SUPREME COURT. NIMMO V. PETERS. COMMON LAW. Court. If enquiry involving great expense had been carried on, or if enquiry was unnecessary, perhaps the Court might interfere; but what has taken place here was of a very simple nature, and might have been done in a few hours, because the bill and answer seems to confess that there was a large amount due. Therefore I think the motion to take the petition off the file must be dismissed, and with costs. GWYNNE, J., WEARING, J.] Rehearing granted. [COMMON LAW. 22 MARCH, 1870. NIMMO V. PETERS. LOCAL COURTS.-Jurisdiction-Prohibition. In a contract for certain work at £150, to be performed in two weeks from date, it was provided that payments of £15 a week should be made during the progress of the work. On action in the Local Court of Adelaide for £60, balance due on the contract, it appeared that six weekly payments had been made, and on this it was contended by the defendants that the Court had no jurisdiction, because the claim had not been reduced by payment to an amount within its jurisdiction. On motion for prohibition, Held-That the amount had been reduced by payment, and the Court had jurisdiction. THE action was brought for £60, balance of a building contract for £150, which was to be paid in weekly instalments of £15, the work to be finished within a fortnight. The work had not been completed in a fortnight, but six weekly payments had been made. On the part of the defendant, it was contended that the sum claimed was above the jurisdiction of the Local Court, and the question was whether the £90 was part payment on account of the contract so as to reduce the amount within the jurisdiction of the Court. A rule nisi for a writ of prohibition having been obtained, SUPREME COURT. JONES V. JONES. EQUITY. Ingleby and J. Downer showed cause, contending that the £90 was either payment or reduction, in either of which cases the Court had jurisdiction—if payment, under the very words of the Local Courts Act; and if reduction, then the only amount to which the plaintiff became entitled when he finished his work was the £60 claimed; and on action for the full amount £150, the defendant could have proved the reduction under the general issue, and without plea of payment Day v. Sollett, 4 Burrowes, 2133 Ricardo v. Maidenhead Company, 27 L.J., N.C., 75 Chitty on Pleading, 568. Stow, Q.C., in reply, 'contended that the £90 received by the defendant were not payments but matter of set-off, and therefore did not reduce the claim so as to give the Local Court jurisdiction. He cited Avard v. Rhodes, 8 Ex., 317 Isaacs v. Wylde, 7 Ex., 163 Woodhams v. Newman, 7 C.B., 664. Per Curiam.-The £90 was payment, and the Court had jurisdiction. Rule discharged with costs. GWYNNE, J., PRIMARY JUDGE.] 8 APRIL, 1870. JONES V. JONES. [EQUITY. Where land had been conveyed to partners as tenants in common, but had been paid for out of partnership moneys and used for partnership purposes, it was held to be partnership property and treated as personalty. THIS was a suit for the purpose of deciding a question relative to the title of a portion of the estate of the late Thomas Jones, who, SUPREME COURT. JONES V. JONES. EQUITY. with his brother Andrew Jones, for some years carried on business as general dealer. Proceedings were originally commenced by summons, but His Honor thought it was necessary there should be a bill for him to decide the rights of the parties. The case came on upon bill and answers of the defendants-Andrew Jones, Elizabeth Elliot, and Andrew Thomas Jones. Thomas Jones died in February, 1862, and letters of administration were granted to his wife, now Mrs. Elliot, on the 25th July, 1862. The litigation commenced by a summons against the personal representative, upon which the usual accounts were ordered to be taken on the 2nd of October, 1863. The infant heir-at-law, Andrew Thomas Jones, filed a bill claiming the real estate that belonged to his father, and prayed that it might be ascertained to what freehold lands he was entitled, and accounts taken of the rents and profits attaching thereto. A reference to the Master was ordered on the 15th December, 1864; the Master reported as to the rights of the infant heir-at-law on the 8th of March, 1865. The only question was with regard to several lots of land, being portion of Town Acres (Adelaide), 177, Waymouth street; 194, corner of Waymouth and Morphett streets, on which is erected shop aud store; and 134, Currie street; besides one or two allotments of less value at Port Adelaide. The prayer of the bill was that the said shop and premises, and other land might be declared to form part of the assets of the late partnership, and disposed of in due course as part of the personal estate of Thomas Jones, deceased. GWYNNE, J., said he supposed the question would be with regard to the jus accrescendi, as between the personal representative of the deceased and the heir-at-law, and as to what was partnership property and what was not. Belt for plaintiffs. Lindley's Law of Partnership, 565 Dale v. Hamilton, 5 Ha., 369 show, that although the property is limited to partners as tenants SUPREME COURT. JONES V. JONES. EQUITY. partnership purposes it will be He read portions of the answers in common, still if it be used for treated as partnership property. on which he relied as showing that the property in Waymouth street had been purchased with partnership funds and used for partnership purposes. Fenn for infant heir-at-law. The land may be divided into two classes; that which had been conveyed to Thomas Jones and Andrew Jones as tenants in common, and that which was vested in them as joint tenants. Firstly, the lands vested in them as tenants in common, were not affected by the partnership; and secondly, the purchase of joint property for the partnership did not affect the nature of the estate. The lands being conveyed to the Jones's as tenants in common, one being dead the land would vest in Andrew Jones and Andrew Thomas Jones, by operation of law. The only question was whether there was anything dehors the deed to show that the land should vest otherwise. The question was not whether there was not a jus accrescendi, but whether this was real or personal estate. In the case of Darby v. Darby, the subject-matter was a joint adventure in land and therefore had no application; and Dale v. Hamilton referred to leasehold, and the decision proceeded almost entirely on the Statute of Frauds. Therefore neither of them bore upon the present issue. See Thornton v. Dixon, 3 Bro. C.C., 199 Steward v. Blakeway, L.R., 6 E., 479. It is said in Lindley, 569:-"Where land belongs to all the partners as tenants in common but not as partners, and the land is used by them for partnership purposes, but is nevertheless intended to remain vested in them as tenants in common, and not to form part of the assets of the firm, the share of each partner will be real and not personal estate." GWYNNE, J., apprehended that decision was on the ground that the land was not auxiliary to the trade; but where land was bought for the purposes of joint trade and was used as such, it was naturally to be concluded that it was auxiliary to the trade, SUPREME COURT. ENGLAND AND OTHERS v. } EQUITY. and then he thought the limitation would be quite immaterial. Allotments portions of Town Acres 177, 194, having been used for the purposes of the business were partnership property, and must be treated as personalty; the allotment on Acre 134, in Currie street, vested in the heir-at-law. GWYNNE, J., PRIMARY JUDGE.] 4 AND 25 APRIL, 1870. [EQUITY. ENGLAND AND OTHERS V. HAYNES AND OTHERS (LATE COULTHARD). PRIMARY JUDGE.-Rehearing. The Primary Judge has power to grant a rehearing, whether decree In an administration suit the executor claimed to be a creditor on the Held. Firstly-7hat the affidavit of F. in support of the debt was Secondly-That the will was not sufficiently proved; the proper evidence being the probate under Act 6 of 1860, s. 32, or the production of the will by the officer in whose custody it would be. THIS was an administration suit, a bill having been filed by Mr. John England, the executor of the decased, Wm. Robson Coulthard, who claimed to be a creditor on the estate against the general devisee. It had been heard before the three Judges on the |