SUPREME COURT.

Dominion, Volume 1, Issue 255, 21 July 1908, Page 4

SUPREME COURT.

-MaUESTiOW-OF PARTNERSHIP. GILMER AND MAGUIRE v. ROBERT y- ,DWYER. . • -APPLICATION -FOR SPECIAL JURY ItEl USED. "'Mfi'-'Ju'stice Chapriian yesterday delivered Ji{dgtterit : with,'rfespect to an application: by ;'|ilainjjiffs, for, tho case of Hamilton ; and ; - -/Ulan Jlaguire (plaintiffs) _v. -,Ilobert. ;Dwyer.i(liceiisee of tho Duke of Edinburgh Hotel) by special jury instead of by a common jury^Sf-'Welve,. .. . - . His Honour Tsaid . that the application wfis based on an affidavit suggesting that'the con,sideration .;,pfy.;Wib case would involve the fr'oni the d'videnco which.wbuld.Teqiiiro,business and conilnorcial .•knqwl.odge,i iif.lt,: was -admitted that .there woufd.ibo.;-'ono(.iissue. only, namely,, whether i'the'plaintiffs-vanditho defendant lriado a'ver-i'-bal agreement for'a partnership in a licensed house'.purchased .by the. defondant by. means of.,inp!iey-,advanced. by tlio';plaintiffs..- Tho ;,quQstipii.i;tbnt llaJ;had' now to consider , was the case was one iwhjch'wpuldsb© more satisfactorily tried by a jury-"Pf-comhiWcial irien such as ordinarily •|6i?^3' I '|S^ial i > '3wy»' whether; he- found J it. T\ f fls la~ctise ra~tho trial of which .'expert knowledge was required. u\s a rule, 0110 did riot expect tp;.ifind ■ expert knowledge in a 'sppcialcfsenso'i iitothe. jury—that might;havo utokbp supplied; inv»tlies shapo-of. evidence by isurgebns^eft'giiffietgi.'mining experts, accountfail'tsj' farmSi'SJ'keh'hjen, or mechanics.:';lt;had, Considered' that -the : isnactreferred br..:might I i'efqr^lp'fiasiS, evidenco'-.became an ;'essentiar part' of the .evidenco necessary for'the parties;! In ca'se's, 'however.;!WHere questions - of or mercantile'inethods involving any consider■ablo compleiiitf 2 w^re'^iri''question the expert •knowledgo-nright~bs-expected-to be found in a.',jury„drawu. jj'.oril. the_ class which was - almost'certain'to contain in a'large degree tho-, requisite element in .tlfo'ishapo of mercantile faen of superior -business training. j Examination of 'tho "-affidavits arid : other 1 documents'already 011 the filo led the Court tg*;tiank«thqt it would bo going far .beyond ihfeulecwed'fcascs-a's W'ell as beyond,tho,terms bf tho it : to . say . that, export .[cnowWge of tjic-iatt'or -kind or of any kind was required in tlio present case. > - Accounts ■ Md*beeri'4iegt,jandi would-have to be.referred l elb- waS'Jo disputo whatever about Jhoso accounts: 'jdpd :'there could bo; nothing in them beyondjivHat ordinary persons without oxpert'lajowledge' of accounts' would.,prejsumably understand and appreciate. Various, urged, 'srich as "'the fact that 'tegiilar*' securities, were not executed, 'pnd. that tho. mortgagees-took stock from ,'timo to I timo!.'.''sr < at some time riot", usual 'in* iho ordinal t&iWo'"of"the;relation, between, jnwtgagofi andilm'ortgagce.. Further, it was said'-rthatv thbocmmmstance that , there was jnvblved -'in .thcxinq'uiry into the transaction facts said to bo-i'similar to those of a second iransac'tiohii.bctwecn th.e plaintiffs and the Qofendaiit's-broihcr, as to which a "similar -action-was pending.-. Theso, however, were so ;far-'ij&;thOjCpurtiPOuld. see all. niatters within! ? tfi?OTffpSK^'6Fa''common'jaij'. 'None of those incidental matters wero in themselvesdisputc^ T n(atto,r.?, v and it was not_ suggested that Artir trade* cilstbm had to be invoked to support,tho oase-fof the plaintiffs. His' Honour found, therefore, that, so far..as any-evi-denco before l liiffi l,l went', : the inquiry would not beinore complitiatel: than many both civil' and criniinal;- Jip had tried with tho assistd,uring .tho last :few months'.' In making tho order for trial of-'tho caso by a jury lie had referred to certain of tho argumpnts ; «pji'behalf of-tho plaintiffs as arguments appropriate to such an applicaitionciff'tho present ono, but lie was thpii rearguments based'upon ' hypothetical stateritbrits' 110 might havo drawn J infeYenMs'iio't supported by tho -affidavit now 'b'eforo''liifri'. application .would be refused. . ' ■ " 011 behalf of tho plainWs^*aM''MK' ; 'for-tho defendants. IN'DIVORCE. ■ . Mr Justico Copper yesterday considered a nvo.tibnaiir;);e3PAot of tho divorce action, David Duncan (petitioner). v. Emily Louisa Duncan for decree nisi granted by Mr. Justico Button on November 28'lastto bo mado. absolutealso an application by petitioner, for custody of the infant child of ii* •Tho . application,: with re'ferenCtyto?tiu> cuslwly 'of the; child* was opposed respondent!-;'" who asked for maintenance for for an adopted child.' His Honour' granted ' tho decree, absolute, • and gave'thWcUstody-rof -tlio child to the resp'ondont. He orderedfpetitioner to nay 15s. por week as maintenance of the children.Tlio . question. •,ofi'.co?ts was 'reserved. Mr. "Toogood appeared on behalf of the petitioner, ■. '^.Mr. f o^^ r for'tho_ respondent.