DISTRICT COURT.

Timaru Herald, Volume L, Issue 4852, 24 May 1890, Page 3

DISTRICT COURT.

TlMAßTT— Feiday, May 23. (Before His Honour Judge Word.) civiT-. T. Morcer and wife v. Waimate County Council, claim £GO, damages. Mr C. Perry for plaintiffs and Mr While for defendant*. Mr Perry asked for an adjournment, as tho case would last two day*, and thero being some doubt as to what day would be observed S3 tho Queen's Birthday, it waa thought better to agree to ao adjournment, to some day to bo fixed by tho Court, as it would be inconvenient to bavo tho caso interrupted, o number of witnesses having to come from Waimate. Bis Honour fixed Juno 13th for tho hearing. msnor v ackiioyd appeal. On the request of Mr Hay, Hie Honour agreed to nettlo tho c:ise for appeal in Bishop v. Ackroyd, on the conclusion o£ Iho Mercer euit at the adjournei Bitting. IN BANKPDTTCY. Orders of dischargo wore granted lo Cliarle3 Baundors and Tliomni Kndoll Wanklyn (Mr White) ; T. Tangnoy, (Mr Salmond). iETTBB3 OF AnMIHISTBATION. Loltors of administration wore cranted to P. Coirn, of the effects of Abondio Coira, deceased, on tho application of Mr Salmond. m; dbpce's milling company. Mr W. 1). Stewart, for tho official liquidators ol Bruco's Patent Oatmeal and Milling Company, applied to havo Messrs Dryedale, Balfour, Bruce, Rhodes and Dnweon placed on tho list of contributorics in respect of additionul shares. All tho evidence had been tuken in tho case and tho only question was whether these parties were lii'ble. His Honour bad held tliat they were not liablo, tho matter was taken to tho Supreme Court, and that court decided Ihtil thoy wore liable, and ordered that, their names bo put on tho lhl of contributories. Tho only question now to bo settled wns whether they woro lhblo for £100 or £200 ofloh. Koch of thorn took two new shircfl against which his original paid up share wus to go as part payment. He did not know what Ilia learned frionda on tho other side could eay, but lie would contend, on tho authority of recent cases, that the parties could notplendnny agreement respecting the old share, and therefore they mint bo liable on both tho new shares in full, that is for £200 ench. Mr 0. Porry appeared for tho Directors named, and Mr Hoy for Mr PJanto, whoso name it is also nought to have placed on tho li*t, though there- was no appeal in his case. Mr Porry agreed Hint the question wai whether the directors wens to bo hold liable for one new sharo, £100, or two oowshares, £200, in addition to tho £100 I hey had already p%id. Mr Justice Wiiiiums' decision was founded on n misconception of the facts, the statement of tho case wus erroncouß in rßßpcet to tho new nlmreii. T'lipy wero uot unterod in tho filmro vogister a.* holders of three ahuros in nil, but of two, tho original shiironiicl n duplicat!) of it. Scrip wos imuod us for two now Bharco, but the renter did not hear that out Ilia Honour lor>k Hie »hiiro register, and a lo.ig dincue-i'in took plnco on tlio precise meaning of tho ontriosin thn shoro rcgUtor. Hi* Honour woe of opinion Unit the cntrii-n in the register would be taken by oulniders to mean that the Directors hud taken two now

shares. And tbo contract about (he Bharce ought to have been filed. His Honour admitted that the justice was on Mr Perry's sido. Mr Perry strongly combated His Honour's reading of the register. What win done was to exchange ono fully paid-up share for two half paid up, and the use of the word " duplicated " in the register would show that the two shares were not both new, otherwise the word Bhould be " triplicated. Mr Hay in the coarse of Tomarks on Mr Plante's behalf, pointed out that ic the original application the liquidators asked to have the names put on for two shares only, not three each, the paid-up Bhares being included. Ths register hhowod that tho original share was extinguished, its numbor beiDg erased, to moke way for two frosh numbors under tho duplication. Mr Hay quoted cases to show that the register could not be reotifiad to tcako his olient a holdor of three shares, if it did not already malte him bo. What would any oreditor inspecting tho register mike of it, — that Plante held two shares or throe ? His Honour : You etood as the holder of one share. Tho asreomont was that that issue Bhallbo cancellnd, and in place of it two now onos, on each of whioh £50 should bo held to be paid up. Aonording to Mr Justieo Williams' decision the company had no power to tako a fully paid up sharo in part payment for two other ahareß, had no power to make such a bargain, or if it was made it should hare been filed. Mr Btewart rose to reply, when His Honour said that however strongly he felt on the matter, Mr Juatice Williams' decision was sufficient to carry Mr Stewart's contention. But for that decision he would have deoided against Mr Stowart, but witE that ho must decide for him. If Mr Perry wished to appeal he would gladly giro him leave. His Honour, in accordance with his decision, fixod tho liability in each caso £200. Mr Perry gave notice that he would ap. peal. At Mr Perry's request Reid and Grey'B caso was held over till 17th Juno, and if tho appeal is then being proceeded with' n further adjournment to bo agreed to. In replying to an objection to the adjounruont, by Mr Stowart, as it wouid necessitate his coming up again, Mr Perry said he supposed his learned friend would bo often up jet, as no doubt he would try, after Judge Williams' decision, to get other shareholders pluced on the list of contributories. Mr Si owart replied that he would possibly leave that to the contributories, any of whom could move for the inclusion of other shareholders. Mr Hay said Mr Brajshaw agreed to his name being placed on tho list of contributories for his shares, but he naked to be allowed to provo as a creditor for the amount, as ho parted with real oetate as paymont for the shares. Mr Stewart said there wero authorities against such a claim. Mr Brayshaw could not rank with other creditors, but ho could look to the contributoiies after other creditors had been fatisfiod. His Honour thought that in fairnosß, as ho had been made linblo from noglect to file a coatract, ho should bo allowed to prove, otherwise he would lose his property and his money too. Mr Hay read several decisions that shareholders in Bravahan'd position are entitled to rank as creditors. Mr Stewart said the proper course was for Mr Brajsb.iw to lodge his claim, and appeal if it wis rejected. There was this difference in his ciso from those quoted, that the company never owed him anythiog. They never agreed to pay him any money ; thoy agreed to giro him threo paii-up share*, and thoy give him tho shares. Tho shares turned out to bo worth nothing, butho accepted thom as payment. Jiis Honour had forgotten the agreement ; that no doubt put- Brayshaw's case on n different footing from those referred to by Mr Hav. Mr Stowart said Brayshaw, befors the wind-ing-up, might have demanded the cancellation of tho shares or filing of a coutract, but after tho order for liquidation he could not do either. There was no debt to beset off against the shares. PaH-up shares were issued to him but they were not protected by Brayshaw as they should have been. He admitted that it was a very hard case, but tho liquidators were simply trustees, who must proceed according to law. Mr Hay contended, at some length, that Dr.iyehaw could come in on equal footing with other creditors. He had a right to prove for damages for breaoh of contract. His Honour pointed out that there wa» contributory negligouco on Braysban's part in not registering the contract. Mr Stewart denied that there had beon any breach. Tho company agreed to give fully paid up shares and nothing else, and did so. On tho strength of ono of tho authorities, cited by Mr Hay (Sfudford's caso), His Honour ruled that Mr Brayshaw is entitled to prove for the valuo of his land, and share with tho other crodilors, after paying his £300 on his shares. Mr Stewart then applied to have T. 0. Planto's numo put on the list. Mr Hay objected that his name was struck off in June last, and tho limit of time for notice of reconsideration, 21 days, had long passed. Mr Planto could not now be taken up afresh and made liable. Mr Stewart replied, and after a long argument, His Honour decided that Mr Plante's name must be put on the list for £200, like the others, his case to bo subject to tho decision of the appeal in tbn other cafes. Mr Btowart asked for an order for payment of tbo liquidators' costs, and this was granted. The court then adjourned to Juno tho 13th.