MINING CASES IN TIIE SUPREME COURT.

Otago Witness, Issue 2009, 25 August 1892, Page 14

MINING CASES IN TIIE SUPREME COURT.

HE THE NENTHORN CONSOLIDATED QUARTZ JIJNIXa COMPANY (LIMITED). Motion to remove the name of Johu Edmond, jun., from the list of contributories. MrJSim appeared in support, and Mr Hocking to oppose.

The facts of the case are that Edmond was on the register of shareholders for 120 shares, and a third call was made payable on the llth September 1889. No proceedings were taken to recover the call, so that at the expiration of 21 days the shares becamo forfeited. The 21 days expired on the 2nd October 1889. A winding-up order was made on the 3rd October 1890, and it was contended on behalf of Edmond that by the wording of clause 5* of the Mining Act he ceased to be further liable for these shares at the expiration of 12 months from the date of forfeiture. Thab expiration took place at midnight on the 2nd October 1890, and it was not till the next day that the winding-up order was obtained. His Honor, in delivering judgment, said :—: — On the whole, I think that both -is regards section 47 and that part of section 51 which corresponds with section 47, the real meaning is that a transferror in the one case and a forfcitor in the other are to be chargeable with prior liabilities if the company is wound up within six months after transfer in the one case and 12 months after forfeiture in the other. It is obvious, I think, that, apart from winding up, there is no means by which the company can recover from, the transferror or the forfcitor any sum in respect of the debts or liabilities with which these sections say these persons are to bo chargeable. Both these sections, therefore, look forward to winding-up as being an event in which the transferror or forfeitor is to be made liable ; and if they are to be made liable, they must be liable, of course, aa contributories, and consequently they are by these sections to be deemed contributories. The whole principle of winding-up joint stock companies is that at the moment the winding-up commences the rights of the parties are fixed, and the subsequent proceedings are merely for the purpose of adjusting the rights of creditors against contributories aud the rights of contributories between themselves. If that is the true interpretation of section 47, and of that part of section 54 which corresponds to section 47, then I do not think thnt what may be called the proviso of section 54 alters the provision ; it was evidently added abundantc cautela. In my opinion section 75 is the section which determines < the matter. That section prescribes that the winding up is to be doomed to commence at the time of the presentation of the petition therefor. In the present case the petition was presented within 12 months after the forfeiture, and in determining who were contributories under the winding up it became neccssaiy to go back for 12 months prior to the presentation of the petition. Tbat being so. I think ftlr Edmond must be taken to have been a. contributory in respect of the debts and liabilities incurred prior to the date of his forfeiture. The summons will be dismissed ; costs LI Is. Summons dismissed accordingly.