SUPREME COURT.

Tuapeka Times, Volume V, Issue 222, 2 May 1872, Page 6

SUPREME COURT.

IN BANCO. April 24, (Before Mr Justice Chapman.)

Catomore (trustee in Fuller's estate) v. Murray. In this case the decision of the Court was asked as to whether the ttegistrar, 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 in the business of a kerosene bond, having a yearly license, which, at the date of dissolution, had nine months 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 had not laid down any unvarying rule, it was not difficult to extract from the cases cited on both sidts a very intelligible principle, which was, that where the surviving or continuing 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 circumstances, account for subsequent profits, to the making of which the joint property has contributed, or has been instrumental After reviewing the cases cited, the learned judge continued :— The principle running through ithem 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 botn 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 aud management, and there waa abundant authority for saying that he was entitled to fair and reasonable remuneration for his service -i. The direction would therefore be, that in taking theaccounts 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 Maeas'-ey unless additional security was offered, because the defendant had thrown every obstacle in the way of settling the matter His Honor said security for the costs of appeal must be given. THE PASTOKAL 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 Waßte Lauds Board, from dealing with the plaintiff's run. Mr Barton, which whom was Messrs Haggitt and Shap'er, appeared for the defendants, Messrs James toacandrew, J. T. Thomson, D. Keid, J. L. Gillies, Geo. Duncau, and John Hughes ; Mr-Smith, with him Messrs Macassey and Stout, for the plaintiff Alexander M'Lean. The ground upon which the motion waa based were these :— That the plaintiff had shown no equity, and therefore was not entitled to bring or maintain hia 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 restraiu their performance ; that the said proclamations were acts done on behalf of the General Government under delegated powers from the Colonial Government, and therefore were not liabie 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 tbe 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 land 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, Duncan, and Hughes had long since ceased to be members of the Government, and had no power to stay the performance of the acts complained of. The plaintiff was also charged with suppressing tacts iu 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 in 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 ' taken by surprise, and expressed his intcn- j tion of asking for an adjournment, if his Honor thought there was anything in Mr Smith's contention. His Honor thought there was a good deal in it. The cases cited, and hi 3 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 up to the 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 stood 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, I would have no hesitation in hearing it. Mr Barton waa understood to say that the sole point in dispute was whether gold had been found on the run, and for his own part he did not intend to raise any contention thereupon, a* he was satisfied his case would be sufficient without it.

ArniL 25.

This morning Mr Barton concluded his argument, and Mr Haggitt folio wed on the same side, contending first that the proclamation cancelling 17,361) acres was perfectly legal, aDcl consequently that if that proclamation was legal, then the Executive Government might deal according to their own discretion with the lauds so cancelled without any reference to the runholder, in accordance with the provisions of the Goldfields Act, 1860 ; and he submitted that the injunction was therefore wrongly granted in the first instance, and must be dismissed on the present motion.