DISTRICT COURT.-

New Zealand Herald, Volume VII, Issue 2023, 14 July 1870, Page 4

DISTRICT COURT.-

(Before Thomas Beckham, Esq., District Judge.) As aljinirned silling of this Court was bold yesterday. lewis broth ens v. Campbell and ANOTHER. Mr. Mar.Cormick applied on Monday, o'i behalf ot defendant s, for u re-hea' inic "f this case, in which judgment passed by default. Mr. Wynn asked lor time to supply allidavita ftgai- st granting the application. Mr. Wynn now showed cause against granting the application. Mr. MacCormick said the practice of the Supreme Court was, where judgment was passed by default, and application was made for a new trial, to grant a re-hearing, unless good cause was shown for refusing the application. His Honor thoughl[i lie whole matter wa3 a misapprehension. That being the ease, he would grant the rc-liearing upon the defendant Paying the costs of the application. DAWS OF HOl'E Gor.n MINING COMPANY V. CROMUIK. Claim £39.—Mr. Wynn unil Mr. Weston appeared for the plaintiff. Mr. llesketh for the dolcndant. This was on action to recover certain unpaid capital, and also a call made by the directors iu accordance with the Act. The facts of the caso are, briefly, as follow :—Last year the claim known as the Dawn of Hope was formed into a company. A certain proportion of the shaies wore taken up by tho proprietors ol the ground. A prospectus wa9 issued, offering uualloted shares to tho public, at £4, leaving £1 to bo called up by tho directors. Tho following docuinen s were produced : 1. Receipt for £25 from defendant, being a deposit of 2s. a share, dated the 7th of Juno, 1869, and signed by Mr. Reader Wood ; 2. Kcceipt for £12 10s., being a secjnd instalment of 10s a share, signed by Charles Tot hill, atid dated tho 9th of July ; 3. Kcceipt of £12 10s., nnyment of a third instalment., dated the 30th of September, and signed John Stoddurt, pro Charles I'othill.

The defendant answered by putting in tho usual pleas, namely: not a shareholder; not indebted for calls ; call not made in accordance with the rules; shares not allotted, as alleged, amounting to a denial of ull the material allegations. Mr. Thomas Russell, a director, proved the rules of tho company, and that twenty-firo shares were allotted to tho defendant j also, that one call had been made of 7s. 6d. a share. Mr. Crombie had paid £2 each on his shares, according to the receipts which he held. John N. Crombie proved the application for shares, in respect to which he was now sued. He said ho paid £50 upon tho shares. Mr. Header Woud represented the Dawn of ITo(.e as something "gorgeous. (Laughter.) Could not say thero was any false representation, except that thero was no dividend.

Air. Russell was re-called, and cross-ex-amined by Mr. Ilesketh in respect of the manner in which tho rules were made, lie said a large majority of tho shareholders in number and value signed the rules, 'l'here might be one or two shareholders absent, but not more.

At this stago of the proceedings n legal contest took place between the counscl on either side. Mr. Wynn contended that tho defendant's plen, to the cflect " that the coll was not mndo in uccordance with tho rules," was an admission that thero were rules, aud those rules had been already proved by tho witness. Mr. Ifesketh contended that he had a right to cross-examine as to the manner in which the rules were made : it was open for the defence to say there weto rules but these were not the rules.

Witness : There are 110 other. The rules wero made with the consent of every one of tho shareholders of the company. Mr. LUsketh asked whether Mr. Russell and Mr. C. J. Stouo voted by proxy for the Thames Gold Mining Company. Mr. R.issell: You used tho word " meeting." What I said was that tho assent of every Bliarehol ler was given to the rules. Mr. atone and myself a 'ted as directors of the Thames Company, and we fixed the common seal of the company with their authority.

Ilis Ilonor ruled that the manner in which Ihe rules wore made was not iu issue, and tho p.'iut could not bo raised.

Mr. Weston put in copies of the newspapers containing tho advertisement announcing the making of calls, under tho 30th rule of the company.

Mr. Ueskelh objected to tho newspapers being admitted in ovidencc. The objection was overruled.

Charles Wesley Buller deposed that ho was a clerk in the Thames Gold Mii.ing Company, and waited on tho defendant to demand the unpaid capital aud one call of 7s Gd. Defendant refused to pay the money. Mr. ilesketh said he would not call any evidence, but ho contended that the plaint ill' had not proved his ease. Mr. Russell, in his evidence, said that when tho £1 should be paid up Mr. Crombie woul.l bo put on the registry; so that Mr. Crombie, not being a shareholder, could not bo called upon to iind any portion of tho unpaid capital. Nor was there ovidenco that tho calls had been duly made in accordance with tho rules. There was a provision that one director must retire ; was it proved that the call was made by the board of directors of the year wh«n tho call was made. The application for shares was not of itsolf sufficient, there should bo a response by the com pany. Tliero should bo a notico of tho allotment, and somo signature showing acceptance on his part. True, his money was taken, but tho contract was not binding, as the company ha l not thought (It to bind him, that being so, ho was at liberty to withdraw. But there was a fatal objection. Tho contract, if ever there was a contract, was " to tho present proprietors of tho mine," Messrs. Stone, Aickin, and two or three others, but the company consisted of some thirty or forty persons. Tho defendant had a right to ba sued by the proper parties. It was not proved who were the company, or what was tho exact position "of the then proprietors of ths mine." There was no proof that defendant was a shareholder, nor any proof that the cali had been made according to tho rules of tho company ; there was no contract with tho company ; that the payment of £-1 was a conditional precedent to de fendant becoming a shareholder. Mr. VVynti, for tho plaiutitF, contended that a yfrfff contract was proved. Of that there could not bo the slightest doubt. The contract was to bo gathered from Mr. Crombio's own acts ; aud from his own contract. Tho whole matter was in a nut-shell. Hero were a certain number of gentlemen forming a company aud oli'ering a certain number of shares to the public. Then came the distinct application by tho defendant for shares, lie pays the money ; ho pays a sccond and third instalment, thus treating himself to all intents aud purpose as a shareholder. But Mr. Uussell proved that the shares wero allotted to the defendant. There at least, was, a response to the application and the completion of the contract which Mr. Crombio by his acta recognised. Indeed Mr. Crombie was so anxious to get these shares that ho sends the whole of the deposit, and it was clearly laid down that where («; part a Bloxom) even verbal application was made, and deposit paid, no notice of allotment was requirod to mako the applicant responiiblo as a contributor. But hero Mr. Crombie was one of tho shareholders inter se for tho samo reason—tho application being in writing, and, therefore, tho stronger reason—ho was responsible. Mr. Wostou was also heard upon tho legal points raised.

iiis Honor said he would look into the authorities, and give judgment next Court day. Judgment doferred accordingly. BAND OP lIOI'K GOLD MINING COMrAN'X V. HOUSTKEE. Claim, £24. Mr. Wyuu appeared for the plaintiff; Mr, BeVeWdge for the defendant.

Jolm William Rountree deposed that ho never applied for any shnres in tho company. Ho paid £5 for au interest in a piece of ground on the Collarbone. Got a receipt for the money, but it was lost. Witness swore that it was not a rcceipt for shaves iu the Rand of H"pi> Gold Mining Company. John Kountr>'c said he bought 30 ahares in Ilio Band of Hope, and paid for them with hii own cheque. Witness said he was the sole owier of the 30 shares. Believed last witness bought 30 shares fur the firm, J. W. Rountree and Co. Witness paid no calls. Air. Wynn said hn must abaudon tlio case. -ADJ^urxed. HEN"DEESO>* T. BUCHANAN : WILCOX V. HEr■WOOD. These cases were adjourned. MCGILL V. X.KVACK. This was an action of trover. The plaintiff ■was a passenger b_v the barque Schiehallion, from L iii-loa to Auckland. On the way out obtained beer and other things from the etcward of the vessel. Gave a letter of credit os security for £12 7s. The d»bt was £11 ss. Kcceived tho balance, £1 25., from Captain Lcvacfc. It appeared, however, that the letter of advice, or duplicate, was presented to Messrs. Cruicksliank and Smart before the ship arrived, and was paid by them to the purser. The plaintiff wanted to Ret h a clothes from the ship, but defendant detained tliem as security. Plaintiff valued the articles detained at £25. Cross-examined : Tiio captain said ultimately that Messrs. Cruickshank and Smart would be the losers, and that I might have the goods. I come to tho Court because I httvo been put (o expense, which I could not afford. The <;oods were in the house on deck. Mr. Bcveridgo said there was somo fraud by which the money was obtained from Cruicksliank and Smart, who were now prepared to loso the money. The captain says he nerer ordered those goods to be detained. His Honor: The only question is, did the captain detain tho goods alter tho money was paid to him ? Tho case was, with the aid of Mr. Uesketh, arranged, the plaintiff accepting a nonsuit.