DISTRICT COURT, REEFTON.

Inangahua Times, Volume III, Issue 66, 19 January 1877, Page 2

DISTRICT COURT, REEFTON.

Tfbspat, Janttaby I6ih, W7. (Before His Honor Judge Weston.) lie Sib JvLwa Yogel Company (in Liquidation.) Mr Pitt appeared upon the adjournment to move for an order settling the list of contributories. Mr Staite appeared to oppose on behalf of John Chiqg. Mr Pitt said that before the case was finally closed he should like to ha,ve an opportunity of re»exam,ining Mr Ching. John Ching, cross-examined ; At the time I transferred, Mr Campbell of the Bank of New Zealand had not seen me with reference to my being a shareholder in the company. It was some weeks after the transfer was executed that Mr Camp* bell spoke to me. He did not tell me that be had given notice to wind-up the company, He asked me to make the ap* plication for the winding-up order. Prior to my transferring I had no knowledge of the fact that Mr Campbell intended to wind* up the company. IJis Honor s, As a matter of fact, did Mr Campbell move for the winding-up ? Mr Staite : No, it was done upon, the petition of a shareholder. : Examination continued i I was not aware that Mr Campbell had wrtiten to the company demanding the payment of the bank debt. Davies told me that when all the calls which had been struck were paid there would be nothing owing by the company. A call was struck after that. I was aware at the time I transferred to Escott that he had money. I have heard since that his aunt died and left him £700, but I cannot speak as to thetroth of the report. Mr Pitt assumed that the action of the opposition was to have Mr Ching's name removed from the register, and as .such the opposition was merely a device to evade responsibility, and he felt that the Court would not countenance it. His Honor; But I must have, some proof first of the want of bona fides. The mere fact of the sale having been for 30s was certainly not proof of mala fides. Mr Pitt thought it could not be contended that the transaction carried bona fidea upon the face of it. His Honor : But the consideration wbu*ch passed may for aught I know have been the full value of thi Bhares at the time. It is sworn that the sale was a ■ bona fide one. Mr Pitt thought that from the affidavit and tlij^Ti&fa^Tftlducea it could, hardly i

be said that the sale was bonafide. His Honor : It is sworn that the sale was an out and out one, If there was anything behind the transaction it has not been disclosed tome. The meie fact of this sale having been for 90s was certainly not sufficient to support an allegation of fraud. Jf you can show me anything tangible that the transaction was fraudulent, I shall be very glad to hear you. It is not the desire of the Court to strike off the name of any contributory who should be held liable. Mr Pitt adduced authorities in 'Lord Westbury's judgment upon the European Assurance cases. His Honor : But that class of oases do not apply. In the cases mentioned there was express evidence of fraud. In one case it was seen the son transferred to his father to merely shirk the liability, the evidence of which was that there was a secret understanding between father and son, that the latter should reimburse the former for all subsequent demands in re# spect to the shares transferred. That could certainly not be called an out and out sale, Mr Pitt was certainly not prepared to affirm that there was any secret understanding between Ching and Escott. His Honor ; In Lord Westbury's case not only was it shown that the case was for a nominal consideration, but the transr ferer had given the purchaser an indemnity against future losses in respect to the shares transferred. That was an element of fraud. In ali that class of eases there was express evidence, of mala fides. Such, for instance, as the transferer describing the purchaser as a " sheep farmer," the latter turning out to be merely a shepherd, and so on. There the fraudulent representation was made to the directors for the express' purpose of procuring the transfer. Now, in the, present instance, what evidence of fraud has been disclosed 9 Mr Pitt : The affidavit of John Ching states that at the time he transferred he believed the prospects of the company to be good, and his only reason for justifying the transfer waa that ha objected to the management of the company, His Honor : that affidavit declares that the transfer was bona fide, and that the sale was an out and out one. There is no evidence before me that Mr Cbing transferred for the purpose of evading liability. Mr Pitt s There was the allegation that Mr Ching was aware of the position of the company. His Honor t Then you sas that because the company was wound up some time after bis transfer, that 'was evidence of fraud P His Honor proceeded to read a decision delivered upon this point by Mr Justice Woods. In that case, his Honor proceeded to say, the case was an appeal from a decision by the Master of the Bolls, which decision went to show that unless the shareholders and the di* reotors were satisfied of the inability of the transferee to pay the calls, they not only had the discretion but were bound to refuse to accept the transfer. That was precisely the argument adduced by Mr Staite in the case of Sheedy and the Rainy Creek Com.pany. He (his Honor) did fldfc know whether Mr Staite had actually seen the authority in question, btffc %b could not possibly have hit it nearer thant he did. BuTthe finding of the Master of the Roll^igS-h&n upset by the authority already, ditec!, asa it was quite clear that the trattda'otiojqi to hold must be bona fide, and being so could not be set. aside. In Parr's and kindred cases thefe ftas $MP* parent misstatement of tb# Jte&» to in|liee the acceptance ot the transfer— th,ere'%ai a direct misstatement of the facts to the directors, and it was clear that in all such cases the transfer could not stand. The principle was borne out in Costella'a case. There the son had shares in a bad company. He consults a broker, the result being that the shares are sold to the father for the sum of gs 6d, and the son provides the purchase money, and when the company was wound up the liquidator went to the Court of Chancery and asked the. Master of the Rolls to over* throw the transfer on the ground of fraud. In that case there was a reasona* ble Show of fraud, but here there is none. Under all the circumstances, I cannot do. otherwise than order that Mr Ching'a name be removed from the list of contributor ies. Mr Staite applied for costs, His Honor thought the case was one for costs. — Mr Pitt said it was the duty of the Liquidator tft protect as far as possible the interests of creditors, and therefore he had only been performing his duty in opposing the application. His Honor said that be bad no intention of casting any reflection upon the Liquidator. He was not only right, but it was his (Mr M'Lean's) duty to protect the whole of the estate as far as possible. It might be that Mr Ching had some motive in releiving himself of the shares,. but, at all events, no evidence of that character had been adduced. The costs Would be assessed ot £6. 65, to be paid* out of the estate* EramA Caucot (in Liquidation). Mr Staite moved for an order that the list in the above company be settled. His Honor : Is everything in order R Mr Staite assured the Court that every, thing was in order. Order made for the settling of the list,

Re Band op Hope Company. Application adjourned until the next sitting of the Conrt, - j Victobia Company. Applications adjourned until next sit* ting of the Conrt. His Honor : In respect to these orders ; let me make one remark. Of course the effect of these orders is to close the registers of the companies. Probably that might work an injustice to some share* holders 5 therefore, it is necessary that proceedings of this character should not be protracted. Mr Pitt recognised the justice of his Honor's remarks, and would see that ex* pedition was used,. The Court then adjourned. WILLIAMS T. SHAW. His Honor % Is that exactly so. That would imply that the magistrate acted within his jurisdiction ; but you go on to say that the magistrate acted in excess of his duty, Do you not start there with an evident contradiction. Mr Staite admitted that the action did not come precisely under that section, Mr Pitt said the action was for false imprisonment, which implied one of two things, either that Mr Shaw had no juris* diction, or that be exceeded bis jurisdiction ; but no evidence had been tendered to prove either the absence or excess of jurisdiction. The action was confined to an issue for false imprisonment after the issue of the judgment. His Honor: No evidence has been placed before me to show that the magistrate had not authority to decide upon the case, and assuming that he had power to find upon, the case had he not the power to commit? If then my view is sound, la the plaintiff within section 4 ? There is an allegation that the magistrate did something in. excess of his duty, but the plaintiff did not deny the right of the man Murtah to obtain securities of the peace. I cannot avoid the opinion that the action throughout has been wrongly conceived, and it appears to me that the only question now to be argued is, as to whether the magistrate was justified in send* ing the man to gaol without a warrant ? Mr Pitt did not see that the point arose upon the pleadings. His Honor ; Why P Mr Pitt : Because the proof of malice has failed. His Honor : Not so. A man may be liable for false imprisonment, and yet not be guilty of malice ; but if he sends the man to gaol without reasonable and probable cause, legal malice 19 implied. I think Mr Pitt it is for you now to show me that the magistrate was justified in sending the man to gaol without a warrant Mr Pitt regarded the declaration as so vague that he had difficulty in meeting it. His Honor ; Then it was for you to move for particulars. Mr Pitt : We acted advisedly in the matter. Yesterday your Honor pointed out that there were two courses open to 4heJphuntiff. If he proceeded upon one, it, was essential that he should prove rJftalice; and if upon the other, it was not 'necessary to prove malice, and when cor* j nesed the other side elected to go under j see. A, in which it was absolutely neces* siiry to prove malaee, and in that they had failed. s.Jttis tfdnort Yes, Mr Pittj but I am Bot sitting here as a special pleader, but 4Xk Mo Justice between the parties, and if the declaration does not fit one section and JtfUs anotber t I am to act fairly and between the parties, and if the Jweeutraiion can be applied it is for me to $$n|si it' It was after all not necessary *m v fhe District Court that the same care should be exercised in framing a declaration as was essential in other Courts. All that was necessary to show was a reason* able cause of action. In this ease the de« oiaration was not sufficient, but the defence had accepted it by not objecting, Mr Pitt said that when the other side elected to go under section 4, he withdrew all objection to the declaration, and it was solely upon that admission that he had not objected. Now the other side desired to shift the ground of action. His Honor 1 Mr Staite was very care* ful not to commit himself to anything. He left the Court to place its own con* struction upon the declaration, and I shall endeavor to do so. However, as he had already said, the matter resolved itself into a dry question of law as to. whether the magistrate was justified in sends ing the man to gaol without a warrant. But even assuming that the magistrate was not justified in committing without a warrant, the error after all is but a trivial one, as we have it in the evidence of the plaintiff himself that he had intended in any case to go to gaol, Mr Pitt submitted that a reasonable time was necessary to prepare the warrant. His Honor ; Yes, but it is shown that the committal was made before 1 o'clock, and the warrant was not made out before the evening. The question is, is that more than a reasonable time ? Mr Pitt still held that the- mattes did not fairly arise from, the declaration. His Honor; Yes, Mr Pitt* but you should face the difficulty, I am sure you cannot fail to see it, and why not deal with it at once. When a judge asks counsel to argue a question that ia either done, or a frank admission made that it admits of no argument. Mr Pitt trusted his Honor did not think he was afraid to face the argument. He did not wish to travel beyond the declaration. It was hardly his province to do so. His Honor: ; But how can I think otherwise, Mr Pitt.. $ have directed your attention to one particular point, and I should like to hear you, upon that. If 3 on. ore not disposed to go into it why ofj course, the case is at an end, for it ap* pears to we that that in (lie only point ,

upon which I desire your assistance. Mr Pitt said be was not prepared to answer anything bat what- was alleged in the declaration. The other tide had the dominion of the case, and could bring on the action in any form they thought proper, and he (Mr Pitt) had kept his defence within the four corners of the declaration, and that he conceived to be the utmost of his duty. His Honor said he would rely upon the case as it stood. It had been Mr State's contention all through that his action was against Mr Shaw both privately and j in his official capacity. The action being j brought against the Eestdent Magistrate, j it was clear that notice of action was necessary under the 12th section of the j Justice of the Peace Act. It was beyond all question that in actions of the kind the notice of action was a condition precedent. Under the -following section it was provided that special pleas need not be pleaded in writing. Mr Staite had admitted that the plea was a special one, but notwithstanding the generous offer of Mr Pitt, he (Mr Staite) had failed to bring himself within the section, therefore the hardship upon the plaintiff could not be advanced. Hold* ing, therefore, as he did that such notice was absolutely essential, he could not do otherwise than dismiss the case. He regretted that he could not dispose of the case upon its merits, but he could not consistently with justice to the parties overlook that failure in the proof. As to the merits of the case, he would express the opinion that there was nothing in the evidence of either Williams or Murtah to support the plea of malice. It was evident that French having heard the statement of Murtah and having an interest of bis own to serve, went to the magistrate, and the latter, very properly, desired to hear Murtah, who was accordingly sent for to more fully and accurately detail the ininterference to which he had been subjected at the hands of Williams. That ! certainly could not support an allegation of malice. Again, at the subsequent trial what did Murtah doP He sop* ported the allegations he bad made against Williams ; gave evidence of the truth of the charge he had laid, taking exception only to the prayer of the information. If the e?idence in the opinion of the magistrate justified the conviction would it sot also justify the committal ? Under all the circumstances he had no hesitation in dismissing the case, Mr Staite gave notice of appeal.