MAGISTERIAL.

Ashburton Guardian, Volume V, Issue 1350, 24 September 1886, Page 3

MAGISTERIAL.

ASHBURTON—FRIDAY.

fßefore Mr H. 0. S. Baddeley, R.M] Boss v Cuff, claim £1 ss.—Case adjourned for a week. Rosa r Forward, claim 15s. Case adjourned for a week. Ashburton Publishing Co ' v Rands, claim £2 15s 2d—Judgment by default for amount claimed and costs. Same r Patton, claim £215 21 —Judgment by defeat for amount claimed and costa.

Duffy v Sharper, olai e. Mr Caygill for p'aint'ff. Judgment for plaint ff by default for the amount claimed and coats. Orr and A’oorn v Gropes, claim £6 ss. —Judgment for p’aintiff by default for the amount claimed and costs. Same v Fenton, claim £1 19t 8d. — Judgment for plaintiff by default for the amount claimed and costs Ashburton Cheese and Butt r Factory Cotnnany v Osborne claim £d 3* 10d Mr Parnell for plakt ff, Mr White for defendant —A. setoff had been filed The following evidence ws taken . —J. E. Hestell said that he was Secretary of tho Ashburton Cheese and Butter Factory Company up to the time it w.ntiotol q i • Nation. He produced minute of Company containing reso’ution on Ap il 21 1886 -.to go ln‘o liquidation. A meeting wis he d to confirm that resolution on May 8. Mr J. Tucker whs appointed liqu da r or and witness handed over the boobs at d papers of the Company to him.—Joshua Tucker, liqui- ator of the plaintiff Company, said that after his appointment be proceeded to settle a list of contributors to the Company. Gave notice to defendant of witness’s Intention to do so. Sat on the day app inted to settle the Ist. Defendant did not attend and o' ject to his name being on the lis‘. Settled the Hat; that produced was it, James Osborne’s name appeared as one of the pe sons 1 ab’e. Witness then proceeded to mako a call (instiumert produced). Gave notice to d fandant to pay the evil—£6 (notice produced.) Defendant had not paid it.—Bv Mr White : After giving Osborne notice of witness’s intention to place him on contributory list and before the date mentioned fur the settlement, witness might have had a conversation with him. Might have said to him that witness did not sea how he could get it out of him. William Wills was also a contributor end witne's gave him a similar notice. Did * not remember telling him on June 19 “that the whole of the business about these unallotted shares is a blooming swindle.” Witness nrgbt have said semething to that effect in reference to one cf bis own abates because he was not present at the meeting when the unallotted sh»r a were applied for. Witness applied ( c one when the Secretary waited on him. (Mr Purnell objected to this evidence as being irrelevant. Mr Whi'o sa ; d the evidence had a bearing on the case, ststing that it was h<s object to show that sime of the shareholders had been induced tv take op shares by misrepresenta’ion.) Witness did not tell Mr Gray and Mr Caygill on June 24 h that the unallotted shares were a swindle. Had no interview on that day. Witna s sa : d tba 1 when the unallotted shares were di t ibu‘ed he Secretary and Mr G. Wilkin wa tel on him, telling h : m that if he did not take a share the C mpany would collapse and witness wonld not be asked to pay unless sufficient shares were taken up. Witness believed that the purport of the conversation was that unless the whole of the shares were taken up ha would not be called upon to pay. Witness objected to this because he knew several bankrupts held shares and thsy would not apply f <r »ny of the unallotted shares Witness bought two shares at an auction ; ho did not know whether it was before this conversation or after it. Winners, in his position as liquidator refused tv sue any shareholder, outsi.le the directorate, until the Directors had paid Witness had only to sue one D'rector, and he never raised any objection to having to pay. Witness had never sea the original resolution regarding the unalloted share*. (Here an argument aro*e between Mr White end Mr Purnell regarding an agreement between the Company and Mr Brown which the former had given the latter notice to produce.—Mr Purnell obj voted to produce it on the ground that It had no bearing on the case—Mr White submi ted the document was relevant to the case ) Witness continued : Produced no application for Mr D H. Brown for unal O ed shares.—Witness was re-examined by Mr Parnell. About twenty four out of the thirty-six names <>n the list are those of parsons liable for unalloted shares which were taken up by them and nearly all of them had paid.—J. E. Bested, recdled, produced the share register. Mr Osborne had paid calls on the unallotted shares taken up by him.—By Mr White : Defendant tet'led the amount due for calls with part ol the money coming to him tor milk supplied to the Company. Wit - nesi|pald defendant two cheques, for milk supplied, to the amount of £33 lls 6d one of which for £4 defendant returned in payment for calls due. Witness did not thinx be told Osborne he had been instructed by T irectors not to pay milk account unless £4 dne for calls wars deducted The payment of £4 by Osborne was not purely * voluntary, but it was made with his sane tion.—By Mr Parnell : Osborne did not pretest that he was not the holder of the shares, but he add that by paying the £4 he made himself liable for the balance of the amount. Witness bad since paid defendant money on milk account but he had never on these occasions demanded tho return of the £4 ; nor had he taken any prcc»edlnga for its recovery or to have his name removed from the rrglater.—l o the Bench: Osborne did not strongly object to pay the £4, witeness’s imprest! n bring that h* merely remarked that by paying the money he made himse f liable. Witness did not put “ the screw ” • i defendant; had he refused to pay the £4 be could have taken the cheque with him The nm now sued for was not due when tbesnbsequent milk recounts were paid; £1 was due. Witness should have deducted this £1 for money paid for milk but he inadvertently omitted to do so —This w»s the case for the plaintiiff Mr White opened the ease for ahe defendant at some length. He stated that the terms on which the defendant and others bad been induced to take op the unalloted chores were that nnless the whole of thes' were allotted no calls wonld be made. This condition bad not been fulfilled, and defendant therefore was not liable, and called James Osborne. Be waa proceeding to examine him with regird to the set off of £l6 8s lid, when Mr Parnell, objected, arguing that there was no power to file a set- ff against a contributory— Mr White replied adducing authorities to show that eets-eff were admissable in cases where a Company was voluntarily wound np, and that it waa only in csos where the Company was wound up by an order of a Court that they wore exc’uded.—Mr Parnell submitted that the case cited by Mr White referred only to a Com cany <4o a solvent condition. Outside claims mast first be settled and then, if a surplus remain, the claims of the shareholders could be satisfied. A Company occupied the same position as a partnership.— After argument, the Magistrate teserved his decision on tha point) James Osborne the defendant was their exsmit'ed. He Bai t the plaintiff Company IMf I idebted to him to the amount of the si t-of £l6 8s The amount was a balance of Jd per gallon on the milk supplied to the Company by witness. He produced two letters, referring to the m>tter. from the Company promising him the extra £d. He was present at a meetIhg of shareholders in the Company on:

December 12, 1883 He read a circular from the Company. He had lost if. It was an exact copy of the one produced with the exception of the address. Witness attended the meeting in c m&equerce of the circular. Mr John Oir occupied the jbair, and three other Directors were present. A resolution was proposed, by Mr Andrew Orr. (The witne a was asked the purport of the resoluti"n, but Mr Parnell otj c'.ed, staling that the minute book was the evidence on that point. Mr. White said he was prepared to piova lha resolution as given in the minute book was inoonect, and not that proposed ) Mr White read the minute in question, -‘That the shareholders present agree to take up their share of the unallotted shares pro rata ” —Mr White ; Was that the resolution as proposed ? Witness : No. Mr White : What was the resolution as proposed ? Witness : *• That the whole of the unallotted share*, 256, be tr.ken up pro rata ” That was put to the meeting and carried, Witness ap pi ed to t akeuptw •of the nnalh tied shares Betw en fifty and s’x’y shareholders were present at that meeting. Had received a noti e, dated Jane 4, 1886 about his being placed on the contributory list Saw Mr Tucker after receiving it. Told VTr Tucker he did not understand the note and raked the meaning. Mr'fucker said he did not “ exac’ly understand the idea of the thing, but it waa a form that had to bo gono through.” Mr Tucker said th*t if any oce had any objection to make they might make them, but he added that he did not see that witness cou d raise any objection. Wi.n?si cid not appear at ths date fixed for making oh jaetlons in o msEquonoe i f what Mr Tncker tld t im. With reference to the psjn e>t i f £4, the witness asld tOa when h t wen' t> Mr Restell’s (fh te to o - tain p*j tnent : f his milk e'o. Mr Kestell taid that there wr-s an amount of £4 due by witness to the Coir piny. Witness said he did not acknowledge the smmot. Mr Re’ell hud tw<> cheques drawn out, one for £33 lls 6d, the amount of vti • ness’s account mid the other for £29 lls 5J Ertodvit c she had instructions t • atop all moneys. M onets after consider ini awhile thought tla’ as the Company was going into hqudnion he had better take what he c -uld get, and he afterward? accepted the smaller amount. Ab ut ) fourteen months before this, witness received a letter from the Company encloa in a a bill at four mounths which witness was ts’ttd to sign. He did not do to, as he knew wl ere he to sign he would become liable, bhortly afterwards, received notice of call, but did not acknowledge U The next witness heard of the nutter was when Mr Kes’ell stopped the £4. Witnest would not have taken up tho two shares he had spoken of had ho not unlerstood all the unal otted shares were to be taken up by the slaveholders gene ally, and not merely by the shareholder! s -t that meeting—By Mr _ Purnell: Witniss ha i never sent in a claim to the Ocmiany for the amount of the so’-AT. IVhon wit -ess waa written to about the calls, he did not give nit ; <e that ha had » set iff. He first thought of the s-t-off a f w days before proceedings were taken After being cross-examined at some length as to the set off, th« wit'ess said that he ould not e'ate if Mr Ore’s fob i'u ion at the m-otmg in Dec tnh r, 1883, was put in wr ting. He would not swear that the words ho had quoted wore the vary ones ■sed by Mr Orr iu his resolutions ; but they were to tint effect. He would not swear that Mr Orr stated his resolution in words, the Chairman putting it to tho meeting, and it being written out afterwards. Ho did not remember a statement being nude that any resolution passed at the meeting would not bind tho absent shareholders, but he v.ould not deny it. With refeicnoa to tho payment <f £4 wl'nees said that Mr Rested In d two cheque’s one for £33 H* sd, and t v e itha r fr £ 8 llr 51. (Mr Purnell produced a cheque f ir £4 with witness’s endorsement thereou Tho wtneis admitted his signatures but svM ihat he had made a mi* t .ke. h laving hr had endorsed a cheque for £33 .

At this itige the Court adjourned for half an honr.

[Left Sitting ]