SUPREME COURT.

Lyttelton Times, Volume LXXX, Issue 10218, 12 December 1893, Page 3

SUPREME COURT.

CIVIL SITTINGS. Monday, Dec. 11, (Before his Honor Mr Justice Denniston.) O’SBIEN V. BTEAD. In thia case, Daniel O’Brien, of Upper Riccarton, near Christchurch, racehorse owner, was plaintiff, and George Gatonby Siead, of Christchurch, merchant. Treasurer of the Canterbury Jockey Club, and authorised stake-holder under the New Zealand Kales of Easing, defendant. Mr H. D. Bell, with him Mr Lane, for the plaintiff; Mr Fisher, with him Mr Stringer, for defendant. The plaintiff prayed that the defendant be ordered to render him an account of all moneys received by the Canterbury Jockey ! Club ia respect of the Challenge Stakes of j 1893, and that he also be ordered to pay J such moneys to him. The admitted facts showed that the I plaintiff’s colt Loyalty had entered for the | Challenge Stakes i ace on April 4, 1893, and | had bean declared the winner, and the sum j of .£1520 had been paid to the plaintiff by | the defendant as representing the total j amount of money which the plaintiff was i entitled to receive in respect of the race, ] after deducting £4OO as mentioned in the j programme and the advertisement for j cb.o second and third horses. No account had been rendered by the defeuI danfc to the plaintiff in pursuance of the Rules of Racing showing the total amount of moneys paid to and received by defendant for and on account of the stakes and forfeits ia the race. The plaintiff had requested the defendant to render him or his agent an account of all the moneys paid to or received by tha defendant as and for stakes and forfeits ; and tha plaintiff had demanded from the defendant payment of nil such stakes and forfaits, subject to the deductions previously mentioned, and other proper deductions. The defendant had refused and still refused to reader to the plaintiff or his agent such account or any account, and had refused and still refused to pay the plaintiff any sum other than that paid to him already. The part of the statement of claim not admitted set forth (par. 9) that the plaintiff verily believes that the defendant; had, and still has. in hie hands or under his i control a large aum of money received by him aa and for stakes and forfeits in the said raco, and far exceeding the aum of £2OOO mentioned in the programme, (par. 10.) The plaintiff submits that under the Rules of Racing, to which ha craves leave to refer, being the winner of the said race, ho is entitled to have the said account rendered to him by the defendant, and to receive from tha defendant payment of all moneys paid to or received by the defendant as and tor stakes and forfeits in the said race, subject only to the deductions mentioned ia paragraph 5 and other proper deductions. The plaintiff prayed—(l) That tho defendant may ba ordered to render an account of all moneys received by him as and for stakes and forfeits in the race. (2) That subject to tho deductions aforesaid the defendant may be ordered to pay to the' plaintiff all sums of money in the hands of the defendant or under his control, received by him as and for such , stakes and forfeits. (3) That the de--1 fendant may bo ordered to pay tho costs of this notion, and (4) that the plaintiff may | havo such and further relief as to the I Court may seem fit. Tho amended statement of defence admitted that no account had been rendered to the plaintiff as alleged, and said that the plaintiff was not entitled to such account, and that there were no states or forfeits in the race (pas. 5). The defendant had no moneys in his hands or under his control which he hod received as stakes and forfeits in tho race. The defendant submitted (6) that according to tho conditions and Rules of Racing under which the race was run, the winner was

payment by tho Club of the slake of £3OOO offered to the winner, less deductions. Further, that the winner was not entitled to receive or be paid any other moneys than hia proportion of the stake of £2OOO which bad been paid to the plaintiff. (8) That the defendant had no money in his hands or under hia control, either as stakeholder or otherwise, which he could or might pay or apply to tho purposes of the said race, other than tho aforesaid sum of £2OOO which ho received from tha Club, and which he paid and applied ia accordance with tho conditions under which the raeo was run. (9) That the race was for a fixed stake or prize of £2OOO provided by the Club out of its own moneys, and no more. (10) There were no ‘'stakes and forfeits ” in the race to which the winner was entitled within tho meaning of tha conditions and rules. (11) That the words “ stakes and forfeits ” in the said conditions sndruleshad atochaical and well-understood meaning among racing men in New Zealand, and did not include entrance moneys paid ia respect of a race such aa mentioned. (12) That the entrance moneys paid in respect of horses entsred for the race belonged to the Club, and neither the plaintiff nor any, other parson other than the Club was entitled to any part thereof or any account of the same. (13) That the sum of £1530, which tho plaintiff acknowledged to have received, was all that he was entitled to. (14) That at the time Loyalty was entered, it was well understood that according to the true intent and meaning of the programme the total value of tho stake was £2OOO, to be provided out of the moneys of the Club, and that the value of the stake to the winner did not depend on the number of entries for the race otherwise than that the amount of tho stake might be reduced under the circumstances stated ia the programme; and also that there would be no added money, and also that the entrance and subscription moneys paid to the Club by persons entering horses to run for tho said stake would bs retained by tha Club for its general purposes, and that no part should be added to or go with the stake or prize. (15) That at tho time when Loyalty ran it was well known to, and understood by, the plaintiff,the defendant and tha Jockey Club that the total value of the Challenge Stakes was £2OOO, no more and no less, and that it was provided out of the moneys of the Club, and was being distributed in manner stated in the programme; also, that the value was not influenced by the nnniber of entries, and that there were no sweepstakes or added moneys; also, that the Club bad received a large sum of money in respect of horses entered for tha race; also, that the Club claimed and had exercised the right to retain such last-meatioced moneys for its general purposes, and that the plaintiff had no right to the same. (16) The plaintiff, with a full knowledge of this, received £1520 in full discharge of all claims which he had, or might, or could have as the winner of the race. (17) The defendant was bound by, and ought cot to be heard to allege to the contrary of, the premises. (19) The race was run under Rules 20, 25, 33, 51, 126, 131 and 137 (quoted). (21) Tha official programme issued by the Club for 1890 and 1891, and under which entries for tho Challenge Stakes were invited sad _ accepted contained this: "No entry will be received for any of the races except upon this-con-dition: That all disputed claims and objections arising out of the racing shall be decided by a majority of the Stewards present or those whom they may appoint. Their - decision upon all points connected with the carrying out of the programme shall be final."

Mr Bell briefly opened the case for the plaintiff saying the chief point was a legal one and turned upon a contract which began by tho issue by the Club of a raoe programme. Ho read tha programme and cited the facts in connection, with the race. Before bringing the ease into the Supreme Court, the plaintiff by his solicitors, Messrs Lane and Loughrey, wrote to the defendants and offered to submit a parallel case to a competent board of arbitration in England, each party to abide by its decision, the party decided against to pay the costs. To this no reply had been received other than an intimation that O’Brien’s horse was protested against as the winner. The case mainly depended upon evidence as to the meaning of tha confcraot. He. mode reference to the depositions of John Marshall, John Kirkwood, William JPeroival, Thomas Morris, and William Knight, taken on commission before the Registrar of the Supreme Court at Auckland on behalf of the plaintiff, under an order made by his Honor in Chambers. Mr Marshall had stated that the owners of the horses running in the Challenge Stakes Race furmshedthe stakes by their subscriptions and forfeits, because the Club reserved the right to reduce the stake provided fifty of the horses entered did not remain in on August 7, 1891. If the stake was for £2OOO, and if tha forfeits and subscription did not amount to that sum, the Club would have had to find the difference, but it protected itself from loss in this way by reserving the power of reducing the amount of the stakes. The winner of this race was entitled, under Rule 74, to the 2000 sovs, the subscriptions and the forfeits, with no deductions other than £2OO to the second horse, £IOO to the third horse, and £IOO to the nominator of the winner l and 5 per cent towards the expenses of the course; and there was no provision that the stakes* and forfeits should go to the funds of the Club. If there had been such a provision, tbe stakes would have been restricted to the 2009 sovs. Tha race was really a sweepstake under the forfeit system. Mr Kirkwood had deposed that on the programme tho winner was entitled to the stake snd forfeits, and he endorsed Mr Marshall’s views. The words "by subscrintions ’’ in tho conditions indicated that the stake came from the owners, and that the race was a sweepstake. Mr Morrin concurred with the previous witnesses, and stated that if it was intended that any portion of the subscriptions or forfeits should go to the Club, it was generally provided by the words ** to go to the funds." The race, in his opinion, was for a stake of £2OOO with a sweepstake or forfeits o! 25gs. By the conditions mentioned in tho announcement of the race,£the winner was entitled to tha stakes and forfeits as wall as the £2OOO. Mr Percival and Mr Knight had given similar evidence on tha Commission.

His Honor said he would peruse these depositions before the case was finished. Mr Bell called George Dowse, handlcapper of the Dunedin and other Jockey Clubs, who deposed that he had handicapped for eleven years, and had served on Committees for twenty years. He had read the programme of tha Challenge Stakes issued by the Canterbury Jockey Club. He knew the different classes of races, and ho would say that the Challenge Stakes Race was a sweepstake. He knew Rule 74 of Easing, which said that stakes and forfeits belonged to tho winner of a race unless otherwise specified. Ho found no such specification in tho conditions of the Challenge Stakes, which was certainly a sweepstake. No programme of a race of thia kind had been published before. The owners of tho borass subcribed all the monay that was run for. Supposing the amount of the subscriptions ai'd forfeits only amounted to £ISOO the Club would have to provide the difference and make it up to £2OOO. To Mr Fisher All entrance moneys went to the Club if it was so specified under the rules of racing. In nearly all programmes nominations and entrances were stated to go to the Club. In the programme he had of the Canterbury Jockey Club for 1891 there waa nothing to show that the entrance moneys of the Raster Handicap were to go to tho Club. Ha was used to programmes with conditions properly stated, but he would think that under the programme produced the entrance moneys would go to the Club. Tho wiener would get tho amount of the race that was mentioned. That principle applied to nil races for fixed sums and plates, unless it was otherwise mentioned in tbe programme. Is ims n vule to call v. sweep-tike race a swepvtako in the programme, or tho words with*" added money " were written. In tha programme for 1890 handed to him he

stake of £3, and waa co expressed to bs a sweepstake. Nomination and entrance money waa not tbe same aa subscription. Waa not aware that the word subscription waa used in reference to a plate or cup. Ia the programme of 1893-94 of tha Victoria Racing Club he saw that the Melbourne Cup closed with two hundred and eighteen subscribers. He knew " Ruff’s Racing Guide," and saw the description of the "Eclipse Stakes” on page forty-five. Mr Bell objected to this manual being put into Court as aa authority to be studied ia regard to the case. His Honor upheld this objection. Mr Fisher examined the witness upon races mentioned in the Guido, and the technical term " subscriptions,” Mr Bell objected to any evidence p.t all being given by the production of the Guide on English programmes, snd submitted that TafctersalTs Rules were aa much entitled to production aa “ Sufi’s Guide.” Mr Fisher submitted that the Guide waa racing literature acknowledged as authoritative,- and could, therefore, under Downie Stewart’s Act, bs admitted. Hia Honor said it was merely a record. The Newgate- calender might as well be called literature instead of a record. The witness continuing, hia Honor allowing Mr Fisher to ssk the questions, said he called a race a sweepstake when the stake waa made by subscriptions by the owners. No provision was made in the raco in question for the reduction of the stake. If tho entrance moneys amountsd to more than £IO,OOO in the Eclipse Stakes mentioned the surplus would go to the first horse. If the amount was less the stake would not be lowered. Hie Honor mentioned that he would not take the statements contained in “ Ruff’s Guide" as evidence.

Witness, continuing: He saw s circular containing an announcement of the Canterbury Jockey Club’s Challenge Stakes. If he had received that circular at the same time as tho programme, he would still have been of opinion that the race was a sweepstake. He considered the subscriptions to be in payment of a sweepstake and not as entrance fees, notwithstanding that the total “ entrance ” fees amounted to £25. The Club was guaranteed against any loss. Entries and nominations were the same; A sweepstake was a race made by the money of the owners, and the total going to the winner. Tha £2OOO stake in tha Challenge Stakes Race waa not added money ; the Club guaranteed the stake to reach. £2OOO. Rule 74 applied to this race. To Mr Bell: In all sweepstakes, unless otherwise provided, the entrance or nominations went to tho winner.

H. M. Lyon, Secretary to the Wellington Racing Club, deposed that ha had served for fourteen years in this position, and had seen all the New Zealand programmes and a great many Australian ones. Had made a study of programmes. Had seen the advertisement of the Challenge Stakes and had studied it. Ho understood from the conditions that tha winning money was to be made up of subscriptions of those entering for the race, All moneys in the hands of the Club at the time of the race, less £490, would havo to go to tbe winner of tho race. Any surplus over £2OOO would have to be paid as well as tho £2OOO. The conditions said “by subscription,” meaning that the stakes were to bo made up by the owners. Knew Rule 74 of the rules of racing aaent stakes and forfeits going to the winner unless otherwise declared, and considered that it applied to the Challenge Stakes. To Mr Stringer: The Challenge Stakes, as defined in the programme, was a sweepstake. He was led to thia conclusion because the money was made up by subscription. The wording was vary clear. The stakes and forfeits were clearly written down as composing the stake for which the race was to be run. The race ’was thereby brought uadar Rule 74. He did not remember seeing the term subscription used in any other sense. Did not know whether the word was used differently in England to describe certain races. It the word “ entrance " had been used the raoe would not havo been a subscription race—a sweepstake. The practice gave the entrance fees to the Club unless otherwise specified. Supposing the circular had accompanied the programme of the Challenge Stakes, he would still have called tha race a sweepstake. He did not look at the term subscription to mean entrance. It appeared that the compilers of tha programme had used the words subscription t and entrance as being synonymous. He looked upon entrance to mean subscription, not subscription to mean entrance. It was clear to horse owners that under the conditions they were running for their own money, and the Club protected itself from loss. Had always seen a sweepstake described as a sweepstake except in tbis par tiotuar instance. In tha Canterbury Jockey Club’s programme, 1890-91, ho saw the original Challenge Stakes —a aweepatake with so much added. Looking at the present Challenge Stakes he considered that the change in the language meant that (something new and better w&sbeing offered to the public, but did not infer that the race was not a sweepstake because of the change of language. * The stake was a minimum one of £2OOO guaranteed by the Club, which took steps to protect itself from loss. To Mr Bell: The word “sweepstake” never came in the - name of a race; it was included ia the conditions. Sydney James, Secretary to the Dunedin Jockey Club for thirty years, deposed that he had been engaged in drafting programmes during his secretaryship. Had read the conditions of the * Challenge Stakes. Under those conditions the winner was entitled to the whole of the money subscribed by the owners. Rule 47 applied to the race as set out ia the programme. To Mr Fisher: The race waa a eweepetake because the whole of the money was paid by. the; owners. The programmes Itself was very misleading in one. part, the word "forfeits” being used, and in-an-other part word “subscriptions.” These terms he considered to ba inconsistent and ambiguous, leading persons who did nob understand racing to a wrong impression regarding the race. The in-

consistency came in where the word forfeit j was eo placed as not to appear to apply to a sweepstake, when it did. He had never seen the word subscription used in tho Australasian Colonies in respect of a race. The word entrance added to the ambiguity of the programme. Entrance and acceptance moneys went to tbe Club as a rule, but there was no word in the present pro-. gramme to show that any money went to tho funds. The wording of the circular was consistent with the race being a SW wf*H. Wanklyn produced the minutebook of the Canterbury Jockey Club, containing tho proceedings of tho stewards. Mr Bell submitted the plaintiff, D. O’Brien, to cross-examination. To Mr Stringer: Daniel O’Brien deposed—Remembered receiving tho Canterbury Jockey Club’s circular about the Challenge Stakes Race. It was eceompaaied by the conditions of that race. He entered come horses of his own for the Challenge Stakes of 1893. Previous to entering them ha had a conversation with Mr Stead. It was ia consequence of conversation with that gentleman that he had entered the horses. He had an objection to entering horeea for the Stakes previous to speaking to Mr Stead, because tha owners were mailing for their own money therein. Mr Stead hgd. not told him of what value the stake would be. Did nob understand from him that it was for a fixed stake of £2OOO, and did not gather that from tho programme. Had thought ttat tho prize would bowh&tevor amoifat tha subscriptions reached. Had not anticipated the amount reaching over £2OOO. Did not know what the amount was row. Had heard that if the Club collected the subscriptions it vrould make a good thing out or it, as the amount would be considerably over £2OOO. Had complained that the sum of £1520 was not enough when be had been- placed oh the forfeit list. He had read tha rules than and had sosn in Rule 74 that all stakes and forfeits went to the ■ winner. That was on May 2. Had never looked upon the eusa as being a fixed one. Thia closed the case for the plaintiff. Ms Stringer said that he' would call

programme. The plaintiff’s case rested on the alleged fact that the race was a sweepstake, and this was further narrowed down to the assertion that it was a sweepstake because of the word “ subscriptions.” The defendant relied on the fact that the programme and the circular taken, together could not be held to announce a sweepstake race. Ail the witnesses fertile plaintiff were unanimous in the statement that a sweepstake was invariably described by the word “ sweepstake.” It was clear that if the word "entrance” had been used instead of subscription tho plaintiff’s witnesses would have called tho race a plate and not a sweepstake. The Auckland witnesses all said that the word “subscription” was used in regard to all other races, bo they had no reason for concluding that the Challenge Stakes was a sweepstake because of the use of the word. The change o£ generally used terms must be taken to be indicative of change of intention.

George &. Stead deposed that be was a member of the executive of the Canterbury Jockey Club, and had been bo for twenty-three years. He was a racehorse owner, and had had racing experience in England, Hew Zealand and Australia. He was bno of the Committee which framed the conditions of tho Challenge Stakes in June, 1890. It had been intended to be a class of race known as a plate, and where the money received from the bwnera should go to the funds. He had been one of the largest subscribers to the race. ; It could not possibly be held t q be a sweepstake from his understanding of racing language. A subscription he understood to mean a contribution, and he had heard it used in connection with races other than sweepstakes. Tho word forfeit was also generally used. It was not so explicitly used in New Zealand in regard to entrances as it was in England. Rule 74 did not apply to races other than sweepstakes. Entrance money almost invariably- went to the funds of a Club. Was aware of the conditions of similar races in England, and could quote some. In his experience in English racing the words subscription sad forfeits were used with reference to races other than sweepstakes. He had won a race in England where the entrance money exceeded the amount of added money. The Canterbury Jockey Club was not a proprietary Club, and a surplus in one race was given away in another race. Had pressed Mr O’Brien to become a subscriber to the Challenge Stakes. Mr O’Brien had objected to the race because be had said that the owners practically found the money. Had pointed out that owners contributed £25 by way of a sweepstakes to the Derby, and yet the total amount of the stakes had not exceeded .£BOO, that race being a sweepstakes with added money. This race was valued at .£2OOO, by far the largest race yet run in New Zealand. Had urged Mr O’Brien to eater, and he had dona The value of the prize had bean mentioned during this conservation, but nothing was said leading to the suggestion that the stake would be over .22000. The tormsweepsbake had not been used. To Mr Bell: The word forfeit was com- > monly used in connection 'rith entrances in England, but not in New Zealand—it was uncommon. Sir George Clifford acid himself had drawn the preliminary conditions, and subsequently Messrs, Hood-Williams and Martin had. assisted. He had been aware that the word " forfeits ” was uncommon in New Zealand in this connection, but he had not thought it calculated to mislead persons. He could not understand how anyone could bo led to balseve, under the New Zealand rules of racing, that the race was for a larger sum than £2OOO. The word forfeits in Bale 74 applied only to forfeits in a sweepstake, although the word might be used in connection with entrance. The question of using the word forfeit had been debated in the Committee, bat had been adopted, as it had been thought that • no possible mistake could be made. He would not admit that the programme had been misleading, although, differences of opinion had been shown. He thought, however, that a different word should have been adopted, as it was always advisable to use language which could not possibly be misunderstood. To Mr Stringer : The race had been drawn up on similar lines to the Eclipse Stakes and Lancashire Plate. The term " subscription” had been therein used. L. Walker, formerly owner -of racehorses, deposed-: Had bad experience of racing for many years, and was a steward of the Canterbury Jockey Club. Had entered horses for the Challenge Stakes on the receipt of the programme, but had scratched them. Had understood the race to be for 2000 sovß—a fixed sum if fifty horses remained in. It could not possibly be more according to the programme. . j. f. Beed, Oamaru, deposed that he hod received a programme of the Challenge Stakes and had entered three horses. TTnrt understood the race to be for 2000 eova and ho more. George Clifford deposed that he wp# an owner of race horses, and was familiar with the phraseology employed in rate programmes. Hftd received an aonoancement of the Challenge Stakes and bod entered horses for that race. Had understood that he would be running for <B2OOO leas deduce lions. He was one of the originators of the race, and that was the intention. To Mr Dell: Was a steward of the Club. Had meant the race to be'a plate and not a sweepstake. The word forfeits was used in the conditions, and he believed that some of the payments were called for*. felts: Did not consider that the programme was calculated to mislead, looking j at the English precedents. Looking at the New Zealand rules and practices alone he did not think the terms were misleading. It was turf phraseology to say m owner "forfeited” when he went out Of ft, race, whether money actually passed or not. It might perhaps have misled thoa® who were hot very conversant with. t& To £lr Fisher* Having, regard to Vbf phrase “ total entrance of £25,” he could not imagine ».n ednoated man, or a man conversant with racing matters, mistaking intention of the programme. The

old Challenge Stakes had been converted here into a Challenge Plate, and £2OOO guaranteed as a prize, the entrance feed going as usual to the funds of the Club, John Bt amazon deposed that he was n horseovmcr m Canterbury. Had received in IC9O a programme tor the Challenge Stakes of 1893, and had entered a, horse, understanding that the prize was ,£2OOO. To Mr Bell: Farmed h»a own'property, and owned three or four horses. ,He only raced as an interlude, and did not make it the business of hia life. ’

Horace Lunn deposed that ho had received the Canterbury Jockey Club’s programme of the Challenge Stakes, and had trained horses for the race, and had entered horses for it, keeping cue in. Understood that he was running for £2OOO, He interpreted the programme and circular to this effect. • Richard J. Mason, owner and trainer of horses, deposed that ho had atudj:ed-tiie programmes and conditions of races. He considered tho Challenge Stakes to ho for £2OOO, less deductions. Had entered and trained horses for the race. To Mr Bell: Trained Mr Stead’shorpes, and had discussed this race with him, but had formed hie own opinion about it. C, B, Winter deposed that for thirty , years he had taken an active interest in horse racing, having been handioappsr, steward and member of Committee. Was now on the Committee of the Canterbury Jockey Club, but had not been when the programme of the Challenge Stakes race had been issued. Had read the conditions. It certainly was not a sweepstake, and it distinctly came under the category of a "plate” The prizs was £2OOO, which could only be altered by reduction under' certain conditions, word " subscription” was applicable to other than sweepstakes. The word was much Used fn England, Nomination, subscription and entrance all meant the same. Bnle 74 did not apply to the Challenge Stakes. The word forfeits was applicable to every caos son in New Zealand, but was not slways colled a forfeit. The nominator forfeited what he paid for entrance if he did not accept. Sometimes the phrase was used, " Entrance, the only forfeit.” To Mr Bell: The forfeits of a sweepstake were part of the stake. Where entrance money and forfeits were mentioned jin the same rule the forfeit must he distinct from the entrance money, but the forfeit Could be part of the entrance money, 0. Hood-Williams deposed that be took an interest in racing and had owned horses. The conditions of the Challenge Stakes, which he had assisted to draw up, had been baaed upon the English Eclipse Stakes. The whole of the subscriptions were to go to the Club. The prize was fixed at £2OOO, subject to reductions. It could not be more than £2OOO, and no person familiar with racing phraseology could mistake it for a sweepstake. Prior to this race the Club had offered Challenge Stake, races, which were sweeptakeo, and which distinctly stated that they were such. It was a racing principle that all entrance money went to the Club, unless otherwise specified. ; To Mr Sell * He had taken an interest in the matter, as he had been on the programme Committee. Could not say wept amount the Club had received with respect to the Challenge Stakes, never having heard. This closed defendant's oase. The Court then adjourned till ten o'clock on tn following morning. [Pxe Pnasa Aosocia**ow.l DUNEDIN, DKO.JL The Supreme Court was engaged to-day in a case in which Mrs Campbell, widow of a member of the firm of Campbell and Crasfc and her daughter prayed that an account should be taken of the value el the shave of her husband in the buiiineto goodwill and profits since his death. Me Justice Williams said that if carried to' the bitter end no one would be men sorrowful than the plaintiff. The best course would be to effect some settle] aent. There was little doubt, looking at the, position of Crust as executor and eneviving partner, he had not done the right thing m keeping his deceased pari net's money in the business. The plaintiffs were entitled to a share of the profits which Crust had received derivable from the employment of such money cc to interest if the profits were less than interest. There should be enquiry os to what share of the profits which Croat bad received was attributable to this money left in. Owen, a partner who had joined since Campbell’s death], would be diecharged from liability to account to against Crust.