LADY DOCTOR'S ESTATE

Star (Christchurch), Issue 16895, 21 November 1922, Page 7

LADY DOCTOR'S ESTATE

EXECUTRIX AND PARTNER AT LAW. A MOTION DISMISSED. Mi A. C. Martin. as' arbitrator, in a rlisp ato between C iiristiiui .Murray CVuickbhank. executrix of the wjJi or the late I)r Margaret- B. Cru iokshank, ml l>r H. C. Barclay, i>r Oruick?ruickshaxik's partner, was dismissed jy his Honor AJr Justice Chapman in i .judgment read by the Registrar inlay. l>r Cruiekshnnk and Dr Barclay for many years were in partnership a fc Wainiate. The partnership was terminated by the death of Dr Oruickdiank on November 28, 1918. from influenza, but lief ore that date. Dr Barclay. alter serving in the war, began practise at Maidstone, Kent. Disputes arose between Dir Barclay and t-lio executrix of l>r C'rui<kshan!< s estate is to whether I>r Barclay’s earnings in live Army and in practice in Kngland belonged to the partnership. The executrix went to arbitration under the partnership agreement. The arbitrator made his award on June 4. 1921. but steps were taken to set it • side after some drlo\*. His Honor said that there was nothing to suggest that the executrix had invited delay or that Her representatives had caused it , Prolonged delay was not imputable to her; it. presumably had the effect of leaving her io assume that- the award was not fo be impeached, and was not capable of being impeached. His Honor added : *lt is true that if a partner uses up the time of the partnership in making money in venture- external to the partnership business, he is liable to pay damages for loss he has incurred, and cannot bo made to account for the money ho has made. This test does not, in my opinion, afford a ground for attacking the award. The scope of the agreement as to profits made* on account if the partnership is very wide, and the parties remained in friendly correspondence throughout the period lown to the death of Dr Cruicksha*'’' and for all l know the award in ‘i - "espeot may be more lenient 'than if t b ■ arbitrator had stated his findin?* m more exact accordance with the direca -Judge would have given him [t seems to me that in a case like this, :nle-A tho award is denjonstrnbly defective, not merely with reference to r.he submissions mode by the parties, but ex facie the instrument itseif. the Cfemrt cannot say it is bad. If the executrix finds a difficulty in enforcing it in the domicile of the party bound, that is her loss, not Dr Barclay’s.” Dr Barclay had refused to 3bey the award of an arbitrator before whom lie had contested the claim on the merits, and his Honor thought that the executrix was entitled to have an order to enforce the award, if only to facilitate proof of the award if she found it necessary to sue on it. C*osts on dismissal of t he award. £* 1 d los. were allowed and £*lo JO- costs on the summons for leave to enforce the award. Mr F. Sv Wilding appeared in support of the summons to enforce the award and to oppos *. the motion to set it aside, and Mr <). T. .7. Alpers in support of the motion to set it aside.