COURT OF APPEAL.

Wellington Independent, Volume XXII, Issue 2592, 2 November 1867, Page 5

COURT OF APPEAL.

Thursday, October 31

[Before Mr Justice Johnston, Mr Justice Gresson, Mr Justico Chapman, Mr Justice Richmond, and Mr Acting Justico Moore.] The Court opened ab II o'clock. CAMERON AND CAMERON.

Tho arguments in this caso were resumed. Mr Allan read the additions to this caso which had been agreed on relative to the accounts and transactions of the brothers. Tho learned counsel then proceeded fco contend that user did not necessarily create a partnership, (Lindley on Partnership, 553, Phillips and Phillips), and that if acquired property was to become personalty ifc must be bought wifch partnership funds for partnership purposes, and applied to those purposes, referring to and commenting on eases already quoted. These threo elements must be present. Ho wsuld now endeavor to show that the facts of this case came very much within the easos which showed that fche land was not to be considered as partnership property. With regard to tlio devised lands, it was true thafc the brothers became partners by their transactions in the profits aud expenses, but not in the lands, (Dixon on Partnership, p. 23) ; although there was no partnership contemplated, and there was nothing in the few act.ouul.3 which were kept lo show that the lands were considered as partnership property. (Mayhew and Herrick 7, 0.8., 229. Peacoeko and Peacockc, 16 Vesey. Burdon and Barcus, 22, LJ. JUixon on Partnership, p 63, case of Bone and Pollard.) With regard to the land at Pahaua it. was purchased with money which the brothers contributed oub of their separate funds ; it could not be said that thafc was partnership money.

Mr Justice Johnston -. Ifc might bo said that ifc was a fresh subscription to capital. Mr Justice Moore referred to Jackson and Jackson, 9 Vesey, 951. Mr Allan submitted thafc thafc was a very different case from the present, and cited tho caso of Morris and Burretfc as analogous to this case. He would contend that tho devise alone would not make the land partnership properly, and that thero was no eridenco of any intention to that effect, and that the devised land would not necessarily follow the purchased lnnd ; but ho would argue that tho land purchased afc Pahaua was not partnership property, for it was not bought with partnership money and for partnership purposos, and applied to those purposes. Mr Justice Chapman expressed an opinion that ifc was nofc necessary thafc all tho threo elements should be present.

Mr Allan said that scarcely any of theso elements prevailed hero ; it would not appear that the Pahaua land was bought with partnership money, but out of tho separate funds of tho brothers ; nor did ifc appear fchafc thero was any subscription of capital. Mr Justice Richmond said thafc fche land was bought for the purpose of depasturing sheep, in which it was admitted that there was a partnership ; and it might bo said that the land was ancillary to that purpose. Mr Allan said that if the land was ancillary to that purpose, ifc was nofc eufficieut. (Peacocke and Peacocke, 16 Vesey ; Mayhew and Herrick ; Burdon and Barcus.) The land might have been used for other purposes if it was thought desirable, and could not be said to be entirely subsidiary to the purpose of the business, nnd there was nothing to show thafc capital had been expenned on the land. He would therefore contend thafc fcho acquired land should follow fche devised land, and not be considered partnership property ; and he would also submit that fche fact thafc fche acquired laud afc Pahaua adjoined the devised land, and was much larger in extent, should nofc affect the question. The land at Wharehama purchased from Mr Telford was bought in a similar manner: except thafc only a portion of the purchaso money was actually paid by the brothers with their own money in equal shares ; and they obtained nn advance from Mr Pearce for tlio remainder ; for which they gave a joint promissory note; Mr Pearco then became their agent ; and ifc was in favor of his client that Mr Pearce distinguished that transaction from his other transactions as their agent in respect to wool sales. The description of the brothers in the conveyance from Telford was also noticeable ; for they wore described as living in different places, and not as partners carrying on business in a certain place. In tho case of the laud purchased from tho Crown, within tho limits of the run, there was £2900 advanced on mortgage by Mr Pearce, but there was nothing in the accounts fco show that it was a partnership affair ; although the advances of fcho brothers wero unequal ; and with regard to tho use of the land tho same arguments would apply in this case as in the caso of tho land afc Pahaua. The last point raised by Mr Allan was, that sheep farming was not a trade (Randall v Randall7, Sim.) In conclusion the learned couiuel said that the caso was one of great difficulty and importance to the colony, and it was highly desirablo that the decision of Ihc Court should bo given on it.

Mr Brandon, in reply, said that the Camerons hold tho land in common, and were partners, and not co-owners, for no one of them could have sold his interest without interfering with the carrying on of the concern. In sheep' farming the sheep increased, as Mr Justice Chapman had said, bufc the land did not stretch ; more land would then have to bo acquired ; ancl, as the floating capital required to carry on the business of sheep farming was not largo, money advanced for thafc purpose might be considered contribution to capital. The acquired land had become partnership property, because the conduct of tho brothers had shown that it was entirely subsidiary to their business, aud ib was bought with partnership money ; and if tho devised land should not otherwise bo considered partnership property, ib would acquire that character thre ugh being absorbed in tho larger extent of purchased -land adjoining. Mr Brandon then referred to cases previously quoted and commented on them. Tho promissory note given by tho brothers jointly and severally showed that they were partners; and tho description in tho conveyance was of littlo moment. Mr Brandon then argued that the accounts relative to the working of tho station and to tho land, were kept separate for the sake of convenience, and that there was ample evidonce in them that the brothers were partners, not only to the world but inter se. lb was admitted thafc tho land was bought for sheep farming purposes, and the amount of capital expended in the land in proportion lo its size, did not affect the question : tho illustrations, therefore, of soap manufactories and bvowericß did not avail. Mr Brandon then contended that sheep fanning was a trade, for tho labor and capital of tho sheep farmer was expended in growing wool, with tho object of selling ifc. Tho Court took time to consider its judgment. Tho Court adjourned at 5 o'clock.