DISTRICT COURT, REEFTON.

Inangahua Times, Volume IV, Issue 17, 18 May 1877, Page 2

DISTRICT COURT, REEFTON.

WzojiEOir, Max 1& J. 577. (Wore H's Honor J«t<l;;e Wos'on.) MACG V. LAPS AM AXD OTHEBS. This was a disputed paHno.'ship^ceoont involving it is said a considerable amount in mining and other transactions, extend' ing orer a lengthened period. On the ease being call on, Mr Button said lint the basis of ft settlement had been agreed upon by the parties, and if the Cotu't wo:ild grant a s'lorfc adjournment, he had every reason to believe that the difficulty would be settled privately. .\ll that reawineJ, was to arrange the details of t'te settlement, and to enable that I o be dune, he would ask the Court it adjourn for an ho'ir. His Honour said that he hid read tie declaration before the Court, and it appeared to Lira that, the partnership between the parties being admitted, it j was a mere mater of account. It was therefore at well that the matter should le settled out of Coart. The Court then adjourned for one hour. Upon the resumption of the sitting, Mr Butto* stated that the ease had been settled, and would therefore be withdrawn. Case withdrawn accordingly. Mr Button said that assessors having boon summoned upon the case, he presumed they would be paid ai the ordinary lute. Mr Guinness contended that the jury were not entitled to receif e full remuneration not bavin? beDn called. His Honor suggestsd that the question of payment of the j ury should stand over, and in the meantime autborites could be looked u», and if it were found that the

jurymen were entitled to remuneration npon the extended scale, they should receive it. KATES T. HAIL. Th's was an appeal from the decision of the Warden at Reefton, and was heard at the last sitting of the Court, judgment ha? ing since been given »t Holritika for ( the appellants. The question of costs was reserved by his Honor when delivering judgment, for arguraens at Eeefton, and came on as above. Mr Pitt, who with Mr Button, appeared for the appellant, now asked that costs be allowed on'the appeal, upon the common principle that costs were usually granted to the successful parties. After some argument, bi» Honor, granted costs, £5 55., together with costs of Court. In the matter of the united ba>x> of ' Hop a company. Mr Pitt ou behalf of the petitioning creditor, formally moved for an order to wind up the company. He said thai; Lis instructions were that arrangements wen in progress by which the company hoped to be in a position to discharge all liabilities without the intervention of the Court. He would therefore move that the case stand over srttil the next silting; of the Court. Mr Button who appeared for the company, would consent to the matter being adjourned. The parties were anxious to have the matter settled privately, and there was every likelihood of that being done. Matter adjourned accordingly to the nest sitting of the District Court, on the 14th of August. Be ABGTLB COMPANY. Mr Button, who appeared for the National Bank, the petitioning creditors, said that this was a similar case, and it Was proposed to treat it in a like uutmer, and he therefore asked that it might sta>«l over until the nest sitting of the Court. His Honour— l see by the papers that Mr Staite is tbe solicitor ia this matter, how is it Mr Button, that yon appear, are you instructed by Mr Staite P Mr Bultou was not awave of the reason. He (Mr Button) had been instructed to appea;-. His Honor — Perhaps Mr Staite you can explain the matter f Mr Staite — I am not aware of the reason why Ido not appear. lam sorry to say that by some mean? or other I hare fallen under the displeasure of Mr M'Lean, the liquidator, and "the o?se has been handed over to Mr Cut f on. His Houor— lt is a great pity that any misunderstandiag of this nature should have arisen. lam sure all the parties would nnd it nv-vo conven'eut to work together. lam aware tliat the local bar render very important aid iv these wind* ing up matters. Perhaps, Mr Button, yon mny be able to remove these little differences. Mr Button— Pilate ani HeroiJ your Honor. His Hono: — I am sorry to lieora tliat any difficulty of tlia kinJ sliouM hare arisen, because Mr M'Leau has been very successful in the discharge of Ids duties as liquidator iv the various mutters entrusted to him, and a good deal of the success may* no doubt, be traced to the able assistance he has received from tiaie to time from the professional gentleaieu here. lam glad to find by the applications before the Court, that creditors ami shareholders of companies fully realise the advantage of not forcing coinpanios iato compulsory liquidation. It is so much better for the shareholders to pay off fie debts, and to save the heavy coats of' liquidation by the Court. At the same time, it is a good practice for creditors to apply to the Court for winding up, as by that means the register is closed pending subsequent arrangements, acd so Ibe practice of dummying shares is prevented. As, however, I have already said, share* holders of companies have it entirely in theis power to put a stop to dummyism. but strange to say, they do not up to tho present time seem to- have though! fit to etercise that power. In Be ths sin jtuuvs toobz. compact (in liquidation.) Mr Button, instructed by Mr Pitt, appeared to apply to amend tho list of conlributories, by placing thereon (he name of Louis Davies, as the holder of 1250 shares in lieu of 250 shares as at present shown on the list. Mr Staite with Mr Guinness appeared to show cause against the application. Mr Staite said before the case wa<s opened, be would point out that tbe liquidator was by his own act estopped from making the application. Tbe liquidator had already presented a list to the Court, ►showing Mr Davies name thereon as the bolder of 250 stures. This liability was admitted. The liquidator now appeared i.i Court to attack his own list. He said that in the first list which the liquidator presented to the Court, Davies' name was down for 100 shares; subsequently that list was amended, nnd Davies' liability was reduced to 250 shares. Now the liquidator sought to disputo his own list. He said that the proper course for the liquidator to pursue in the matter, was to make out an entirely fresh list, which should be advertised at least 21 days before the silting, of the Court. In this case, all that had been done, was to serve a notice upon Mr Pavies that the present application would be made. If the Court upheld such a course, there would be nothing to prevent a liquidator placing a

contributory on the lisit for 1 share, and then at the eleventh hoar to apply in the present form to have the number increased to ICOO. Such a course was entirely against the spirit of the Act. His Honor— How against the spirit ot the ict. Mr Staite— The Act requires that a contributory shall hare at least 21 days notice of aolion. His Honor— But this case is somewhat different. Here the contributory is already on this list. If, however, you'feel i that the course taken by the liquidator is at all prejmlieal to your dieut, apply for an adjournment in the ordinary way. Mr Staite relied upon the Act, and did not think an adjournment was requisite. He said that if the Court bow ruled that the application was properly made, ft liquidator need never make out a list at all. He could merely set 1 share against a contribu lories name, and then at the eleventh hour step in and ask that the namber be increased to 1000 shares. His Honor— f am to ssnune Mr Staite that you are arguing upon some authority. Now torn eg lojat aot,h<m*y. ana let u»»en«W IS* it applies. Mr Staile would admit that he had do exactly analogous cases to refer to. He, however, rilieduponthsMiningCompanie* Act, by which it was required that the list should be adverti*ed 21 days < before the hearing, acd that had not been done in the present case. Hi* Honor — Bat it appears according to your own admission that Mr Davies has had more than 21 days notice of this application. Mr Staite— Yes, bat the spirit of the Act has not been complied with. It is required that the list should be adrertised. His Honor— What is the object of the 96 a section P It ii to fjnre notice to eontiibutoms. Now yon admit that notice has been given you— not notice by ad« vei lisement it \t> (roe— but personal notice which is even better still. Mi* Filt said that they were conleut to abide slrie.iy by the Act, and the application was iv perfect coi>for>ni(y with it. His Honor— With every reipeet for Mr Staite, I must say at once that the Conrt cannot agree with him. The 96th Section pf the Act provides fo/ tiio preparation of tbe list, and the publish* ing of it 21 days prior to healing. There is do provision there made for an amend* meat of the list, and in tbe face of tbe very distinct authority the Court has to entertain such applications as the present, be would not be aoaog in she interests of either efeditors oc shave* holders by patting them to tlw cost of another appicaiion. Mr Guinness woull ask whether iha Court entertomed *oy doubt as to the authority to deal with the matter in its niejeut form. His Honor— Net i\e sUsbtest. Tbe Court has merely to do justice between thfl parties, and ibe Lea^og w.'H therefore p"oC9ed. Mr Futton 0.-ouee^ed to review tt«j consent-? of the affidavits before tbe affidavits. Mr fltatite wou'4 f»k the Court to eonfiue liis leavued friend strictly to the Court. Mr Button said that they were content to follow- »he offidarU* ps elese is possible. AißVvits lad been procuedin all oases w'tem practicable, but in one cjse o;<> of lie nnr^ies liad refused to make an fflS i> vi', and it would Uie/efo"o be necessary fo I ..ke Itis evidence onlly. His Hwof felt in some difficulty. The C"tut liad t-> a retain extent tulitfied itself by »; ki (g a rale that all evidence should be upon affidavit, but it had been found necessa y on several occasions to depart i'oni tfufc rirt, mart *han once upon the jtjnlica''oi of If f Staite h:mself. Tkef could n<4 compel • man to make an affidavit if lie weft vnwi)ling,rad therefore it was necesxrj in some eases to vary the order. Mr Staite would not prets the objee* tion. He would admit that be had pressed the Comt to depart from the role in ceviain Instances. His Honoi* si'd tbat this wns precisely one of the cases in which, it was quite impo-sible (o male en iron role that woxiM fit pj'scsely. Mf Button srid ibat it was no doubt more convenient to both couasel and the Court tlwt all evidence should be upon affiVavU, bat when it was impossible to obtain affidavits there was no other coarse open but to adm't oral evidence. His Honor : There is a i a'e of tbe Supreme Court that where a man re* fuses to uwke i*n affidavit be can be ex* amined in tbe witness bos. Mr B ilfon, in opening the facts of the case, said, the gronndf upon which the application was made were that Davies was legal manager of the Company, and he made the transfer in the Company's books. This was not long before the. Company got into difficulties. When a transfer was lodged at the office of the Company it was implied that the manager obtained authority to register it. In order to show that the transfer from Davies to j Robertson and thence to Cooney was an exceptional one, it would have to be proved that it was done by the authority of the directors and with tbe knowledge of the Company. In this case the manager of tbe Company seeks to relieve himself of certain responsibility. He

was more intimately acquainted with the financial affairs of the Company than even the directors themselves, and if the directors were compelled to go through a particular form in order to rid themselves of their liability, how much more necessary was it in the ease of the manager. It appears that Davies did transfer certain shares, and farther that he did so to avoid) responsibility— this was openly manifest from the affidavit of Cooney. Davies knew that the Company was in debt. Robert son says he only agreed to accept the* shares' upon the promise that Daviea would find somebody else to take them, and that Davies did find somebody else, and that that somebody else was Thomas Cooney was to be eeen from the fact that the transfer from Robertson to Cooney was made out in Davies's hand writing. Cooney— a man of straw — was at the time he accepted Davies's shares heavily indebted to the Company for calls Jupon his own shares. Ceoney was therefore a defaulter to the Company at the very lime that he is alleged to have'purenased Davies's shares. The transfer states tM $10 pm*m~*~*eota-KKXWS3r W TJaftef as W consideration, the fact being that in reality no consideration whatever passed. The first affidavit he would read was that of Charles Robertson, which was as follows. I ** I, Charles Robertson, of Kumars, Is tbe County of Westland, in New Zealand, miner, make oath and say,— " 1. 1 have been informed by William M'Lean, of Reefton, in New Zealand, Liquidator of the above mentioned Company, that he has in his possession a document purporting to be a transfer of certain shares in the Company from Louis Davies, of Reefton aforesaid, sharebroker, as transferor to me as transferee. W 2. 1 never was a transferee of any shares in the said Company either by purchase or otherwise, bnt do remember on one occasion (the date of which I am un« able to recollect) that the said Louis Davies called me into his office, and asked me io sign my n«me for some' shares on hisf£ace6unt. I do* not know now many shares were mentioned, nor in what Com* pany they were. 11 8. The said Louis Davies said taat I wcnld not be responsible for any calls, and that if necessary he would get them transferred to some one else, and upon that condition I did sign the transfer forms. " 4. 1 never gave or received any eon* sideration for transfers of shares in the said Company, and I never was nor never was intended to be a transferee of shares in the said Company ; R-ud the shares then referred to were io be at the absolute disposal of the said Louis Davies, and it was nevm' intended .'that there should be any bo,ia fd* transfer thereof from him to me." "I, Thomas Cooner, of Reefto**, in the Inaagahua CouHy, in the Colony of New Zealand., hereby make oath, and say,— "1. That on or about the nijth day of March last one Charles Robertson transferred to me seven hundred and fifty shares in the Sir JuHns Yogel Quarts ftfiniag Company Limited. "2. That the transfer was bma fide, and I was placed on tbe Register of the said Company for the said shares, tbe same being numbered from 9751 to 10500. " That I still hold the said snares, a <d am willing to pay my snare of the liabilities of the said Compaay: 1 ' "I, Louis Davies, of Reefton, in the County of Inangahua, in tbe Colony of New Zealand, hereby make oath, and say,— " 1. That on the 18th day of February, 1876, I transferred to Charles Robertson 760 shares in (he Sir Julius Yogel Quartz Mining Company, Limited, numbered fvom 9751 to 10,500. 11 S. That the said transfer was bona fid*, and out and out, and that the name of the said Charles Robertson was placed on the share Register of the Company as the holder of the said shares. 11 3. That the Liquidator of the&aidCompany holds the transfer of the said shares duly signed by me and the said Charles Robertson." Thomas Coouey : lam a miser living at Boatman*. I remember signing a transfer from Mr Davies io myself. Davies told me that the shares belonged to Charles Robertson. I lust saw Robertson on the Kumars. It was tomo seven or eight weeks before Christmas, I was then working in Kumara. I had no conversation with Robertson relative to shares in the Yogel Company. Davies told me he bad some snares belonging to Robert* son. He asked me to take them and I consented. I could not say when it was. It was before I went to the Kumars. He said he put down the sum of £10, but I paid nothing at all. I can't say whether I paid any transfer fees. I have never paid the £10 to .Davies. I had 500 shuns in tbe company myself at the time. I never paid any calls upon them, and have been summoned for the amount. I made no affidavit in this ease to my recollection. I wss told a day or two ago that I had made an affidavit, but I do not recollect doing so. I did not know that I had made an affidavit until I was told. If I was drinking, I would not recollect. Don't recollect making an affidavit on the 29th of December last. A was drunk while I was in town, and caa't rtoeinber

making the affidavit produced. I cannot say what it is about, I was told yesterday that I had made an affidavit about the ihares. Never bad any scrip in my possession. 1 did not kuo* the numbers of the shares. : Cross-examined : . Recollect nothing about the affidavit. I iieirer spot* to Robertson relative to share* Paries told me that the shares beloaged to Robertson. I cannot swear whether the signature on the transfer produced is in my handimtin?. I took the shares thinking they were Da Ties'. I do not know whether I hold the shares or not. Don't recollect going to M'Lean'e offije to get the numbers of the shares. Mr Campbell summoned me here to the Court, Several people hare been talking to me about the ease. I cannot tell | the names of the persons who spoke to me about the case. The Bank of New Zealand hare got judgment against ma for £60. Nobody told me that if I gave evidence to connect Paries with this ease that my overdraft would be wiped off. It might hare been said to me that as I w*n heavily in debt to the hrnjr Ijtoili) Hm — - iriw»i%i trarnor give^Jvraenee. I said -. that I would tell the truth. It was Mr * Aiken who spoke to be about giving cvi« denee. I cannot say whether the Com* psny was in work w'uen I took the shares from Davies. Cannot say whether H wat in debt at the time. I know very Bttle about its aJbirs. Hare neve? spoken to Robertson about the shares. By the Court : I know Mr Davies for seven of eight years, lie was legal manager for one or two claims I was iv. His Honor: How came you to tak* Mr Davies* shares? Witness— Some time previously I had taken some shares from Mr Clinton and I sold them for £7, and I thought I should make some money out of Mr Daviea* shares. His Honor— How did you meet? Witness— Mr Davies e*me to mo and told mehehad some shares b the Company/ belonging to Roberson, and if 1 would take them I might make some money ooft of them. His Honor— Did Mr Davies first speak to you about the shares, or did you tell him yon wanted some P Witness— He apoke nVst about the shares, asking me if I would take tkemv sncT I said I would. His Honor— You did not first maktt him an offer to take the shares P Witness— No. Mis Honor— Did yon expect to pa* any calls on the shnres P Witness— l caa't toll. His Hpaor— Had you any means at tie timeP Witness— Not at the time. His Honor*»DL-l il» % Davies knoir ihatP # Wituess— I cau't say. I expect be did. His Hoaor— Were you indebted to the Compaay foi- calls ca yow owa sbarw at the t>me? Witness— l had paid no calls on ay own shares. His Houoi— When yon took tbe> shares, was anything said as to who wouß pay the calls P Witness— l don't recollect. His Honor— "You don't recollect." Now, witness, was there or was there not anything said at the time as to whether you or Davies was to pay tbe calls P Witness— Sothiug tint I recollect. His Honov— You are quite sure that Mr Davies dil not promise to see you secure PWitness— l don't recollect. His Honor—You must recollect. Was there anything said at the time about future calls. » Witness— l dou't think it. His Honor— Was this the first tram* action of the kind you had had P Witness— Yes. William M'Lean : I am liquidator in the natter of the Sir Julius Yogel Com* paay. I produce the order and the Kit of eontributortes in the company. On tbe 3rd of March, and before the transfer to Robinson, the first call was doe on the original 603 shares held by Cooney. The first call was due on the Sod February. There has been an erasure in the register, and the entry seems to have been altered, so as to fit t;e shares transferred. The first call was 31 per share on 600 shares, £6 65., and tbe second Sd, £4 3s. 4a% making together £10 Bs. 4d- Cooney does not appear to have been charged in the register with calls, on 1289 shares. In Robertson's account in the register, there are no calls entered to the secou*. There appears to have also been an erasure in Robertson's folio. Robertson has nO leger account. Davies account in the register agrees with his call account in the leger. > Cross-examined: I recollect Davies coming to my office in December, to search the register. I am sot certain that Cooney was presentat the same time. I gave Mr Davies the share register. I prepared » list of contributories in which Mr Davies name appears for 250 shares. The first time I became dissatisfied with the number of shares to Davies aaae was after I bad applied to Robertson for calls. I knew that Cooney was worth notatag. The reason that induced me to replaoa Davies on the list, was that the Bank of New Zealand, creditors in the estate, thought that there was a good efaanee of Baking Daviea liable* Mr Starts also

ufggd me to use e*«y exertion in *•»• matter. Louis Daf iea » I *» **» P B3^ ra « forested is ibis application, and late tatnager «f the Company. I haft filed hd affidavit in tbis Court setting forth that on the 18fcb FeJaruary I transferred 750 gbares to Eobertson. At that time only 000 eaii had been made, and the Conn paay vm not in difficulties. The Gora« pany was at work at tip time. The Coepaay worked up to May and paid wages. I held large interests on thai line, and in others, and I decided to get wl of some of them, I saw Robertson, and asked him if he would take (hem. He asked me if there was aay liability, and I told him that I had paid the call. Some time after Robertson came to me and laid that he cov.Ul not gel] the shares, aad asked if I eouM get any anybody to take them. I saw Cooney some time after, and knowing that he had taken tome shares from Clinton, I asked him if he would take them, as he might make some money out of then. He consented asd a transfer was preparA, and signed <^ssifmmmhet interests, and he had an overdraft at the Bank of Hew Zealand. Cooaey said the reason he did uot pay calls oa his own shares was that he had transferred them to the Bank, and would not pay calls oa shares he did not hold. There was no understanding at Hie time of the transfer from Robertson to Cooney that X was to sear© him- Heard after* wards that Robertson had made alßdurit, and I saw Cooney and asked if he would make an afidarifc. He eonseated, and accompanied me to M'Loan's ogee, where we got the number* of the shares. We then west to Hi* Staite'i office and instructions were given, and on the following day Coooey attended and swore to the ftffidarifc. C?oss*exflQimed ; Tiie debt of the Com* pany to the Bank of New Zm'ai.d op to Feb.iiary 10, 1876, was £150. On the 18th May it was increased by £1$ log. The amount of the first call was £230, and the feeond £136 163 <itl. 7ae first was doe. when I ivansHev.-cA, By the Court; I coaid nob say from meraofy how mash of tlie first call was ; col'etted. It was not an-anged by me j with the Bank that the overdraft should be defrayed out of the first call. I had not giren the Bauk any direct premise in matter, neither had the Directors to my knowledge, Judgment resetted, Me 9B« tin Jijuvn voa»z» oojtpak? (nr WQtJi cjunov.) Mi-BnitoHj i".s:-uoU.l hj Mi 1 Pi: t, for (he liqui'.Ltor moref for a.i. o-J?p to plao vhe name of BoWt I'ta^i Cu"i.jeu?<n t'w list of eoatribtt'orioi of i?je nbotc to-n^aiy, i.i yesprcfc to 50 > sh.i.-e v -, ulix-'i orijiuaily Vlood in (he books ot (be co n a n y, '■ i Ihfl n m<> of Mv &jtttn<3. ]rdtnorv\lti'->o'i "i« ft;i*rai ioa of Vraiiam M''Leau, w'aicN j ,i a t* f/'lviti . —1. Thai, the ?sjd FoWii, 2r?is G'a'l'ne was s »!i rcUoLUi' in t'ae co n a y f,o n t^ founditj^i, to the 2J«i of * ;. V, 187 G. 2. Tiirt lie was a director of i\\z co u.Tty, r.ud BOlfil «W fuel), and ;< • I \c ■'. rs C n i : I*, j rt the li«it meeting of t1! ■ o?", T.-liie'i wv< lieUl ou the 28 dof avo?», J'B7G. 3 Th;toi v'jo BI«t April, the said 11, Gut 1 ! c, pff c^d o transfer U J i uliJu-es w sha «•■> i» > t»y, -w'th vi liay'jg Oy»3Ti'S t'i» vqn .-. ,toj{ * ff tha ?uniu,';ooia w io; Af;t, A u>. • . -„; i bjß.ls. oui'i f!i I :.-iJii.i ill- ' ..lib- ofcber siiloTfhieh bet fortii j— l. '• i> v I ir.-i » «\ mot of the Co,u*i?uy, » id i'>?.t Lr a \\m cuicd AinU., aav 1 lort ', i.lt .'.'o . ;'. vt ;■ eof t'»« Com* p»ay,i r«'^n ■■ 1m? office of -eoto-. 2. r : u.-.i oa the 21at Apnl i t-.-i.i»ft>rrj ( l s'l mjr iukvett to the Cmnjvnjj i> t.l obu> a.-ii s t-i-eiot fi-om the manager (o: tli« cd p, iv RCuo^J^acd witb •eetion 21 of (heiot. At Jhi< s-ts^e the Court adjoarae.l uaul the foUonrinjj uiOifiitj^,