The Daily Southern Cross

Daily Southern Cross, Volume XXVI, Issue 3997, 14 June 1870, Page 3

The Daily Southern Cross

LUCEO, NON URO. If 1 have been extinguished, yet there rise A thousand beacons from the spark I bore.

TUESDAY, JUNE 14, 1870.

We cannot altogether concur in the judgment delivered by the Bench on Friday last in the case of Otway v. Armstrong. Satisfactory though it is to find that the Justices set their face against giving judgment for an amount so absurd as compared with the liabilities of the company, we confess that we agvee with Mr. Kees that that absurdity was not sufficient cause for the dismissal of the case, supposing that any legal claim whatever existed against Armstrong in respect of the shares in question. Had the magistrates made an older, as prescribed by section 38 of the Mining Companies Act, 1865, for such an amount as would probably meet Armstrong's proportion of the Company's debts, we think they would have been acting strictly in accordance with the law. As it is, it appears that they have laid down an entirely new legal doctrine, namely, that where a creditor sues for an unreasonable amount, that is in itself cause for debarring him from recovery of whatever sum is justly his due. It is evident from the thirty-eighth and thiruy-ninth clauses of the Act that the framers of the measure intended that the first order of the Justices should be in excess of the actual amount that would be required if all the contributories were solvent ; but that no such amount, or portion of such amount, should be enforced except under warrant issued in pursuance of such order, and upon the oath of the Official Agent that he absolutely required the sum named. The Bench seem to us to have confused the process prescribed by the first clause we have alluded to with that prescribed by the second. Had it been in contemplation that in this preliminary action for an order, not a ivarrant, the exact amount reqxiired would be taken into consideration, the thirty-ninth clause wonld not have been inserted at all. To our minds judgment should have been given plain tiff for a reasonable amount, provided of course that no other objection than that of amount claimed was proved. There were, however, two other points raised in this case on which the Court did not enter, but which are nevertheless of the last importance to tbe public at large ; the first was — What constitutes a shareholder, and when does a person cease to be liable for shares he may have held at a previous time ? On this subject the Act speaks so plainly that we cannot xxnderstand" how any doubt should have arisen. It is stated in the tenth clause that the Gazette in whioh the memorial was advertised shall heprim&faoie evidence that any person named therein is a member of the company. The thirtyseventh clause states that every present and past shareholderin a registered com* pany shall be liable to contribute to the assets of the company to an amount Buffioient for the payment of the debts and liabilities, subject to the qualification that if he has ceased to be a shareholder for three months prior to the order for winding up, he shall not be so liable, and also that he shall not be liable for more than the amount, unpaid upon his shares. It is evident enough that if transfers of shares, subsequent to, or immediately precediug, the order, for winding Up, were .permitted to cancel previous liabilities, no company's debts ever would be paid; jnasnrach as the shareholders would all ~ ; make iransfei'S to dummies, r - >

But the most important point of all was that in connection with the paidup capital of the different companies. The argument of Mr. Rees on the subject was as follows :—": — " In .the present " case the Bench was aaked to fix Mr, " Armstrong's liability at £376. The 11 defence would probably be set up " that part of this sum was not due by " the defendant ; that he had 80 £5 " shares, and on these £3 per share had " been, paid tip, so that he was only " liable to pay £2 per share. He (Mr. " Rees) would, however, prove that the " £3 per share paid up was not in " money or moneys worth. He would " draw the attention of the Bench to " the sth section of the Act of 1869, " which provided that the paid-up " capital must be either in money or " moneys worth. Before that section " was passed, mining companies were in " the habit of assigning so much as " paid-up capital without any actual " j)ayment, but that, according to the " new Act, was irregular." The following is the clause of the Act referred to:— Clause 5. In every memorial to be hereafter lodged under section ten of the said Act the amount paid up in cash'shall be distinguished from the amount allotted in paidup shares or partly paid-up shares (if any) but in all memorials heretofore lodged under the said section the bona fide amount of paidup or partly paid-up shares given in exchange or payment for any claim or part of any clai~n or any share or interest in any claim shall be deemed and taken to have been truly stated as an amount already paid up. We certainly cannot see that there is anything in this clause to justify the argument used by Mr. Hees. In the first place it was necessary, according to his own statement, that he should show that this paid-up capital was not represented by moneys worth. It was the very argument which was always used at the time that so many companies were being formed last year — that a certain amount should be set down as paid-up capital, in order to reimburse the shaieholders for the value of the ground which they ceded to the company upon its formation. That a ridiculously-exaggerated value has in many instances been set upon pieces of almost worthless ground is true, and this we believe is the only reason why the Act requires that the value set upon the company's property-^-in other words the capital paid up, but not in cash — should be distinguished from that absolutely paid in cash. By this means the public ai*e enabled to judge for themselves as to the bona fide nature of a new enterprise, and whether it is merely put forth at an absurd ] valuation for the purpose of selling the shares. If it had been intended to effect anything more than this, it is inconceivable that our Legislators would have gone so far out of their way for the purpose of rendering themselves obscure. If paid-up shares were not to be recognised, we may be sure the clause we j have quoted would have declared as much, Unless our interpretation oj this is correct, we aie driven to the conclusion that the Assembly has purposely set a trap to catch the unwary, inasmuch as in the memorial a statement of the amount of paid-up or partly paid-up scrip is required, and it is ridiculous to suppose that such an expression would be used unless the possibility of such a description of shares being in existence was recognised. To our minds the form of the memorial (schedule 0 to the Act of 1869) is conclusive in favour of such scrip being legal.

We continue our extracts to-day from the Weekly Despatch of April 17, and the Illustrated London News of April 16. The Criminal Sittings of the Supreme Court were continued yesterday. Alfred Boonstra, iudicted for having stolen a quantity of jewellery, was found guilty, and sentenced to twelve months' imprisonment, with hard labour. George Gage, a half-caste, was convicted of forging and uttering a cheque for £5. After the prisoner addressed, the Court, his Honor sentenced him to two yeava' imprisonment, with, hard labour. The Court adjourned until 10 o'clock this morning. The very great improvement which has been effected by the City Board in the footpath in Symonds-street, between Wakefieldand Mount streets, is fast being destroyed by vagrant cattle running upon it. Yesterday morning we saw no fewer than six head of heavy cattle at once walking along it, and sinking deep into the soft earth. Those in authority should put a stop to this cattle' nuisance. Alexander Brown, of Parnell, has filed his schedule. The meeting of the' creditors of William James Casely has been adjourned until Saturday, the 18th instant. Thomas Macffarlane, Esq., Provinsial Trustee in Bankruptcy, has become trustee in the estate of- Simeon Lewis Lazarus. The same gentleman has also been appointed trustee in the esbate of Alexander Hamilton Hunter, Parnell. Tenders are invited By his Honor the Deputy-Superintendent for the erection of a bridge over the Waikato at Cambridge, and over the Karapirau Creek r near Cambridge, and forming approaches to the same. We urged some time ago upon the people of Auckland the immense advantages that would follow the establishment of a woollen mill in Auckland, and we published extracts from the Geelong Woollen Company's report showing that the dividend on the year's transactions amounted to 1§ per cent. As to the profits of woollen manufacturing, we have also very striking testimony from the proprietor of the Mission Woollen Mills in California. These mills were begun with a very small amount of money and machinery in ) 859, and had to struggle against all the difficulties incident to starting a new business when interest was high. Yet these mills have run steadily ever since, increasing their capacity to twenty seta of inachinery, turning out 6,000,000 dollars' ' worth of goods, and netting dividends td stockholders averaging 1$ per cent, per month on oapital invested, besides paying for the extension of buildings, land, and machinery, and allowing 7k per cent, commission on sales, A writer in the Australaiian thus speaks of Bishop Selwyn :->-'/ This great change was entirely due to the quality of the men engaged in the missicttaryienterpriso. Bishop Selwyn embodied their best characteristics. A cultivated gentleman, hfe had the personal qualities to command the respeofc of the savage while undertaking to teach him. He could swim rivers, traverse the tangled forests, go without food, and stand hardship with the wildest son of the wilderness. He was high-souled and natural, and they believed in him. He could cast his mind into theira, a*nd talk to them like a man, with no nftinby-pamby cant or smifnV. In a word, he gave them Christianity in a masculine and attractive 3hape, <and did not make it ridiculous or disgusting ; so good fruit j followed.", . { In' the case Jordan v. Ngakapa, referred to j the arbitration of H. Ni Warner, Esq., from ; the last civil "sitting of the Supreme Court,--we believe the sum awarded to plaintiff is* £563 15s. Bd.*>rid costs.

At the Police Court yesterday two drunkards were fined. A charge of larceny against a man named Harper waa dismissed, at the request of Mr. Inspector Broham. Francis Falcon, charged with stealing a, quantity of crockery, &c, from the premises of Messrs. Winks and Hall, was remanded. It will be seen, by our advertising columns, that owing to a paragraph which appeared in our issue of the 11th instant, copied from the Post Magazine, the Auckland agent of the Monarch Insurance Company will decline further insurances until advices have been received from the head office. We presume the fact of an application to wind up a joint stock company by no means infers it to be in difficulties. Such reasons arise at times on the part of shareholders to reconstruct its constitution, extension of capital, &c, which, as this is an association of high standing, may be found to be the case. The District Judge (T. Beckham, Esq.) was occupied all yesterday. In the morning, the case of Duffy (iVTr. and Mrs.) against Macready was concluded, counsel on both sides addressing the Court at very great length. It will be recollected that the action (one for £100 damages done by a dog) was gone fully into on a previous sitting. Judgment was reserved till next Court-day. The afternoon was taken up with a claim against a native by Thomas Craig, of Whangapoua .Saw Mills. It will be concluded this morning at 11 o'clock. The rest of the business was adjourned, by request, till next Courtday. It will be seen that Messrs. Thomas and Barraclough, of the Star Mills, Great North Road, are about to]supply a want much felt in many rural districts — the practice of gristing. Many settlers would willingly grow as much wheat or other grain as would supply the wants of their own families, if they could conveniently get it ground for a moderate charge, who would never think of growing sufficient to make a living by the sale of grain. By this step Messrs. Thomas and Barraclough will do much to encourage the growth of cereals in the North, and will deserve the thanks of all country settlers. Were their worthy example followed in other districts much general good would result from the adoption of the gristing plan, instead of selling their grain to the millers and afterwards purchasing their flour from the stores. We wish success to all such endeavours to promote the settlement of our country districts. The Provincial Secretary, Dr. Nicholson, accompanied by Mr. Warden Fraser, proceeded to Coromandel yesterday. The Thames Advertiser in a leading article sa yg :—" : — " Mr. Ofcway will have to try another tack than that which he has hitherto sailed on under the wild steering of Mr. Eees." A meeting of the Auckland Acclimatisation Society was held yesterday, the proceedings of whioh will be found reported elsewhere. A meeting of the creditors of H. S. Meyers will be held this day, at the offices of Messrs. Combes and Daldy, at twelve o'clock. Notice is given by the Provincial Secretary that in future the hours for issuing and receiving powder at the magazine at Mount Eden will be from 8 to 11 in the forenoon, and fiom 1 to 3 o'clock in the afternoon. On Thursday evening Madame Winter wil g've a vocal and instrumental concert in the City Hall, under Madonic patronage. Parties having claims against the estate of R, J. Davidson, Tararu, are requested to send proof of the same to Messrs. W. J. Vance and Co., on or before Friday next. Those having accounts against F. G-. Shadfoith are requested to send their claims in to Mr. Elmslie Stephen without delay. In the room in which the Auckland Institute was held last night we observed a very neat drawing, made by Captain Heale, Inspector of Surveys, of the eclipse which will take place towards the end of the present month, and which will be visible in Auckland. The drawing shows the form in which the shadow will be visible to observers here. According to the established rota, Messrs. H. H. Turton and James Williamson should be the presiding magistrates at the Police Court this morning. A meeting of the creditors of Mr. H. S. Meyers was held yesterday. The proceedings were private.