DISTRICT COURT, HOKITIKA.

Inangahua Times, Volume III, Issue 62, 10 January 1877, Page 2

DISTRICT COURT, HOKITIKA.

i Wbdsbsdat, Janttast 3. ■_- _. ; ■ (Beforn His Honor Judge Weston.) His Honor sat in the District Court yesterday to deliver judgment in the matj; ter of an application made at the last sitting of the Court at Beefton by Mr Guinness, on behalf of John Whela^ for j an order to rectify th«> share register of tho Fiery Cross Quartz Mining Company, by the substitution of the name of John Whelan for t'nat,' of John Ching, in respect of 25»*hare8 in the company. Mr Purkiss appeared fo? applicant to recHve judgment. His Honor delivered judgment as follows : — A.t the last sitting of the Court at Reefton, Mr Guinness mored for an order calling upon the manager to substitute the name of John Whelon for that of John Ching, upon the register of shareholders in respect of 2$ shares in this company. It appeared from the affidavits read that a Mr M'Ardle being, as he alleged, the registered proprietor of the shares, had sold and transferred them to Whelan. Upon the presentation of bis transfer for registration lie was met with

a prior assignment executed by the bailiff of the Resident Magistrate's Court, who having seized the scrip under a warrant of distress disposed of the share < to MrChing. Section 133 of the Mining Companies' Act, 1872, makes shares liable to seizure and sale ; but it is contended that because that class of property is incapable of manaal seizure— although made, available by law—it cannot be sold. \ Nothing turned upon the form of transfer | used by the bailiff, nor upon the rules of j the company, neither of which indeed j was produced or referred to at the argument. It was not suggested by the I learned counsel, Mr Pitt and Ms Guiu«> ness, that the position of the bailiff of an inferior court in respect of the seizure of shares, differed from that of the Sheriff, j The principle question then left for the Court to consider is—What will constitute a seizure of shares ? A manuel seizure is an impossibility— hence it is I conceive unnecessary. Moveable chattels are alone capable fof actual seizure, yet other property, of which manual delivery cannot be at all times effected, maybedis* ] , posed of in execution ' for instance, ships and leasehold property. The case of! Hartley v. Hartley, 11 Irish Chan. Kep. 451, is in point. There the Sheriff acquired the ship's register ; having sold the debtor's interest in the ship— with a j view to enabling him to transfer it to the j purchaser — be registered under his writ of fieri facias at the Custom-house, and thereupon completed and registered a bill of sale to has vendee. The absence of j manual seizure was raised and the title of the purchaser impugned, but the Master of the Rolls, after suggesting the impos sibility of making such a seizure, hell it to be indispensible, inasmuch as it was necessary for the Sherifflo actually grasp only such property as would pass to his purchaser by mere delivery. He approved the course pursued by the Sheriff and sustained the sale {vide Mer. Ship. Act, sees 45 and 53). In the course of bis judgment, the learned Judge referred to the distinction which had been draws by Pollock, C.8., in the case of Playfair v. Musgrave, 14, M. and W.. 245, in case of property which passes by delivery, and that which does not. The Chief baron remarked, " I think it is quite clear that the term remains in the original lessee until an actual assignment by the Sheriff, and I cannot at all accede to the suggestion in argument, that on the seizure of a term of years the term becomes vested in the Sheriff" until he executes an assigo-> meut of i\ to the purchaser. It may be that things which pass by delivery, are for some purposes, vested in the Sheriff by the act of seizure, but in the case of chattels real it ia not so." Acd so in the case of Doe v. Jones, 9, M. and W., 372 and Doe v. Donstan, 1, B. and Aid., 231. where the Sheriff had seized the docu ments of lease it was held that the debtor was not divested of his property until an assignment by the Sheriff. The acqusition of the lease could not, I apprehend hare amounted to more than a constructive seizure of the property demised. Land, ships, and shares in general must be alike passed by a written document. The ficts of this case, however, may be distinguished somewhat from the fore* going, if, as in my opinion, is the case the scrip as an evidence of title, is not in value equal with a deed of lease. The Mining Comnanies let does not expressly, yet inferentially it m*y by section 28, provide for and require the issuing of scrip, neither does it attach a special value to it, as is the case, with certificates under the English Act 1862, KrleO.T. in Swan's case, 7, C.8.N.5., 437, treats scrip as a mere indication of title. He says, "The certificates were neither the shares nor »he tile to the shares; they are an indication of title which the purchaser with ordinary care would enquire for." But notwithstanding that upon the authority of Mr Justice Willis in Coleman v, Rawlinson, 1, P. and P. 330 (a nisiprius case it is true) I incline to the opinion that the warrant conferred a power of sale of shares without a seizure. This was an action in ejectment, at the trial the plain) iff failed, to prove the feiznre of the deed of lease upon exception being taken, the learned Judge ruled it to be immaterial, and remarked that i-r" The assignment is evidence of the seizure. The Sheriff under the Ji fa .could not enter on the land, he covsjd only seize the lease, and that need hot be seized to give validity to an assignment " Would not that principle, one which 1 venture to think, will upon reflection, command itself to the mind of many, apply with equal, if not with greater force to the present case, a seizure and sale of shares, of which if my ruling is sound, neither actual or con* strnctive possession can be taken ? It ! might he argued however, that mannal j seizure being impossible, the bailiffshould have registered himself a transferee, tinder the 22th section of the Act. Such an argument must be, I apprehend, based upon the assumption, that a warrant of distress vests the debtor's property in the Bailig. It does not do sb. The property remains with the debtor until sale of moveabie goods, and until the execution of adeed where such is necessary to transfer it. In that elaborate and instructive case Giles v Grover 9 Bine, Mr Jpstice Patterson in referring to the duties powers, and position of Sheriffs, said— "The goods are in substance in cuttodia legi»i the seizure made by the officers of the law is for the benefit of those who are by law entitled ; ;i if made

against the will oftha debtor, «nd no property is transferred Of #nf f cr, of his to the sheriff. In this respect it differ* from all eases of special property and of charges on goods created by. tfeilebtoo, while he has the absolale.doA|pn om them." And then Jx>rd J^ipHen fol • lows:— "property ca^w^^|^e|t«4 out of one person without bellig rested in «• other ; and it ia impossible to say in wbofiß the property does become rested, if tlie investment be taken oat of the debtor. / It has been argued that the property is nested ia the sheriff because there are authorities to shoif that the sSenSHf the A property be taken out of hit hands, may maintain an action of trover against the wrongdoer. Those actions are maini»n*kte upon grounds perfectly distinct from the ' rigibts of property, th^y are maintainable k upon the grounds of possession ; any nan * in possession of goods, whether w* bailee or otherwise, may in his own pame maintain an action against any. perfoa who whall deprive him of that possesjiae. The power, therefore, of bringing aa action of this kind dees by no Was prove that the property is in the she«ff. H As Baron Aidersen observed ia Mnsgrave v Play&ir, The Sheriff is oydif thettiduii ]. pipe tottvntfn'tferigkicfittei^tQrio the purchaser. As, tfcef efore, the bailiff 1 I did not possess an estate in the »&•*«• ke f cotild not , I conceive, upon the authorities ' jast cited, claim to be registered % ims* feree or shareholder tinder the 9&d ; section of* the Act. Ef en if tie Ait contemplated the attachment pfiharMfcy the registration of a judgment, amemorial of the judgment itself w»^4 be Ifce instrument o^ the manager to r^i&ie. The warrant is a mere «thj»ntf fcshlsV the sum dae out of the Rood* sod chattels of the debtor. Treating the an authority to sell and execute a, tqaasfer of the shares r i doubt the right of the bailiff to demand its registration. The manager is I appi'shend, the master of the Register, he examines the title of a proposed transferee, and upon the evidence adduced voluntarily, or at his request, he. accepts or rejects the, application for registration; his discretion being exercised however at the peril of the company. If the transfer be accented, the register M amended by the manager making such entries as may be essential for the purpose, of giving full effect to the sale and disposition (vide sub-sec 37- and sec. 83). Jf ! the Talictity of the t»*au<fer, in often j words if th- power to sell and assign by i the person erecuting is, a.? is in this ease, I denied, the document has to be, sup» ! ported by evidence in the usaaj way, upon an application similar to the present, or in, an acion at law Finally* the possibility : of a manager'? refmal to register •bailiff's ltran«fer, unaccomoirtMed by the scrip, [ miu'ht be u rge<\ as a difficulty iflrievvitfe «o» i on shares. Ttie point was »»t r"*»s<»^ in the. t-r-junfifnt. consequet tly I abstain from, eTpres*ing an opinion upon ft. Much, ; however, would turn noon the tales of the company (if any). If w^e concede the scrip to be nothing more^ than an indica- + . tion nf title, aad 'hai a prudent purchaser should therefore search the register b?fore completing, it might be that w)iilst the relaxing of a directory rule Ufpi tite^ < an 1 j'ct would be the me*nsof ipcawag 1 ■ to a creditor the fruits of hia judgment the. interests of the com pun v miffht not tH» * affected by so doing. Section %& (though ' rendered inoDerative by the Stamp Act), p. ints, I think, to the rahie ptoeedaaott scrip by the Lesisktate. Thit sectfoa. intended to provide for transfers bj|endorsement upon the certificate — but *>p is . to endorse? ti^t necessarily the pereoiin who*e fnvnr the scrip was issued ; not se, who by holding the scrip, yet having soldi* might, to the unwary represent himself Jo be the legil owner of the shares ; bntttl(| ■■'-" | "person who sh*H then appear on, the, , j register of shareholders." Does n,ottha| denote the litk worth of the certificate tv its holder, surest the registering ol transfers in the absence of the scrip ; andT neceasitnte, for pafe|y'e sake, a reference, to the register at alwimes F The result is that, in my opinion, the manager wis warranted in registering Mr Ching** - } transfer; and that this application must be refined, with costs, £10 KM.— West Coast Times.