LAW AND POLICE.

New Zealand Herald, Volume XXI, Issue 7001, 25 April 1884, Page 3

LAW AND POLICE.

SUPREME COURT.—In Banco. Thursday, April 24, 1884. [Before Mr. Justice Gillies.]

His Honor took his seat on the Bench at eleven o'clock.

MoLbod v. Macfarlane.—Mr. Luek for the plaintiff; Mr. E. Hesketh for the defendapt. This was a motion for a decree that <u account should be taken in terms of the prayer of the plaintiff in the action in respect co the dealings of the defendant with certain lands in Kawakawa. The action was brought for account of a co-partnership in a store in the Hokianga district, and the land at Kawakawa. The plaintiff admitted half liability in respect to the store. With regard to the Kawakawa was handed co the defendant as security for certain .d varices made by the defendant. Practically it was stated to be a mortgage.—The defendant denied that he was bound, to account in respect to this land, although he had voluntarily furnished accounts.— Mr. busk moved that the decree to be made by .the Court should embraoe an account, in respect to the store. [His Honor said the plaintiff admitted a debit of £101 9s.] Also of all sums of money! either for principal or interest, due from the plaintiff to defendant, which were intended to be eecured by the transfer of the land to the defendant, that the Registrar should be directed to take ah account from the beginning, showing all sums of money that had been received either by plaintiff or defendant in respect to the land ; that a receiver be appointed, to realize the remainder of the land (unsold), and that the defendant ehall be decreed to convey an equal half share of the land to the plaintiff.— Mr. £. Hesketh said there was nothing to be said as to the store account. But he objected to any account being taken in respect to the land on the ground that the matter fell within the 7th seotion of the Statute of Frauds, which provided that " all dealings for lands shonld be manifested in writing" (Godfroi on "Trusts"). .The defendant had made a voluntary promise to account, and had furnished an account, but there was no legal obligation npon him to account,, and consequently he ought not to be bound to do so (Fisher v. Jones, De., Cex. 139). —Mr. Lusk was heard in reply, jo the effect that the defendant held these lands on trust.—His Honor held that there was sufficient in the documents before the Court to evidence a trust, and also the nature and extent of it. He doubted- whether this ■ matter came .within the Statute of Frauds as cited, inasmuch as this was an acquisition of property in joint venture, the parties being equally interested in the profits. The trust arose from the relation of the parties rather than from any declaration of trust within the statute. It appeared to the Court that the whole of the terms' of the arrangement could be . derived from the ' relation of tha parties ae disclosed in the documenta. There was an agreement between the parties which had been treated as a. right that the parties were engaged in a joint venture, equally entitled to profits; and therefore the plaintiff was entitled to an account. Mr. Lusk said the parties would agree to a decree that account - be taken of all money due to the defendant on the security of two blocks of land at Kawakana ; that it be declared that the plaintiff is entitled to a half share of the proceeds ; that account be taken of the dealings herein; that the defendant be ordered to' pay half the cost thereof; that inquiry be made as to what part of the Kawakawa lands remain unsold, and tbat the parties be at liberty to come again before the Court to ask for direction.—His Honor : The rough minute might be drawn up, and details could be settled in chambers. The accounts of the Tahiki store might be taken up on the debit balance as agreed to by the plaintiff. The account of the lands might be taken as between mortgagor and mortgagee, that the joint interest in the lands be declared.— Ordered accordingly.