COURT OF APPEAL.

Wellington Independent, Volume XXII, Issue 2589, 26 October 1867, Page 5

COURT OF APPEAL.

Thursday, October 24. [Before Mr Justice Johnston, Mr Ju3tice Gresson, Mr Justice Chapman, Mr Justico Richmond, and Acting Justice Moore.] The Court opened at 11 o'clock. THE VACATION. Mr Justice Johnston observed relative to a memorial presented from Canterbury, by Mr Justice Grrsson, as to tho time at which tho vacation should take place, that, as far as the Judges were at present informed— having taken the trouble to ascertain tho views of the profession— they would probably have materials before them ■ to come to some conclusion. The profession was not unanimous throughout the colony. Different views were entertained— tho question of climate having something to do with it ; but he trusted the Judges would be able to find some mean 3of reconciling those differences. MABSIIALT; V. ILKMING. The respondent brought an action in the Court below against the appellant for falsely and maliciously, nnd without reasonable or probable cause, obtaining a warrant for the apprehension of the respondent, on a charge of assault. The issue for trial was : — Is tho defendant (the appellant) guilty of the grievance on tho declaration mentioned. To which the jury found that he was, and assessed the damages at one shilling. The respondent on this signed judgment, and taxed his cost?, and immediately entered the judgment upon record. The appellant applied to the Court below for a-nd obtained a rule calling upon the respondent to show eauso why the judgment shonld not be set aside or amended by striking out Jill ouch parts as gavo tho respondent costs, on the ground that he had obtained less damages than forty shillings, and that tho jury had not found that the grievance was wilfui and malicious, as required by rulo 167. Tho rule camo on for argument before his Honor Mr Justice Grcsson, who discharged it with costs. And from this rule the appellant appealod; the question f><? the Court of Appeal being, whether the Court below ought to havo discharged the rule or made it absolute. Mr Travers submitted that the Court had not power to review the judgment after it had been entered on the record, and that the proper mode of proceeding was a writ of error. (Chilly's Arehbold's practice p. 571 ; Common Law Procedure Act : Banks v Newton, II Q.B. p. 340.) Mr Justice Johnston, in giving judgment, said : I am of opinion that tho preliminary point must prevail; 'and interesting and important as tho other question is, it is undesirable to invite any further argument, as we are not at liberty to express a judicial opinion at present. With regardto the point that the Court must hare some power OTcr the record to see that it correctly expresses the intention of tkc Court, it is answered by Mr Travers. Here we have an ultimate final entered up judgment, the entering being the act of the plaintiff, who introduces matter which, though not a matter of tho express finding of the jury, or the decision of tho Judge ho avers is a legal con3equenc.3 of the result of the trial ; it, therefore, appears on tho faco of the whole record, if he in wrong it is an error with respect to a substantial question of law; and as it is not pretended that there 13 any common law power of amendment of such matters as this, and English rulo is not available in this Court, we must give judgment on that point. With regard to the time when tho judgmont is on paper mid in fieri wo do not draw any analogy between the practice in England nnd ■STew Zealand, for we have no terms here. It is sufficient that we assume as a fact that all that is necessary by practice tomake judgmont complete has been done. Judgment for respondent, with costs. . QUEEN V. JAME3. At tho sitting of the Supremo Oouvt, at ' Nelson, John James was, on tho 16th November last tried for perjury, and was found guilty of having, on ! the Ist October last, committed the offence with j which lie was charged, on tho hearing of an information before Mr Poynter, the Resident Magistrate, against John Rowley, for having committed larceny from tho person of Henry Hugh Norn's, on which there was a summary conviction. The case was reserved by Mr Justice Johnston, and the question for the Court of Appeal was, whether the conviction could be supported. Mr Justico Johnston, in giving judgment, said that the view he took was this, that whatever might; hav<? been done by the resident; magistrate, although he might havu taken the proper precaution of having a fresh information laid, and convicting accordingly, ho chose to go on wiLh an information for tint which must bo an indictable offence. Tho oath taken before him was taken befora a person nob having competent jurisdiction, | nnd the conviction could not bo supported. CAMBUOX V. CAMERON. From tho case, it appeared that Donald Came- \ l-on, kto of Waiwolu, in tho Hutt Valley, died in j February, 18G0, having inado a will, devising his land and tenement near Pahau to his fivo sons as tenants in common, and not as joint tenants ; ho also bequeathed his sheep to them to be divided between them for their own use and benefit. The will was proved, ami the sons took possession of the land and the sheep which were depasturing on it, carrying on the occupation of sheep farmers, and dividing tho profits. Subsequently, they purchased other land as tenants in common, ] adjoining the land which had been bequeathed to them, to depasturo their sheep on, and in 1833 they purchased land at Whareama together, with a depasturing license over land adjoining, together with a flock of sheep ; and in 1865 they purchased 15,000 naves of land within the limits of the run, and at tho samo j time mortgaged it for an advance of ,-62,500, and j they carried on {.ho business of sheep farmers. ! In 1866 ona of the brother (Donald Cameron), j the eldest son, died intestate, leaving a widow, Isabella Cameron, the plaintiff, who was appointed his administratrix, and claimed that tho lands should be considered as part of the capital and effects of: tho co-partnership, and that her late husband's interest in them should be considered personal, and that tho defendants should account to her as administratrix. The question for the Court was whether all or any par!, and if any, what part of the lands held or purchased by the deceased Donald Comeron, tho son, jointly with his brothors, and occupied > by them, formed part of tho partnership property, and ought to be considered personal estate. Mr Brandon for the plaintiff; Mr Allen for the defendnnts. Mr Brandon submitted thab there wa3 a trading partnership without written articles, and quoted cases at length. (Jeffreys v Small, 1. Ternon--217. Thorndo.i v Dixon ; Brown's Ckincery \ Cases, 190. Darhy o Darby, 25 L. J., 371.) n Tins Court adjourned at a quarter to four * o'clock. r Friday, October 25. f Tho Court opened at 11 o'clock. p CAMKUOST AXD CAM EBON. j Mr Brandon resumed hia argument fov the l, plaintiff in this case, and in support of it read i cases at length. Holroyd v Holroyd, 28 L.J. p. 'i 902 j ex parte Bunk of JCmHand and others re r Shetfiehl, 30 LJ. p. 2,j ) Ho contended '- that tho lands purchase:! wove bought with • partner.- hip money, and woro used for 3 partnership purposes, and should be consie dored personalty ; ho also submitted that sheep y farming wa3 a fcrado '(Reynolds v Bowley, L.J., c June 22-id), and that he had shown that the c Camerons were partners, and not co-mvners. y Mr Allan, on behalf of the infant, heir at law, 1. contended that the land? whether denied, or •c subsequently obtained, never bedims personally. if Ho presumed Hint th» Court would not interfere n with the legal devolution of land, unless it became el apparent that tho owner intouded that the courso i)l of it should bo set aside ; and in order to do that, I- tho Coiu-t must be satisfied of the intention, and unless tho intention wa'3 matlc out, the suedes no. 1

would be allowed to take its natural course, and pass to the infant son. It was said that a partnership was created, nnd that according to the cases quoted the lands becamo personalty. With regard to the devised lands, assuming that thore was a partnership, which ho by no mean 3 admitted, it did not follow that the lands became part of the partnership concern, unless that was tho intention of U R parlies ; they might only bo co-owners— (Dixon on Partnership, pp 12.22.48 ; Lindletf on Partnership, vol 1, pp 30.5G9 ; Addison on Contracts, cd 5, p 639), In tho caso of Peacock v Peacock, 10 Vcsey, p 49, the father took his son into partnership in the business of law stationer, and it was held that tho mere fact of their trading together did not make tho house a part of tho partnership property. (Mayhevrv Merrick 18, L.J.C.P. p 179 j Burdon v Barcns, 31, L.J. Chqnceri), p 521 ; French v S tyring, L.J., vol 26, N.5.0.P., p 181). User was not sufficient to create a partnership, but the cases went further. (Morris v Barrett, 3, Young and Jervis, p. 38'];.) With regard to tho general question whether the lands devised or purchased could be considered partnership property, the learned counsel read severul cases at length to the Court, and commented on those which had boon quoted on the other side. (Brown v Ockshot, 24 Beavan, ;,254, Lake v Craddock, Peere v Williams 157.) He 'would also contend that sheep farming was not a trade. The Court adjourned shortly before 4 o clock till Monday next.