RESIDENT MAGISTRATE'S COURT.

Nelson Evening Mail, Volume VI, Issue 222, 19 September 1871, Page 2

RESIDENT MAGISTRATE'S COURT.

[Before J. Sharp, Esq., KM. ] r ; Poulson v. Nathan. Actioa to recover £75, the value of 15 shares iD the Perseverance Company. The following judgment; 'was .delivered by the Resident Magistrate on Saturday last : — ■ "■-•-•. ■••■- In this case; the plaintiff seeks to recover from defendant the value of 15 paid-up shares in the Perseverance Gold Mining Company alleged lo have b'en wrongfully converted by defendant to . his own use: The plaintiff 'States that about thejj 22nd of February- last he deposited with, and transferred to, defendant 35 .paid-up shares in the said company as collateral security for an advance or loan of £40 on a Bill of Exchange discounted by defendant; 1 payable three months after date, and that it was ! agreed that on repayment of the £40 the shares were to be transferred to him. The evidence given by him is in support <of this declaration ; he states that he only got £28 out of the £40; the remainder being kept back for discount, charges, fees of transfer, . &c, and he gives a history of the transaction. The evidence of the defendant is in direct contradiction ; he states thafe lie purchased -the; ; shares for £40, having refused to advance money on" them ; that, therefore, they were transferred to him, and that at the-, same itime he agree<l .that if 'plaintiff retired the said bill at or before maturity he was then to re-transfer the sharesito-plaintiff, tut that if he failed to^'meet- the. bii.l;£h>'> shares were to remain absolutely his property. \ TJie plaintiff dishonored the bill, "Wd, defendant 'immediately retired the same, having himself discounted it, and he then ; sold 23 shares;to recoup ; /himself, or probably to "meet" thel biU, ;for £.48*. .105. Presuming the defendant's statement to be the correct one, it appears clear 'to: me that the case should be decided by- the -cases, cited by defendant's counsel? time being essentially the' essence of the contract; but there; is ,in the present ease a very great difference between it and those alluded to; in the latter the deeds or agreementswere in;wrjting, and the terms. therefore notjdisputed, the -whole question turning upon the application of the law to the facts; here, at the very outset, 1 the' terms of the 1 agreement are disputed, -the plaintiff holding to* one version, viz.;. that the shares were and transferred in the- nature of a security; thei defendant to- the ' other version of a sale. : : ■;■••••;.■• , As regard's" the'transfer of the- shares, I do not attach: mucb;importanee to that, as itappears to me'tobe- the ; Dnly-wayj as thei'witness Augarde ■ pointed out to defendant at the time of- the tranß ; fee, in which he could secure -himselfi so , as to have the power of sale in case of default in payment of the .bill; the mere deposit on lien would not have given him such power. ' f ? I ara at a loss to see what- "was Hhe object of the bill of exchange except for the purpose mentioneii^by *■ plaintiff.^ If defendant^ bought the shares for £40, as he professes to have done by the entry in his book, the plaintiff might have got tbat sum in full, and not hav.ejbeen mulcted of £12, or, even as the defendant admits, of £6 for charges.;,* iThq. bill was not necessary. If defendant's statement be correct, why did hevnjcit protect .himself.,! by a simple receipt from plaintiff at the;, expense of Is., when there could not haje .been, any misunderstanding. { j iri w-ifi r'j* ;>: ; p:-.'^ -'i The whole <iues^flntnt!ns.iupon:, what were the real facts of the trß>ngaction n ;»nd:[not only does the plaintiff's version correspond most with the surrounding circumstances^- the case, but the weight of evidence is clearly and- strongly in his favor, borne out as he is by thejW;u;ness Augarde, who got from defendant himself tt a.s, .the time the nature of the transaction, /; ui •i>:w>ls. ! The jvisgwvkMnihhhfm-t&>fr aud c ° B . ks £7 I6s., t wi|;h within one week. _J_