SUPREME COURT.

Evening Star, Volume VII, Issue 1984, 14 September 1869, Page 2

SUPREME COURT.

CIVIL SITTINGS. This Day. (Before His Honor Mr Justice Ward.) His Honor took his seat on the bench at ten o’clock. JONES V, rURTON AND ANOTHER. This was an equity suit. Mr James Smith appeared for the plaintiff, Samuel John Jones, and Messrs Macassey and Haggitt for the defendants, George Purton, secretary of the Scandinavian Water Race Company, and Thomas Staanstral Harvey. The plaintiff’s declaration stated that on or about the “25th of May, 1866, he then being an infant, and under 21 years of age, lawfully became the possessor and holder of certain shares in the Scandinavian Water Race Company, numbered respectively 13 and 14, they having been transferred to him by one Naylor Hillory, the consideration expressed being L 220 ; that on or about the 31st May, 1866, he siill being an infant, became the lawful owner of certain other shares numbered respectively 38 and 39, they having been transferred by one Michael Gaffney—the consideration expressed being L 22 0; that the plaintiff’s name was duly registered as the owner and holder of the said shares; that on the 4th August, 1868, the company, by the defendant Purton, its duly appointed manager, without the privity and consent of the plaintiff, wrongfully caused the said shares to be registered m the books of the company in the name of '{ho defendant Harvey, as the owner of them ; that on the Bth April, H6B, the shares of the company were divided into a new series, and the plaintiff’s shares were divided, and were numbered 53 to 56 inclusive, and 149 to 146 inclusive; that the said shor. s wrongfully stand in the name of the defend ■nt, instead of in the name of the plaintiff; that on the 11th May last, the plaintiff attaine 1 hD majority; that the company had, although requested to do so, refused to recognise the plaintiff as the rightful owner of the shares ; that, since the 25th December, 1807, the company had paid certain dividends which the plaintiff was rightlully entitled to receive, but which he had not received. The plaintiff therefore prayed that the twelve shares might be declared to be his property ; that all proceedings and dealings connected with these shares permitted by the company might be declared void ; that it might be ordered that his name should be registered as the owner of the shares ; and that the registrar be appointed to inquire as to all dividends declared in respect of them, the amount of such dividends not paid to the plaintiff, together with interest from the time of such dividends being due up to the time of their payment. The defendants, by their pleas, alleged that no consideration had been given for the shares ; that they were transferred to the plaintiff in trust and for the sole benefit of one Arthur D. Harvey, a relation by marriage of the plaintiff; that the name o the plaintiff, as the nominal owner ot the shares, was placed in the books of the company because Arthur D, Harvey was at the time a Government officer, and as such prohibited from holding an interest in mining matters ; that the plaintiff was always the holder of the shares solely as trustee for the said A. D. Harvey. The defendants ad mitted that certain dividends had been paid, but denied that the plaintiff was entitled to them. The facts of the case, as stated by Mr Smith, are shortly these The plaintiff is the son of Mrs A. D. Harvey, by a former marriage. She married again in 1856, and c?me to this colony in 1861. Her husband was gold receiver and mining registrar at the Dunstau, and she resided with him. The plaintiff, who was then about eighteen or nineteen years of age, remained in Dunedin. Mrs Harvey was the executrix under the will of her deceased husband, and in that capacity, from time to time, rec ived remittances from Victoria for the benefit of her two sons, the plaintiff and a younger brother. M rs Harvey having at the time no mode o >- investing the money, placed it at deposit in the Bank of New Zealand. Some time afterwards she was recommended to invest in the shares of the Scandinavian Water Race Company, which was then a promising investment. Accordingly Mrs Harvey, after consulting her husband, determined to invest in the purchase of these shares. She agreed to purch se a share from one Hillory for the benefit of her son; but before the purchase was made she insisted that the transfer should be brought to her before the purchase was effected This was done, and she found that two shares had been purchased instead of one. The husband explained that the second share had been purchased for a policeman named MTvor, who himself was prevented by the p lice regulations from purchasing and t at her son's name had merely been used to enable him to purchase it. The transfer being completed, Mrs Harvey paid the price of one of the shares, LI 10, by drawing out out of the trust monies LIOO, and by paying the balance in cash. Subsequently she purchased two more shares, for which she paid L 220, —LIOO out of the trust monies, LOO in cash, and LGO by an 1.0. U. given by her husband on behalf of her son, and which she subsequently redeemed out of the trust monies. In 1868, Mr and Mrs Harvey separated, but before leaving the Dunstau she discovered that by some means or other her son’s shares had been transferred in the company’s books into the name of her husband. She remonstrated with the manager of the company, who explained that he believed that the transfer had been rightly made, but if it were not, it had been done through the mis representation of her husband. The shares were entered into the company’s books in the name of the defendant’s brother. On her arrival in Dunedin a formal application was made on her behalf by her solicitors, calling upon the manager to restore the shares to the name of her son, but he refused to do so, thence the present proceedings. Mrs Harvey was placed in the witness box. Mr Smith at once proceeded to show that the monies with which the shares were purchased were trust monies. The witness stated that her late husband made a will, which she had read. The will was in the possession of her deceased husband’s brother in law. who refused to give it up, but permitted her to get a copy of it. He had since gone to the Fijis. Mr Smith submitted that he could now give secondary evidence of the will. Mr Macassey objected. There was no evidence that the copy was a true copy ; aud, even if a true copy, it could not be accepted as evidence when the original was in existence. The Court was entitled to presume that if the property devised, if personalty, the will had been proved, if realty, it had been registered. i Mr Smith claimed that the witness should .

be allowed to give her testimony on oath as to the sonrce from whence these monies were obtained. The Judge held that the will which created the trust must be first proved. Mr Smith thereupon consented to a nonsuit. STAMPER V. WILSON. This case was adjourned until to-morrow at ten o’clock. The Court then adjourned.