DISTRICT COURT, REEFTON.

Inangahua Times, Volume IV, Issue 58, 22 August 1877, Page 2

DISTRICT COURT, REEFTON.

Thubsdat, AududT 16, 1877-. (Before His Honor. Judge Weston.) 1$ THE SJATXEB OF THE DEFIANCE COM> ! PANY, AND THE APALICATION OF WIL" 1 Tfl^S. LYNCH. . i l^r Pitt, with Mr Staite and Mr Reid mpted. under section 35 of tbo "Mining 1 Companies Act," for an order direoting tjbe rectification of tbe register of tbe above company, by tbe removal therefrom of- the name of Georgo Holling- ; worth, in, respect to XOOO shares, and the ; su.bsti.tu.tioa &l, tbo, name of William Lynch, as the bolder of the said shares. He said there were, eight of the applica.tipnsjn all, w.hieh, ba,d been divided into two classes, there being threo in one class and, n>e in, the other. He was now proceeding w.ith the %sjb olass> I Mr G;uinnes.s with Mr South appeared to oppose thp application! and argument ensjued a« to whetb,er, th,e acl;ion : bA I di been rightly, brought. • Mr Gujnn,es^ pomplained; that he. had not been, served with fippips, of a^ davits, Mr Pitt pointed ouHbat this affidavits had been filed in Court, and; bad 1 , thero» fere, been. open. to. inspection., Mr South contended that the other side ihad shown discourtesy in npfc furnjabing copies of tbe affidavits. ; Mr^itt«iaid that it was necessary for 1 his. <?»&©. that the manager of tbo company, L. Dayiesj should be^jjreaenf; with, the register, to give evidence. Mr Davies had been servedi w.ith a subpoana to ofc« tend and produce tJio, register. He (Mr Pitt) therefovo. asked that the witness might be called u.pon ) his.subpce,aa. ] 'TJhe. w.itness was then, call in the usual way by the officer of the-Qpurt, bu.t failed ; t,p, appear. i His. Hpnpr. inquired' whether, any reason w.a& assigned, for,, tbe. npn«at,t,end' ance of th» mappger. I Mr Pitt said tho. e,xcupo. offtr.Qd was. that the w^lfle^ss^ had npf, been, t.endqiftd,

his expenses upon the service of the subpoena. Mr Davies was a town witness, and he (Mr P^t) was given to understand that b,e was in Reeffon, but keeping oqt ftf the way. The Court was therefore jnvjted to interpret his absence. After further argument, the case was adjourned until the following morning, in the meantime a fresh, subppana to be issued for the witness, as well as notice upon the company of intention to pro» ceed upon a motion for a rule nisi. Upon the resumption of the sitting, M.v Pitt said that after th,e adjournment ■ subpeenas were taken out, and placed in the hands) ofTtba bailiff, as. also a summons to the manager's clerk. The bailiff had since filed an affidavit of hie inability to effect service upqq the manager. The subpoena had, therefore, heen left at the manager's last known place of abode. The witness was again called upon his subpoena, and failed to appear. His Honor said that in his opinion the . manager'of the company was taking a most ill-judged course, and whoever was advising him was as much to blame. If the manager was persoaally interested in the case, it was his duty to. sink bis individuality and attend tbo Court, and as far he wa3 able, see that all shareholders .ranked alike. Whether the flrst summons was good or not, out of deference to the Court he should have attended. What was the Court to infer from his abscuce ? The Court would infer nothing, but ty poujd infer a good deal. He had seen Mr Davies in Court on many occasions, and considered hung too, much a man of the world not to attend after the expressions thrown out by the Court. If only out of respect he should haye attended. In reply to his Honor, Mr Pitt said that the manager was perfectly cognisant of the nature of the evidence he was, | required 1;o giro, as the proceedings had been taken before the issue of the summons. Mr Pitt said he was himself a shareholder of the company and had inspected the register, and could file an affidavit of its contents rerifying the material averments of the application. His Honor said if a short adjournment was reauired, it could go. In the mean time a fresh summons could be issued, and, if considered necessary, supplementary affidavits could be filed. Upon the Court resuming, Mr Pitt said that no progress ha,d been made 'in regard to securing the attendance of the manager of the company. Hia Honor inquired whatcdurse it was purposed to take in the case. Mr PUt was driven to proceed under section 127 of the " Mining Companies Aot. He would launch, the case and then ask the Court to grant a rule returnable on Monday. He was in a position to proceed, although that did not lessen the contempt of the mauager, and the Court would be. asked to reoeive seoondry erideucoof the contents of the register. He thought he might eren go further and ask the Court to make the rule absolute. He then opened the applicant's case. The > afgdavit of Wyiia,m,Lyndh was was follows: — « that prior to the 19th Dumber, 1876 i I was the hpldpr of 1000 shares in the 1 Defiance Company,. Prior to that date . the, calls of several of the shareholders iwere allowed to run into arrears } the 1 shares were offered at auction, and. there being no. purchasers iot the shares they were bought in for th,e company i that no distinctive notice waa givea regarding the sale of tb.o,.aaid shares, or the. numbers ; thereof, and the said, shapes, have nerer ; been sold by auotipn, bu,t have been transferred to one George Hjollingworfch, said to be of Eeefton;. that J hajsfe made enquiries concerning the whereabouts of the a_aid. George Hollingworth andi can, ascertain nothing of him, further than that he resides at Ballarat, and is. a brother-in-law of C. Mirfin, of Reeftos,. who is a director of the ssid company; that I applied to Louis Davies,. the, manager of the company, for the. said shares and offered to pay sums due thereon, and was told that I had no shades in the said company, and the manager refused to give me any information. I am ready and willing to pay any sums due on the said shares." Mr Pitt dwelt at length upon the law of the case, putting the ease very ably. His Honor reserved judgment until Monday morning. , The Court then adjourned. .In the Matter of the Defiance Cojspanx» ' and William Lynch and John ßarer. 1 This was an application for a rule nisi i calling upon the Compaay to show causa iwhy the names of Lynch and Baker shoujd not bp entered upon the register of ifche. abor© Company aa the holders of 1,000. and 2000* shares respectively. ■ The rule was argued on Friday and ! Saturday last, anji hia Honor reserved judgment until Monday morning, when he , delivered the. Moving judgment :— The Court was mpved under section 35 of "The Mining Companies Act, 1872." :for rules, calling upon the company to show pause why the natnefl, of the parties ; should; not be. rexent^red oa the. register of shajrchpldera, in. respect of pertain ■ parcels of shares in. the corporation. The affidavits read, in Lynch's cos.c admit a forfeiture for non-payment of calls (aoefcion 54), but dpny, firstly the sufficiency of the advertisement for stje (^ect.ion, 55), &c, &c, and, secondly, the right of the., company, being, mortgagees, to, purcbast, for themselves, the purqbas^ bj them,

being proved, as was alleged by Mie buying i in, and subsequent private disposition to a third party. In the second case the ' affidavits concede a forfeiture, suggest ; lika irregularities (section 55), and advise j the registration of the shares as tho property of the company- In both instances ' the manager, has refused to receive the calls admitted to be in arrear with the expenses and to return the property, as it is argued he was bound to do under tho 56th section of the Act. Sis similar, cases are also before the Court. To define the class of casea which can be safely adjudicated upon under section 35 might be at this moment as inexpedient as it is unnecessary. The only question which is incumbent upon me to answer under the circumstances is whether, if the rules ware made absolute, they could be final in character, would be conclusive between the parties, and insure the re-instatement of the applicants as registered shareholders? Admittedly until payment of calls and expenses due upon the shares has been effected relief cannot be obtained, admittedly the amount of the charge has not been ascertained, and as the rules if made abiolute could but be drawn in the terms of the rules nisi, they would be, in my opinion, incapable of enforcement, were resistance offered, through their vagueness in regard to the extent of the applicants' liability. Thus, I think, the question must be answered in the negative. Upon the evidence placed before me then, and in the absence of an Equity Jurisdiction attached to this Court, the Supreme Court must be the only asylum for the applicants. The claim fbr relief being established in a snit, accounts would be taken, I presume, and the amount of indebtedness being ascertained finality would be given to a decree fer the rectification of the register. It may possibly be tbe ease, aa was remarked by the learned counsel in the course of bia able argument, that owing to distance, the infrequency of the sittings, and the costliness of a suit in the Supreme Court, men in the position of the applicants with but limited means are practically unable to protect their property, and avenge their wrong ; yet whilst this Court would deplore the position, it has but a plain and dry duty to perform— to dispose of cases fts they are presented. For a remedy for the 'evils suggested, both counsel and litigants, must be referred to the legislature. In the present case, therefore, at all events upon the point mentioned, I feel bound, and not without regret, to refuse the rules. Boles refused accordingly. In antwer to his Honor, Mr Pitt said he did not purpose railing on the other applications against the Company. Mr Guinness, who throughout the hearing had as amicus curicte watched the interest of the Defiance Cempany, applied for costs in the matter. His Honor said he was of opinion that no costs could be grnnted in the case. The manager of tbe Company had been subpoenaed to attend and had failed to do so. The Court could from remarks which had fallen from Mr South and Mr Guinness infer Hint the minuter had acted under instructions. It had been said that the ease could not prooeed without the manager being present, and for this reason alone the caße bad been put out of Court. What the merits of the case were he had no m»ans of knowing, and could, there' fore* offer no opinion. All he could say was that tbe action of the manager appeared to him to be very ill-advised.. Mr Guinness said that the Court was only in possession of one side of the case. His clients had a defence upon the merits.. His Honor— All I can say is that the manager of a mining Company is an officer of considerable trust, and should appear in a thoroughly independent position. He should not be influenced by either one side or the ootherr r It was hie 'duty to appear bore and give any informa* tiou reqaired, and it would then be for the Court to judge upon which side the bona fides was. The second Bubpcena issued for the attendance of the manager of tbe Company was seen by me, and how can I come to any other conclusion than that be purposely evaded service. I cannot allow costs. In the Matter of the Rainy Cbeek; Com* , pant (in liquidation) and Peteb I PUBCEI»L. Mr Reid on behalf of the Liquidator, mpved that the name of Peter Purcell be placed upon the list of contributories Sof the above Company in respect of srjO shares alleged to have been transferred to j one John Hulpin. • Mt Guinness appeared to oppose the , application, on behalf of the transferor. The case w,as partly heard at a previous sitting, buj; adjourned) to, enable Mr Guinness to call 'additional evidence as to the precise, date- of the presentation of the transfer for registration. He called Patrick Brennan—l am a sharebroker in Beefton, and in Jjuly, 1876 i wao. manager of the. Rainy. Creek Company. About the eniof June of that year, I received a letterjfromy Purceli enclosing a transfer. [Lsttbr read.]i A few days. later 5 received the transfer fee* and . calls, from Purcell, and replied returning him a receipt. In that letter Unformed him of the resolu. tion passed by the directors, as. to the refusal to register transfers. The scrip was, written out in the name of Hjulpin and sent in to Guinness, and. Warner, Eujpins solicitors. Tho transfer was not entered until the 23rd of August. On the 2nd* of November, 1876, in reply I wrote to Guinness and: Warner in-, forming them, tfcat the eorip bad been made out, but had not been, signed by the directors. I; never saw Hulpin to my knowledge. As manager of the Company I had no objection to the transfer. There Wfls a. rule ia the Company that all calls due were to be paid before a transfer could be registered.. This, was the whole of- the,, evidence tendered. Mr , Reid addressed the Court, shortly, pointing out the reasons wijch, had ; in« duced the Liquidator to regard, the transfer with suspicion. He bad made inquiries relative to Hulpin and could not ascertain anything definite concerning him. Though, P,urcell alleged to have transferred the shares on a certain date there was documentary evidence before the. Court, tha{; h,e had paid a. call struck

after the date of the aliege&ytransfer. There was also evidence that after the date of the transfer. Par-cell- had writtento the manager of the Company request* ing that, the scrip should bo forwarded to him (Purcell.) tf Mr Guinness replied that ?he , had himself seeu and spokea to Hulpin, and wa3 therefore in & position to;?say that the latter was not a myth.^^That Purcell had paid calls upon the.'c-sh'a'res was not denied, as it was a rule of the Company that no transfer could bo regis-. tered until all calls had been paid. His Honor reserved judgment until 3rd September, when it would be delivered in Greymouth. In the Matter of the United Band of Ho?e Company, and" the r-PattttßK of S- c 5^* K of New Zbalanp. j, fap tue petitioning creditors moved for an order further adjoqramg he bearing of the above -petition until the next regular sitting of the Court. He said, that sfoce the potition for winding up had been lodged, tho debt of t-e Bank of New Zealand, had been reduced to something like £130; and there was every probability of the balance of the claim being paid at an early date, and therefore, with the concur* ence of the Company, he moved for the order of adjournment. . ' Petition adjourned to .the 15th November. ■ ' ■ In the Matter of the- l?Aimp Gsski, Go*f< pant (in liquidation), and Geosge Mason. Mr Staite said ttfaT ap^liojmi -moveS ' that his name be struck* off the Jist of contributors of the above Company. Tho case was heard at the last sitting of the Court, and judgment had since been dei livered in Greymouth ordering the removal of applicants name as prayed for, but the question of costs had been reserved. He now moved for costs. His Honor said that his note book of the proceedings of the last sitting of. theCourt having heen forwarded on to Westport, he would have to ask the application to be renewed at the next sititns of the Court. M,v Staite consenting to this course* the Court then adjourned to the &h. September next.