LAW REPORTS.

Dominion, Volume 5, Issue 1486, 8 July 1912, Page 5

LAW REPORTS.

GOLD-MINING COMPANY SHARES. " QUESTION OF FORFEIT. COMPANIES HAVE NO OPTION. " "If a call upon shares .in a goldmining oompnuy be not paid within 21 days after it is made, tho shares, become ipso facto forfeited, and the company' has no, power to exercise'tiny option ins to whether it will accept such forfeiture or not." This is the law ns interpreted by tho' Court of, Appeal, '■ 'and' according to Mr. Justice Cooper clearly governs tho construction of Sections 352 and .353 of ; tho Companies Act of 1008. His, Honour was- dealing ■with the matter of tho King Goldmining Company,-. ; |,td.,, in voluntary liquidation, and deo/p g*. on application by -Richard Cock fcj i-'.i order removing his name from tin, ->/oi contribntorios. Mr. C. 11. Treadwcll appeared in support of tho summons, and Mr. 0. Beero appeared for the liquidator, who opposed the application. The company is a mining company re-gistered-under tho Companies Act, 190S, since that Act onmo into operation. The applicant applied for 50 shares in the company in April 1910, and paid Is. per share upon tho application; The shares were allotted to him, but he paid no allotment money. Ho paid nothing since his application. Fifteen calls were made since his application, each call being of Is. per snare. Tho first call was made in June, I'JIO, and was payable in July, 1910. Notices of all the Mills were given to the applicant, but no steps. were taken by tho company to sue for or recover any of the calls' or the allotment money. None of tho shares held by the applicant have been sold or offered for sale by the company under tho provisions of Section 350 of the Companies Act, 1908. The company is now being liquidated under a voluntary liquidation, and the liquidators placed the applicant on the list of conttibutories primarily liable to contribute, and' made b. call upon the applicant of 3s. per share. After considering tho case, his Honour said: "Although there- has been no resolution of the directors of the company forfeiting the .shares, and although the shares have not been sold by the comEny, they became absolutely 'forfeited at e expiration of the period of ,21 days from the day when tho first call becanio payable, and the applicant then automatically ceased to bo a shareholder.

. . .As tlia liquidators have- rot adduced any evidence upon which the Court can hold that the existing members of the company arc unable to satisfy the contributions required to be made by them in pursuance of the Act, the application must be granted and the applicant's name removed from tho list of contributories."

The summons was accordingly allowed, with £o 55,. costs. i The judgment also applied in the case of Mrs. Child, whose application was also allowed with .£5 ss. costs. Leave to appeal was granted. "MUST BE PERSONALLY SERVED." INTERESTING POINT. . In the Supreme Court on Saturday morning Mr. Justice Cooper gave an interesting judgment on an application, by a petitioner in Divorce, for direction, as to service. Mr. A. R. Atkinson hod pearcd in support of the application. Tho respondent," said his Honour, "was, in June of this year, sentenced in Sydney to three years' imprisonment for a criminal offence,' and is now undergoing this sentence iu a prison in New South Wales. The petition alleges that the respondent committed bigamy in going through, the form of marriage with the petitioner. The fact that he.is undergoing sentenco ought.not to prevent the petitioner from pursuing her remedy in this Court, but I do not think I can order substituted service. Tho respondent must be personally served. I shall give the petitioner leavo to have the summons and petition served out of the Dominion, 'but it must be personally served on tho respondent, and if the respondent is not represented at the trial, the fact thflt he is a prisoner must bo brought to the notice of the presiding Judge, and tho personal service T. have directed must, of course, be clearly, proved. Bland v. Bland Is an authority that substituted service on the governor or gaoler of the prison is not sufficient service, unless it can bo affirmatively shown that knowledge of the proceedings.has in'fnct'bcen communicated to.such prisoner.".

GUILD NOT RESPONSIBLE. SHIPPING STEIKB. : MAGISTRATE'S FINDING UPSET. Dr. M'Arthur's decision, in which he .Inod the ■Wellington Merchant Service Guild .£IOO for instigating a strike, has been reversed by the Court of Arbitra. tion. The cose arose out of the strike in the mosquito fleet in the spring of last year, when about 35 officers came ashore from their vessels after giving 2t hours' notice. When the Inspector of Awards proceeded against the guild for instigating the strike, the magistrate held that the offence had been proved,.and gave judgment for .£IOO as n penalty. The guild subsequently appealed. The appeal was heard last month, when Mr. A. L. Herdninn appeared for the guild and Mr. H. H. Ostler for the Inspector of Awards. ''Soveral questions were Taised by counsel for the appellant," said Mr. Justice Sim. "It is not necessary to deal ■with all of them, for the reason that the appellant, in our opinion, is entitled to' (racoeed on the ground that there was no evidence to justify the conclusion that tho appellant instigated the striko iii question. The appellant is a union, registered under tho Industrial Conciliation and Arbitration. Act.s, end in September last, an award was mado fixing the wages and other conditions of certain, officers who were members of the union. This award came into force on the 2nd day of October, 1911. The magistrate was justified, we think, in finding that some, at least, of thesa officers were parties to an unlawful strike aff°r that date, and that the secretary of .the union wxia aiding and abetting this strike. We cannot agree, howtwer, with the view of the magistrate that th"--e arts of the secretary are to be treated as done in the performance of his duties to the union, and are bindin?. therefore, on the union. The promotion of strikes cannot be regarded as part of the business of such n union. .Prima fnnie, therefore, it was not one of the secretary's duties to incite or insti. gate the" members "f the union to in an unlawful strike, or to aid and abet them in such a strike. Tn ■ the absence of. express or implied authority from the union, the secretary's acts must be treated as being outside the sphere of h.'s duties as secretary.' nod eaniiot impose nny responsibility .ojnithe union. Tt. was not suggested that. til. union it.=elf bed authorised tli» strike. I II; was contended, however, by Mr. Ostft-r. that the proper inference to be il-rn'wnifjom the evidence was that the strike hlAbeen authorial or _ e.ppro'-etl of by tV!c"«eculHve of the union. There is no evidence that it was expressly authorised by that bod;- or thnt. the proceedings in connection there, with were ever considered at any meeting, whethe- formal. or informal, of the executive. There may he ground for suspecting perhans that sonio members of the executive kn-"w and connived at what wa4 being done hv the secretary, but tliot is pot enough. t/> iinnose -responsibility the union. The appeal is allowed ~wiH> costs, JZo 55., to the npnellant. .Tudgnvnt I* "iven for the appellant in the action ■ with cr-sts in the Magistrate's Court to be fixed by the magistrate.",. NOT TO BE PAID FOR. TIME LOST THROUGH ILLNESS. An interesting judgment hns just been delivered by tho Court of' Arbitration.in tho action in which Denis Cannody, Inspector of Awards, proceeded against Ferguson and Hicks, printers, Wellington, to recover a penalty for on alleged breach of the Wellington Typographical award, by making deductions from Ihe wages of a compositor, employed nl a weekly wage, for time lost through sickness. This, it was.contended; was a breach of Clause i of Ihe award, which provides ihat employers shall not hi. bound b> pay for tolidays, but, subject to this, no deduc-

tion shall bo made from the weekly wage except for time lost by a worker through his own default.

In the course of tho'judgment the Court said:—"Tinio lost through sickness cannot be treated, in ordinary circumstances, as time lost through tho worker's default. Whon tho.award wns mado in 1007 n custom had obtained for many years in the printing trade of deducting • for time lost through sickness. This custom was continued, afterwards, without objection on tho part of tho union, and has prevailed up to the present time. If the question had been raised in 1007, after f.ho award had been made, it is doubtful whether this custom could have been allowed to continue. Tho question, however, was not raised, and for nearly five years the parties treated time lost throujrh sickness as covered by the word "default," as lised in Clause 4of the nwiiTd. This, although not the construction which the Court would adopt'if (he matter were "rea iiitegrn," is not altogether an unreasonable interpretation of the award, and, having- been noted on for some years by the parties, ought not (o be disturbed now. .We hold, therefore, that the defendants have ..not: committed any breach of award, and judgment must be in the'? favour.' As the case.was brought to obtain ;au interpretation of the award, no order is made, as to costs.

At the hearing Mr. H. H. Ostler appeared for the Inspector of Awards, and Mr. T. S. Weston appeared for Ferguson and Hicks. '• ..••'• BREACH OF AWARD. NO PAY IN LIEU Ol' HOLIDAY.Breach of tho Wellington Merchant Service Guild Award was held by the Court of - Arbitration to be! proved in tho case in which Denis C'anuody, Inspector ,of Awards, claimed .£lO penalty from Johnston and Co., agents for the steamer Hippie. It was set out that Johnston and Co. had employed Ernest Tnrhsma as second mate of the Kipplc from November 3, 1911, until Juno 11, 1912, arid on discharging him' (for a caiiso other .than misconduct) had failed to . pay him in lieu of holidays in proportion to his service.

in' giving decision, the Court said that tho case turned on Clause.3 of .the award, and "in order to ascertain the meaning of that clause the whole of it must be considered, and not one part of it to the exclusion of another. 'When- read in that way the effect, in our opinion, is to give a right to a holiday accruing 'de die in diem,' and that this, or a payment in lieu thereof, can only bo lost by the officer voluntarily leaving the service, or by being guilty of misconduct which results in his dismissal. Tho holiday, it is true, is not completely earned until there has been at least twelve months' continuous service, but, if through any cause other than his own misconduct, an officer is deprived by his employer of an opportunity of completely earning tho holiday, then ho is entitled to the payment prescribed by Sub-clause (cj of Clause 4. The defendants, therefore, have committed a breach of award, but as the case was brought to obtain an interpretation, no penalty' is imposed nor any order made as to costs.

"It may bo desirable to say that, according to the view we have taken of the award, an officer who was engaged as a casual for, say, one voyago only, and without any intention of continuing in the service of the shipowner, would not be entitled to claim the benefit of tho clause." At the hearing, Mr. H. H. Ostler, appeared for the inspector, and Mr. T. S. Weston for Johnston and Co.