and. if io any, iv what respect ? Tho caae was argued at considerable length, after which His Honor said tho agreement was very obfeure, and he was afraid he would have to take time to consider.