SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 3183, 19 April 1872, Page 2

SUPREME COURT.— IN BANCO.

Thursday, 18th April.

(Before His Honour Mr Justice Chapman.)

Catomore (Trustee of William Fuller) v. Murray.—Motion to speak to summons.

Mr Macassey, with whom was Mr Howorth, appeared to support the motion ; and Mr Barton showed cause.

The defendant was called upon to show cause why an account of the rents and profits of a kerosene bond and section of land, subsequent to the 19fch October, 1868, should not be taken by the Registrar; why the defendant should not give viva voce evidence touching the same, and pay the cost of the summons. The summons had been taken out under rule 245, in order to obtain the opinion of the Judge upon the matter, but it was ultimately set down for hearing in Banco. The main question for consideration was whether the Registrar should take account of the profits received by the defendant i» connection with the kerosene bond after the date of the dissolution of partnership, namely, the 19th October, IS6B.

This Mr Macassey contended should be clone. Cases cited -.—-Watim/ v. Wells, 2, L. Rpts., Chan. Appeals, 250-2 ; Mclkrsk v. Keen, 27, Bey., 235; and others. The accounts, counsel contended, should be taken in such a way as would either credit the plaintiff' with a share of the profits made after the dissolution, or enable him to raise the question upon motion for a final decree. Mr Barton, in reply, referred to Lindsay on Partnership," where, he said, the principles set forth in the cases counsel for plaintiff had cited, were discussed. He referred more particularly to pages 987, 995, and 999, citing Blanford v. WUUtt, and other cases j and he also supported the conclusion

arrived at by the Registrar, which was in opposition to the contention of plaintiffs counsel. One of the main features of the argument of counsel for defendant was that, in the first place, it was necessary there should be special circumstances to warrant the Court in directing an account of the profits to be taken, and that, in this case, there were no such special circumstances.

Mr Macassey was heard in reply, and Judgment was reserved.

Lemon v. The Bank of New Zealand. —Mr Barton, on behalf of the plaintiff, moved for leave to appeal. Judgment was given by His Honour on the day previous, on demurrer to replication. The demurrer was then allowed with costs, but leave was reserved to the plaintiff to amend upon the usual terms.

Leave to appeal was given. Puitchard v. Gibbs.—Mr Barton moved for a rule nisi, under rule, IS7O, calling upon the plaintiff to show cause why this action should not be dismissed for want of prosecntion. He explained that notice of trial was given for the January sittings; the matter was afterwards postponed until the 19th March, but no notice of trial for the April sittings had been given. The plaintiff had not been prevented from proceeding by any delay on the part of the defendant; but notice of trial had been given for the July sittings.

His Honour said he doubted whether the defendant ought to be permitted to obtain judgment after the plaintiff had given notice : it would be equivalent to a nonsuit. Counsel, however, might take the rule at his peril if he chose to do so, with the warning that there was a likelihood of its being discharged. Mr Barton said that before serving the rule he would consult authorities on the point. He moved now because he was limited to fourteen days, and therefore if he waited until Wednesday next, he would be too late.

The Court then adjourned.