MINING PARTNERSHIPS.

Tuapeka Times, Volume XX, Issue 1414, 21 December 1887, Page 3

MINING PARTNERSHIPS.

At the last sitting of the District Court at Oamaru, before Judge Broad, the appeal case of Gallagher and another (appellants) v. Tatty and others (respondents) was heard. This was a case stated on appeal from a decision of Mr Warden Wood, sitting' at St. Bathans, and arose out of a suit praying for a decree for a. dissolution of a mining partnership, for the appointment of a receiver, and for a sale of the partnership property. At the hearing before the Warden, it was ad. mitted by counsel for the respective parties that the partnership was a partnership at will. No notice of dissolution had been served on any of the parties prior to the proceedings being taken iv the court below, and, although several of the partners had mortgaged their shares, and the names of the mortgagees bad been inserted iv a grant of a special claim forming part of the partnership property, the mortgagees had not been made parties to the proceedings. Mr M'Carthy for the respondents (defendants below), at the close of the appellant's case, raised the following points :— (1) That; inasmuch as the appellants had not, prior to the action, served notices of dissolution on their co-partners, it was competent for the Warden to refuse to decree a dissolution ; and (2) that the court could not in this particular case decree a sole of the partnership assets, as the mortgagees had not been made parties to the action.

Mr Kerr having replied on Dehalf of appellant*, The Warden refused a dissolution and dismissed the complaint, observing in the course of his judgment " that the defendants having assisted for the last 20 years to bri^g up the St. Bathans channel to work the ground, and that channel being within a year of completion, and the defendants being only working men and not capitalists, and the complainants in respect of the claim being men of' yesterday, it would he & kordaliip bo the defendants to he forced to a sale." Prom this decision the appellants appealed. The following is a copy of Judge Broad's judgment, for which we are indebted to the "North Otago Times":— His Honour said: It seems to be taken for granted, both in the case stated and in the arguments, that all mining partnerships are terminable at will. This is not necessarily so, because there may be (and sometimes is) an agreement between the parties, either expressed or to be implied from the circumstances, that the partnership is to continue till the claim is worked out or proved to be not worth working. The terms of this partnership are not stated in the case, but assuming they were such as would make it a partnership terminable at will, it is difficult to understand on what principle a decree as prayed could be refused. Unfortunately, as the rules as to appeals stood, the present case could not be referred back to the court below to be worked out according to tne principles of law governing the matter as corrected by the court above, otherwise such would have been the best way of disposing of the present appeal. The Warden does not, however, appear to have decided any point of law at all. The reasons for his decision as set out in the case refer only to what may be termed sentimental grounds for refusing the dissolution. A Warden is not at liberty to disregard the rules of law and equity and to give such, a decision as may seem right to his own conscience. There was in one of our old Goldfields Acts a provision of that sort, but it was repealed, and has never been re-enacted, because doubtless it was found such a power left the title to mining property vague und uncertain; the tenure instead of depending on ascertainable legal rights, resting, in the event of disputes, on the view the Warden might happen to take of the merits of each case. It seems to me the appellants' best course in this case would have been to have brought it to this court as a general appeal upon both law and fact, when there would bare been a re-hearing of the whole matter and an i a.m>i?opwafce decisian gives*. On the second point the mortgagees were, I think, looking at the nature of the property and the title, clearly interested and entitled to notice, but none was given them. On this ground, if on no other, the Warden wna justified in dismissing the summons. The appeal is dismissed, with costs (£10).