SUPREME COURT.

Evening Star, Issue 2864, 24 April 1872, Page 2

SUPREME COURT.

IN BANCO. (Before Mr Justice Chapman.) This Day. Catomore (trustee in Fuller’s estate) v. MurrajL In this case the decision of the Court was asked as to whether the Registrar, in taking an account of the partnership transactions, ought not to include profits made after the date of the dissolution, by operation of law, of the partnership between the parties. Fuller and Murray were, at the time of Fuller’s bankruptcy, joint owners of and partners iu the business of a kerosene bond, having a yearly license, which, at the date of dissolution, had nine mouths to run. After Fuller’s bankruptcy, Murray carried on the business under the same license, which was renewed from time to time.

His Honor, in giving judgment, said : Although Equity Courts bad not laid down any unvarying rule, it was not difficult to extract from the cases cited on both sides a very intelligible principle, which was, that where the surviving or cent nuing partner carries on the business and makes use of property which belongs to both, he must, in the absence of express stipulation or other modifying ciroum.itanc'S, account for subsequent profits, to the making of which the joint property has contributed, or has been instrument d .■•■fter reviewing the cases cited, the learned judge continued : —The principle running through them all was clear enough. Had anything corporeal or incorporeal to which the outgoing partner was entitled, contributed to the gains ? If so, he or his personal representative was entitled to share in the profits so made. The kerosene store and the necessary license were the property of both partners, and the chief instruments of profit. There might have been some connection, but that could not have been much ; and whatever it was, was joint. Those were the joint instruments of gain, and to his mind were conclusive in favor of including the subsequent profits in the accounts to be taken. But there was also the defendants superintendence and management, and there was abundant authority for saying that he was entitled to fair and reasonable remuneration for his service--. The direction would therefore he, that in taking the accounts of the partnership transactions, the Registrar should include an account of the net profits made by the bond subsequent to Fuller’s bankruptcy, and that he enquire and certify what remuneration the defendant was entitled to for his superintendence and management during the same period ; to enquire and certify to what extent Fuller contributed by his services in continuing the business, and what sums he had drawn from the partnership funds during the same period. Costs reserved.

Mr Barton asked for leave to appeal, but the application was opposed by Mr Macassey unless additional security was offered, because tbe defendant had thrown every obstacle in the way of settling the matter His Honor said security for the costs of appegl must be given. ■ THE PASTORAL LEASES, M‘Lean v. Macandrew and others.—This was a motion to dissolve an injunction granted exparte, on January 24, 1871, restraining the defendants, as members of the Waste Lands Board, from dealing with the plaintiffs run. Mr Barton, which whom was Messrs Haggitt and Shapter, appeared for the defendants, Messrs James Macandrew, J, T. Thomson, D. Reid, J. L. Gillies, Geo. Duncan, and John Hughes ; Mr Smith, with him Messrs Macassey and Stout, for the plaintiff Alexander M'Lean. The ground upon which the motion was based were these:—That the plaintiff had shown no equity, and therefore was not entitled to bring or maintain his action; that the proclamations and acts of the defendants complained of by the plaintiff are acts of State and Government, and therefore the Supreme Court had no power to restrain their performance ; that the said proclamations were acta done on behalf of the General Government under delegated powers from the Colonial Government, and therefore were not liable to be set aside by this action ; that no cause of action had been shown against Mr Macandrew, as Superintendent, nor was any wrongful act or proclamation alleged to have been done by the other defendants, either as members of the Waste Land Board or Provincial Executive ; that the plaintiffs lease was not valid as against her Majesty the Queen; that it was liable to be cancelled, as appeared by the declaration; that the defendants had not attempted to deprive the plaintiff of more than 5000 acres of laud for agricultural lease purposes, and otherwise did not attempt to defeat the provisions of the 35th sec. of the Goldfields Act; and that the defendants, Gillies, Duncao, and Hughes had :ong since ceased to he members of the Government, and had no power to stay the performance of the acts complained of. The plaintiff was also charged with suppressing facts in his affidavits relied upon in asking for the injunction. It was incidentally mentioned, on behalf of the plaintiff, that nothing was raised in reference to the ground of objection relating to Messrs Gillies, Duncan, and Hughes, which was met by an answer from Mr Barton, that it had been pleaded i -i abatement. Mr Smith submitted as a preliminary objection that the present motion came too late, an interval of fourteen months having

elapsed. No affidavit has been filed accounting for or explaining the delay. Mr Barton said that his side had been t iken by surprise, and expressed his intention of aski ig for an adjournment, if his Homr thought there was anything in Mr Smith’s contention. His Honor thought there was a good deal in it. The cases cited, and his own impression of proceedings in courts of equity, supported Mr Smith’s contention : the only point was whether it ought to be followed by an undertaking to proceed. That being the case, he would grant the adjournment asked for. Mr barton said if he were allowed, he would file affidavits showing that the delay uu to tbe present time had been reasonable, as it had been occupied m negotiating for a settlement of the suit. Another reason for urging that the case should be argued as it stoo 1 at present, was that if it were dismissed upon a pure technicality, it would be brought on by demurrer in all points save one in due course. He understood that a decision on the present case would decide the suit. His Honor : If I were certain that this motion would decide the case, 1 would have no hesitation in hearing it. Mr Barton was understood to say that the sole point in dispute was whether gold had been found on the run, and for his own part be did not intend to raise any contention thereupon, as he was satisfied his case would be sufficient without it. At four o’clock the argument was not concluded.