DISTRICT COURT, CLYDE.

Dunstan Times, Issue 292, 29 November 1867, Page 3

DISTRICT COURT, CLYDE.

Wednesday, 20th November. (Before His Honor Mr. Wilson Grey, District Judge.) Smith v. O'Donoughotie Mr. J. C. Chappie f<ir appelants. The respondent appeared in person. The arguments in this case appeared in our last issu". The judgment of liis Honor was as folIws :—"The true question in dispute was no*, as the words of the complainant m ght suggest, a question of misrepresentation, but a question of mutual right' of partner.-, and upon this question the contest was conducted, both before the Warden and before Lim. One of five working partners in an extended claim had absented himself, leav- j in" his share unoccupied, and, after a lapse of some time—not a very considerable time —he came bach, ami demanded that he be placed in possession of it, the other partners having in the meantime worked the claim at their own cost. During his absence his partners had done what, under our rules, is equivalent to " jumping" his share. They had informed the Warden that this share had been left unwoiked, obtained his authority for taking possession of it, and procured themselves to be registered in tli ir partner's place, 11 is a recognised principle of law in gold-mining that one partner cannot "jump"'another partner's share. This, however, does not mean absolutely that-he cannot jump it ; but, that he cannot, by jumping it, clothe himself wi hj such a title as will relieve himself from his contract of partnership. If, apart from the jumping, the partnership was still subsisting, it continues to subsist, notwithstanding the jumping. In this case, therefore, the partnership was not terminated by the more procuring of the registration. Was it otherwise terminated? ' Now, if a partner is in arrear with unpaid calls, or otherwise fails to meet the liabilities of his share, the other partners cannot on this account forfeit his share, unless specially empowered to do so by the partnership agreement. If the partner is to be got rid of against his will' it can be done only by a dissolution ; but, though a partner cannot be thus put out, ' he may himself go out, abandoning his share, or he may refuse to take the risks of the adventure, and may lend his partners to believe that he has abandoned, dishonestly intending.to-return afterwords, and, if profits are realised by their risk, set up a claim to a share in them. This is justly treated as equivalent to an -abandonment. The .question here is—Did this planting in either of these senses, abandon his share ? His Honor then beiefly reviewed the evidence; and adverted to the reasons given by the Warden for his decision. .He said the Warden seemed to have conceived very clearly, the question of law that was in. volved ; Jjut there was great conflict of evidence. The conclusion the Warden had come to, as to the facts, was one at which a rea enable mind-might very well arrive ; iit 'the facts in dispute were mixed up with matters of law, that possibly lacLnot" l)cen quite clear at all stages of the trial;'.. He thought, on tie""whole,:.therfustiee of t' e case would be served by sending it to be re-heard by the Court below, suggesting to f hj Warden ipichil. attention Jo. the following questions : "I. Did dxiC'idant(Jav. Smith), .on, cr rl > ir the 41L Jv'y, If (7, <r at any tirte 1 ctw'cii flat -zrA the ?sth of Jul;;, absent

himself from the working of his share with the intention of abandoning it ? "2, Bid appellant, when he returned to the claim and met hi 3 partners, on or about the 25th of July, 18G7, know that it was thel'- intention at that time, to exclude him from his share, and, if he did know it, did he acquiesce in such exclusion, or did he dissent from it ?

'"3. Bid appellant, at any time know, ingly, lead his partners to believe that he had abandoned his share, d ing so to get rid of the working of his share, or for any other, !and for what purpose '!"

If any of these issues were found against tie plaintiff, it was a case of abandonment on his part, and the complaint should be dismissed. Otherwise he was entitled to be still considered as a partner, subject to such order as the equity of the case mieht rerequire. His Honor then ordered the case to be sent back for re-hearins at the Warden's Court, Roxburgh, with his judgment appended.