RESIDENT MAGISTRATE’S COURT

Ashburton Guardian, Volume V, Issue 1548, 5 June 1885, Page 2

RESIDE NT MAGISTRATE’S COURT

ASHBDII lON — To-dat.

Before H. 0. S. Baddeloy, Esq , R.M.) Obunk'-.NUESS. Two first offenders were fined 5a and costs, with the alternative of twelve hours’ imprisonment for drunkenness. Arthur Prisby for having been drunk while in charge of a horse wta fined 20s, with the alternatire of 24 hoars’ imprisonment. CIVIL CASKS, Wilding and Oaygilt v Matter, claim L 8 —Jadgment by default for (he amount claimed and costs. Tapper v McKenzie, claim 10s fid. —Judgment by default for the amount claimed and costs. Tapper v O’Connor, claim Bs, Judgment by default for the amount claimed and costs. P. and D. Duncan v Dunn, claim L 6 3s 61. —Judgment by default for the amount claimed and coats. Beecher v Lemon, claim L 3 2s.—Judgment by default for LI 6s and costs. Upper Ashburton Road Board ▼ Wilkinson, claim L2 15s lOd.—Mr Wilding for tbe plaintiffs —O. Jephson, Clerk to the Upper Ashburton Road Board, testij fied to t'e accuracy of the claim.—The I defendant admitted his indebtedness, but said no demand bad previously been made upon him for the amount. — After somi argument as to the validity of the summons the defendant volunteered to pay the amount of the claim, without costs, and the offer was accepted. Campbell ▼ Ruddick, claim L 6 12s fid. —Mr Wilding for the plaintiff.—Mr Branson, for the defendant.—B. Campbell, the plaintiff, gave particulars of the claim. Witness had received a dray from Puschell Bros in part payment of an account owing. He subsequently sold the dray to plaintiff; the price was included in the account now sued for.—To Mr Branson: After Pusohel Bros’ bankruptcy the bankrupts told witness that the dray was not included in a bill of sale given by them to Freidlander Bros —R. Friedlander said his firm had taken possession of a dray, their property found in charge of the defendant.—R. Ruddick, the defendant, said the plaintiff had told him chat the, dray included iu the account had been obtained from Posohell. Witness said the dray had been seized by Friedlander Bros. They alleged that it was their property,—After argument the case was adjourned till Friday next, to secure 'he attendance of a witness,.and the production of a written document. Friedlander Bros v J. Gibson, claim L2B 6s fid. Judgment summons.—Mr Parnell for the plaintiffs, Mr Wilding for ihe defendant.—The defendant having been examined, and a large quantity of ev danoe taken, an order was made for the payment of L2 on July 17, and the balance by instalments of L 3 per month, in default six weeks’ impriso ment Eda v Jepson, claim L 5 for keep of s '■orso. —Mr Branson for the plaintiff, Mr Wilding for the defendant.—B Ede, the plaintiff, and 8. Ede, his son, stated that a horse belonging to the defendant had > been kept on the farm of the first. The claim was for the value of tbe keep of this horse.—J. Jepson, the defendant, said he was under 20 years of age. No arrangement was made in respect to the keep of ' the horse, except that it might run in a , paddock free of charge. The horse had b-on used in the service of defendant.— Judgment for defendant with cost. Campbell v Fergus, claim L 4 10s Mr Wilding for the plaintiff. —Judgment for the amount claimed and costs tshburtou Cheese and Butter Factory v Wiikia, claim L 7 16 6J.—The Magistrate delivered judgment in this case as follows This is *u action to reovsr ■ L 7 16s fid, stated to be due by the defendant to the plaintiffs (the Company) for calls and interest. The matter is of considerable interest, and its importance is not to be measured by the amount involved ; 1 shall, therefore, in giving judgment, go into the matter at some length The defendant, who was a Director in the Company on the 12th December, 1883, sent in an app ication for 17 shares ; other applications were received, and in the course of time the full number applied for by the defendant were allotted, and his name was plajed on the register as the owner of these shares. It is contended for the defendant that the application was conditional, and that the caking up of the shares by the defendant depended upon a certain conting mcy, namely, the taking up of the whole of the 254 unallotted shares by the shareholders, pro rata, Tbe evidence for the plaintiff goes to sfaow that the defendant never repudiated his liability, at any rate, till after he left Ashburton ; and that he, as a Director, and one who attended very much to his duties, too, assisted in the allotment of shares and all other matters connected with the Company. Nothing appears to have been done but in the m >-»t ab ivaboard way by the Directors ; the position of the Company, which was evidently not in a flourishing state, was clearly stated, and, in fact, the reason the shares were to be taken up was to enable the Company to continue its operations. The resolution passed at the general meeting of the shareholders to the effect that the shareholders present agree to take up the unallotted shares pro rata was duly confirmed. Now, it is arged for the defence that this resolution is not to the same effect as the one passed. Pome of the witnesses say they think the word “present’’ (a most important word for this case) was not in it, and one witness says he thinks that the word “their” was also not part of the resolution. But on the other hand the witnesses for the plaintiffs I positively swear that the resolution was passed, and one witness (Mr R. rioorn) gives an excellent reason for his certainty. And added to all this the Chairman of the three to i s swears to bis patting the resolution to tbe meeting in terms appearing in the minute book, and that the mover of tbe resolution put his resolution into writing. It is submitted for the defendant that he was released from all responsibility regarding the shares, as the time in allotting them was unreasonable, and that there was no evidence of the defen dant’s acceptance of the shares in terms of Rule 1, and that the meeting held on the 12th December was not properly held. Che learned counsel fur the defendant also considered that there was no evidence of what was a quorum of Directors ; and farther contended that there were, in December 1883, really no Directors to this Company, as none had been appointed for the year xVow, to take the lust point I of defence first, and so on backwards, there can be no doubt that the Directors were a continuing body (Bee rules 80, 64 to 58 inclusive, and 63 ) I think it must tie taken also that everything dons at the meeting was prop rly done. The minute booK ia in evidence, and is the prop r evidence of the proceedings at the me-1-ing. (Clause 103, Companies Act, 1832 ) With regard to the defendant’s acceptance of the shares. Acceptance ia sometimes evidence otherwise than by allotment, although allotment ia the usual way ; but an allotment <>f shares, pursuant to an application for them, constitutes with the applicaion itself, and notice of alio ment, an agieement binding bo'h on app io*nt and on the Company. (Liodley, 4th ed., 102.) It is not necessary to prove especially formal notice of allot m int it is sufficient that the aliott-e knew of the allotment, and I cons dec, if it could be said, that there was not notice in this case that the defendant—being a director and being, so to speak, a part doer of what J was done—would be (rota ob< j

jsaling. Ido not agree with the learned counsel for defendant in Us reading o J Bale 1. It does not, I feel sare, apply In snob oases as this. It would worse an absurdity if It did. As to the time of

allotment the reasonableness or otherwise

depends on the circumstances of the Leak on contracts.) The Directors had sound themselves not to nuke a call for 12 months, and therefore there was no reason for harry in allotting, and they were/ " moreover, entitled to every consideratian, seeing the financial atata of the Company, and I think under all the eirramttaneee; - the time was not nnrasaonaUe. It is

sought to introduce verbal evidence to prove that the application for shares was only conditional To allow snob evidence would be a most dangerous thing in the case of such an application in which there was no ambiguity whatever. The form used is plain in. its terms and the one ordinarily used, and nothing like fraud is hinted at. In this ease, as in Holson v Brown and An. 30, L.J.O.P 106, the application was adopted in terma by the Director!, and the evidence offered is beyond ell dispute of uonrewatioo to vary the effect of the application, and therefore not adm'ssable. The defendant was present when the shares were allotted. If the shares were taken

conditionally it should have appeared on the application, but it is an unconditional application, and tha defendant has not exercised dne care If ha meant it to be thcrwiae. Carmichael's esse, t Unit 163 is not in point- It was not shown iq that case that anything was done on the application for shares. Matthew's ease* : 3 Da QandS 234 is quite distinguishable from this. la that oaaa the jury found that the afaaree were not allotted In. reasonable time, and that the Committee did not at the time intend to carry on the undertaking, and that the allotment waa not made with a view to its prosecution, the exact opposite being the oaae in this matter. (Brittain’s and Uphill’s cases, 479 and 480 L. J.N.S., are In point in tin* esse.) The defendant being a Director makes the esse all the more strong against ' him. Ha torned up the corner of the letter dated 9th January, 1386,' which letter contained an application for calls on these 17 shares, and writes referring to sir Seoretan, to whom the ahana were transferred. Had he been prudent be would have revoked it long ago, instead of transferring. By doing ao lie dealt with the shares, and yet on the 16th March, more than two months after, be repudiates all liability. It did not lla in his month to repudiate at the late boor that be did; from the way be acted I thfnV the Directors had a right to tint benefit of bis acceptance of the shares (Brice 341). The defendant moreover, by his conduct, intimated that ha consented ta what wai done by bis brother Directors, and ha stood by-and allowed them to incur heavy responsibilities which they might have abstained from had ha acted differently. He cannot now question the legality of ♦■hah’ scion that be has sanctioned, to the prejudice of those who hrva ao given faith, if not to his woras, perhaps, at any rate* . to the fair inference to be drawn from hie conduct Cai across v Larmier, 3 msoq.; Hof L casts. Pickard v Sears and Barrett, 6 A and E, 469. I should be going . oat of my way to give defendant a judgment, if I were to do so in the teeth of his application in terms so absolute. I did say that I might, perhaps, grant an appeal if applied for, but I do not see wny I should do so if such wars applied for. Judgment for plaintiff* with coats.