SUPREME COURT.

Evening Star, Issue 3600, 5 September 1874, Page 2

SUPREME COURT.

IN BANCO. Friday, September 4. (Before His Honor Justice Chapman.) CONST AND ANOTHER V. M‘DONALD AND OTHERS. Argument of demurrer. Mr Smith appeared in support of the demurrer ; Mr Maca&sey in support ef the declaration. Mr Macassey objected to the demurrer, saying that it was not in accordance with rules 239 and 214 of the Supreme Court. Ihe language was so general that it was impossible to apprehend the argument. He applied to amend the declaration. Mr Smith objected to the declaration being amended. His Honor add that the declaration could be amended, He would send the case back, without any condition, in order that the rounds on which the,demurrer was being argued might be assigned, MAUDE V. FRASER. Argument of demurrer. Mr •'mith in support of demurrer; Mr Macassey in support of the declaration. Mr Smith stated the declaration set forth that on the 7th of January last the plaintiff, Arthur Hay Maude, and the defendant, Robert Campbell Fraser, bought together, on joint account, 143 acres of growing crops of oats at«'tepppp, at the price of LSJ 6s an acre, upon the agreement and understanding between plaintiff and defendant that the said growing crops should be harvested, reaped, and threshed by the defendant, and atterwards sold for the joint benefit of plain* tiff and defendant, and that the clear net profits realised by such sale after deducting the original cost of the crops and the expenses attending the harvesting, reaping, threshing, and the sale and conversion into money of the paid props, should be equally divided between the plaintiff defendant. That the defendant, in pursuance of the said agreement and understanding, took possession, and in February last sold the crops at a large profit, and had since received payment therefor". that the plaintiff was always ready and willing to pay onerhaif of the prigipal cost price of the crops, and to contribute equally towards all expenses of the same, of which the defendant had had notice. That since the sale of the crops by the defendant, the plaintiff had applied to aud requested him to renter, and the defendant had neglected and refused to render, a just and true account of all moneys paid and received by him (the defendant) in connection with the original purchase and subsequent sale of the crops, aud for an account of the clear net profits, and to pay over to the plaintiff his half part or share of the net profits, which the defendant had refused to do, to the plaintiff’s loss and damage of L2lO, That all times had elapsed, all things had happened, and all conditions precedent had been performed, necessary to entitle the plaintiff to the account aforesaid, and payment of ope-half of the said clear net profits, and to maintain this acfioji in respect of defendant’s neglect and refusal to reader the said account, and to pay the said one-half of the said net profits aforesaid, wherefore the plaintiff claimed to recover from the defendant the sum of L2lO. The plaintiff also sought as special damage one-haif of the net profits made by defendant on the sale of the crops. The demurrer was that the declaration was bad in substance. The joinder in demurrer was that the declaration was good in substance. Mr Smith, having read the documents, contended that the proper remedy was a suit in equity to compel defendant to render an account, and to. pay plaintiff any such sum as might be found to be due to him. The plaint ff bad invoked the common law instead of the equitable jurisdiction of the Court, and was seeking a form of relief which was only obtainable in an action for specific relief, and for that reason the declaration was clearly demurrable Mr argued in support of the declaration, and Mr Smith having replied, His Honor said he would take time to consider.