BANK OF NEW ZEALAND SHARES.

Press, Volume LIV, Issue 9834, 17 September 1897, Page 6

BANK OF NEW ZEALAND SHARES.

AN IMPORTANT CASE. (PRESS ASSOCIATION" TRLEQRAM.) AUCKLAND, September 16. I At the Supreme Court a very important caee came before Mr Justice Conolly, viz., the Official Assignee iv Bankruptcy v Alhn W. O'Neill and Lcuis O'Neill, of Auckland, a claim for £1978 12s for calls and interest due to the Bank of New Zealand. Allan W. O'Neill was adjudicated bankrupt on April 6th, 1897, and the defendants were trustees aud executors under t!ie will of James O'Neill (deceased). At the time of his death J.iraes O'Neill owned 1131 Bank of New Zealand shares, and after his death defendants were registered as proprietors of the said shares, but continued to hold them as trustees of the estate. The shares were then subject to a liability of £10 per share and further calls were since made, but defendants did not pay them. The Bank sued defend/ml,?, and recovered judgment. In October, 1896, a further call was made, and none of the instalments were paid. The Bank proved on estate of A. O'Neill for £1978 12s, the amount due with interest, but the estate could not pay, and Lewis O'Neill was also unable to pay the debt. The estate of Jas. O'Neill was able to pay the debt, and Allan O'Neill, but for his bankruptcy, would have been indemnified by the estate against the debt. Lewis O'Neill declined to seek to obtain an indemnity and the Bank had requested plaintiff to obtain an indemnity for the payment of the said judgment debt, that the Bank might have the benefit of it. The statement of the defence said that the shares were held by defendants in their individual capacity in pursuance of the Act and not as trustees of the will, that the liability arose long after tin death of Jas. O'Neill, that the Bank made calls on defendants personally, and that the Bank was estopped from setting up that the shares formed part of Jaa. O'Neill's estate. 'Plaintiff claimed to recover the amount of calls from the two defendants. His Honour suggested that, as the amount involved was large and the case an important one, it would be as well to state it as a special case, as it was almost sure to go to a higher Court. Mr Campbell said the defendants preferred to have the advantage of his Honour's judgment. Mr Button said that the object of the action was to enable the Bank to get round a bankrupt who acted a3 a buffer between the estate and the Bank. His Honour asked if the claim of the plaintiff was this, that assuming the estate paid only 5s in the £, plaintiff claimed 20s in the £. Mr Button said that was the position. He would admit that the action was really ou behalf of the Bank of New Zealand. The shares in question were held in trust on the will of the late J. O'Neill. Mr Tole also addressed the Court for the plaintiff. Mr Campbell, for the defendant, said there wag a limitation to the arguments adduced by Mr Button, and it was this, that the right to indemnity existed only in a case of simple trusts in which a transfer or conveyance could be demanded from the trustee at any time, whereas the trust in this case was a special trust, and the cases cited by Mr Button did not apply to special trusts. After further legal argument his Honour reserved judgment.