LAW REPORTS.

Dominion, Volume 5, Issue 1380, 5 March 1912, Page 3

LAW REPORTS.

SUPREME COURT. MARLBOR9UGH BREWERY CASEDAVID BRAND, CLERK. AND T- K. MACDONALD AND OTHERA summons issued by the liquidator of (ho Mariborough Brewery Company to have one David Brand added to the list of contributors to the company in liquidation, was .heard by Air. Justice Sim, in the Supreme Court, last week. It appeared from tho proceedings that Brand had signed an application for 1720 shares, but he now alleged that he had acted only as agent in the transaction. A summons was issued to T. Kennedy Macdonald and to A. L. AVilson in respect of the same parcel of shares. At the hearing Mr. A. R. Meek appeared for tho liquidator (Air. A. Simpson), Air. C. B. Morison for Brand, and Mr. K. Kirkcaldie for AVilson. Defendant Macdonald was not represented by council, but he was present in the Court during the proceedings.

In evidence given at the hearing,David Brand stated that he had been ' for several years a clerk in the employment ot Macdonald and Wilson. It was true that ho had signed an application to have the shares issued to him in August, 1909, but he did so at Macdonaid's request. AVitness was then only a junior clerk, receiving a small salary, and he could not have purchased 1720 shares. Payment for the shares was mad© by a cheque of the firm of Macdonald, AVilson and Company. He could not remember having received personally any communications from the company concerning the shares. Mr. Justice Sim delivered judgment in the case yesterday. In the course of his judgment his Honour said:— "It is clear, I think, that Brand did not intend to apply for any shares on his own account, but was applying on account of Macdonald or his firm, and also that the 1720 shares (in respect of which -Jlacdonald signed the memorandum of association) were intended to bo the same shares as those for which Brand hud applied. Mr. Morison contended that,, in these circumstances, Macdonald must be treated as a member in respect of the 1720 shares for which he had signed in the memorandum, and that, as only 1720 shares were in question, Brand could not remain on the register also in respect to the same shares. It had been plainly tho intention of all parties that only 1720, shares should be taken up by Macdonald or his nominees. If, therefore, the application for the 1720 shares had been made, by Macdonald, or his firm, tho allotment of shaves (in pursuance of such an application) would have been treated as satisfying the obligation imposed on Macdonald.by his signature to the memorandum. The allotment to Brand cannot, howover, be treated, in my opinion, as satisfying that obligation, and Macdonald, in any event, therefore, must be put on the register and list of contributories in respect of 1720 shares. If Brand has to remain on the list also—in'respect of the 1720 shares—the result will be to defeat the intention of tho parties, and to impose a liability on Macdonald,' and his trustee, in respect of 3110 shares instead of 1720. Tho judgments in the Court of Appeal in Dunstor's case are an authority for saying that such a result cught ■ to be avoided if possible. ; ..Macdonald and his trustee have, an be .made liable in respect "of 1720 shares only. The only way in which, on tho authorities, effect can be given to this' equity is by substituting Macdonaid's name for that of Brand en the register and list of coutributories in respect of the 1720, shares in question, and an order will be made for that purpose. I feel less hesitation in dealing with the matter in this way for the reason that the assets are sufficient to pay the creditors in full, and they cannot be prejudiced in any way by the order now made. In the view that I have taken of the matter it is unnecessary to hear the parties further, except on the question of costs. His Honour made an order for the above-mentioued substitution, and subject r.i that alteration, and the'other alteration authorised on Mr. M'Corthy's application, settling the list of contributories. as submitted by tho liquidator. • The question of costs was reserve'd.