SUPREME COURT.

Poverty Bay Herald, Volume XL, Issue 13170, 2 September 1913, Page 3

SUPREME COURT.

(Before His Honor Mr Justice Cooper.)

TO-DAY'S PROCEEDINGS

The Supreme Court resumed at 10 a.m. to-day. A PARTNERSHIP MATTER.

Anne Elizabeth Searle, of Gisboi-.,ie, wife of Arthur Searle, tailor (Mr Burnard, with Mr Coleman), proceed ed against Walter Henry Clayton, of Gisborne, timber merchant (Ma* Stock, witfc Mr Matthews), on a claim for £-467 4s lid, balance on statement of accounts, and that accounts be taken between tbe patties. _v_r Burnard, m opening the plaintiff's case, said the parties were relatives, and the actions to which the case related were spread over a long period. In 1899 the parties purchased a section m Gladstone road, and this was leased to Rdssbotham and Searle, tailors. A ire-h lease was made later at £1 a week, and defendant leased a portion of tlie land that he was interested m m Dc/by ' street at 10s a week. No- actual rent wits vpaid by Rossbotham and Searle to Clayion and Searle, as the plaintiff's portion of the .£1 a. week rent was a set off against the 10s a week rent 'for the land defendant- had leased m ( Derby street. The fresh lease was entered into m 1907. The terms of the lease were, however, not material. His Honor : Well, why riiention them ? He said he took it thi case was one m which the parties were tenants m common m a piece of land, and it was asked that accounts, be taken' Mr Stock said there was no. means to find out what the position of the account was. His Honor • 1 have looked through the papers, and cannot see where there is £4_7 duo. Mr Stock . Neither can we. Mr Burnard said that was an error, ' the papers having been hurriedly drawn ; up. Continuing, Mr Burnard said the lessors wanted a better building, which was ' erected. It was arranged tliat defendant, who was not m good health, should keep a rough book, showing the position of the account, but this was not done, and the plaintiff had to pty up. The reason for these proceedings was that 'defendant was selling his interest m the land, and plaintiff wanted .to get what waa due to her. Mr Burnard was referring to ihe atateriient of accounts, when Iris Honor interposed' that it appeared that £700 was due the plaintiff. - Mr • Burnard explained that that -mount had to be divided into halves. His Honor: That is a rough-and-. ready way of doing business, surely. Mr Stock : If you are prepared to offer that,' Mr Burnard, we will accept that. His Honor commented upon the manner m which the statement of accounts was drawn up, remarking that he 'iad spent an hour going through it, and. he was unable to make head or tail of it Mr Barnard : These accounts were made up by an accountant. His Honor : I don't care whether they were. Can you explain them? Mr Burnard proceeded to explain the

His Honor: Nothing is numbered. Nothing is linked together at all. Referring to one item of £152, Mr Burnard *_a"dl that was plaintiffs share of the loss m connection with the partnership. _lis Honor, detailing various items, eaid the accounts appeared to ' be a Chinese puzzle. Mr Burnard referred to the revenue account, and his Honor said he was npt goirig to consider an ill-digested' mass of material. He did not see how he could declare any basis between the parties. Mr Stock said the accounts were settled up to a certain date, and since then no liability was incurred . by defendant at all. His Honor : , This statement would give me a headache, which I don't want. (Laughter.) He said it would be quite easy for an accountant to set out the .accounts showing the position of the parties. He said there were 35 pages of an ill-digested mass of material placed before f him, and he could not understand it. ' Mr Burnard went through the accounts, and said there was a balance of £419 0s 3d to plaintiff's credit, and this, with the £100 deposit on the property paid by her, made £519. Frorfj that few, deducted £152, plaintiff's portion ot^tne total toss of the .'partnership. ' .Hia Honor again commented on the unsatisfactory condition of the statement. .>lr Burnard . admitted that, they were tiot', very clear, and explained that he had only seen the accounts himself a lew days ago, • ' His Honor : I notice the pleadings for the defence objected to the statement. If the parties could not understand it, how* waa it to be expected that 1 should? Mr Stock: Your Honor will notice thfct we also plead the statute of limitations. ! , „ . His Honor : Oh, I don't know that the _t_iute * of limitations can apply here. He remarked that there had been subsequent improvements to the property. Mr Stock: There had been no improvements since 1906. Mr Burnard:, And it was only m recent years that there waa a credit. . Mr Stock said if his friend admitted nothing waa due prior to 1907 he would accept it. ' Hia Honor : You say, then, that nothing was due prior to 1907? . Mr Burnard : I don't say that altojrrlher. He explained that, there was ftttrtifr £50 due up to 1907. ."•Fiu titer time was occupied! m goirg through flome of the items for explana-

tion. , „ A His Honor: You say about £50 *as diub^up to 1907. Where is that shown m the "accounts? Mr Burnardi That wul be a master of evidence of the accountant. He sad there was about £36 which would be statute barred. His Honor : Well, why not waive that, and commence from 1907. Mr Burnard: Perhaps that would be the better course. Mr Stock: We are agreeable to that. His Honor asked if there had betn .any account* rendered m writing. Mr Stock said there had been no trrifcten account since 1902. . His Honor: Were any books kept* 1 ''■ Mr Burnard : No, there was not. lie

explained that m the initial stages of the _*_*ctner»bip it was arranged that the parties should meet, and defendant. was to enter! up the book. This, he did iriofc. do after I the first page. fii_ Honor : Are the parties relative^ ? v ' Mr Burnard : Yes, by marriage.', "Hie Honor (laughing) : Then they axe Connections. Marriage does not make relative^ V^M- Burnard explained the parties were broiher and sister. ; r Hi_ Honor said it would be better to tefer the dispute, m that case, to arbitrration. The legal questions that might t^riee could be brought before the Court man intelligent way. It was clear tlie Court could not go into the matter now. Mr Burnard : I recognise that. After further discussion as to tlie basis' of arbitration, his Honor said it seemed tt> him two courses were open. The first Was to refer the matter generally to an aedountant, reserving the question of liability for decision t»y the Court later. The other was to adjourn the matter, and order the plaintiff to supply the defendant with some intelligent statement, so that he would know where he was.

Mr Stock said he would agree to the matter being referred to an accountant if January 1, 1907, was made the basis. Mr Burnard said it would be unsatisfactory to strike out one period. ALf Stock said m that case he would _«_ that the second course bo adopted %Sr gurnard, after consultation with iMr Coleman and Mr Searle, said they sMjree to accept January 1, l""07, '4/JSfati_&'_ •*_^?ty_H- '■'■"•■ :\lB\» : H6hbr l; AnA- you waive the claim to the £100 deposit? Mr Burnard : Yes ; I thi«k pther payments will make up for that. His Honor said he did not think it necessary for each party to appoint an Accountant; they might agree on one. Mr Stock suggested Mr John Cole man, and Mr Burnard agreed. His Honor then drew up the followibfr minute -. "By consent of the parties, ihe matter; be referred to Mr John Colejntan, depuiy-oflßcUl assiipee, to take *M*i*mnts between the parties as from tlie Ist Jjfc©u*ry, 1907, the plaintiff abandon-

ing any claim prior to that date. The account to start upon the assumption that neither party owes the other any money on tliat date. The. accountant to report to the court and the provisions of the code to apply as if tho report were, that of the registrar and an accountant. The plaintiff to have the conduct of the proceedings and all questions of costs to bo reserved. Tlie accountant to have all the powers contained m rules 43_, 435, 437, 439, 440, 441, 442 and 443. Liberty to the parties to apply.

His Honor said he would not fix any time for the delivery of accounts ; that as so arranged for between themselves. At this stage (11.45 a.m.) the court adjourned until 2 p.m. QUESTION OF COSTS. This morning His Honor dealt with the matter of costs m the case of Ernest Ferdinand Peacocke (Mr Blair) v. Peacocke and Cp. (Mr Burnard), a case tliat was heard at the last session, and m which judgment was subsequently given for tho defendants, the question of costs being reserved until the present sitting of the court. In reply to His Honor Mr Blair said the judgment was accepted as final. .. His Honor asked how judgment was to be entered, as on a non suit or for the defendant? Mr Burnard submitted it should be entered for the defendant. Mr Blair said the facts were agreed | upon and they accepted the judgment. His Honor: That being so judgment [will be entered for defendant with costs ! on the lowest scale. DIVORCE CASE. ■ The case, Margaret Hislop, of Matawai, petitioner (Mr Burnard) v. James Hislop, of Gisborne, laborer, respondent, petition for divorce on the ground of desertion, came on again to-day. The case was adjourned from last session for further evidence as to desertion. This was forthcoming, but his Honor said_ there was not sufficient evidence for lilm to grant a decree nisi for* desertion. If authorities could be shown him bearing on the case, he would grant a decree nisi. The fact that respondent was m gaol when the summons was served imputed bad character. The petition would be adjourned. Tlie Court then adjourned until 10 a.m. to-morrow.