DISTRICT COURT, REEFTON.

Inangahua Times, Volume III, Issue 83, 12 March 1877, Page 2

DISTRICT COURT, REEFTON.

'. THtTBKDATf. M^ECq 8, 187?.. (Before IJia Honor Judge Weston.) Bunt Cbw Coju?anx (in LIQUIDATION) AND, GRAHAM AND, AI.J.AN. This was an application calling upon the defendants to, show cause why the sum of £550 ft should not be struck off the liabilities of the abore company as. due to, the defendants. Mr, Button, with Mr Staite appeared for th,e liquidator,, and Mr Newton and Mr Pitt appeared for Messrs Graham, and Allen. Mjr Barton, said that it was his intent tion to move for aa order under the 93rd section of the Mining Companies Act, but a conference held between, counsel, had resulted in an agreement having been come to,, whereby further litigation, in the matter was rendered unnecessary. The defendants had consented to, withdraw their larger claim, against the company upon the condition that they .were alkjwei to, rank as preferential creditors in the estate to the amounts of £500 r> aad these: ter^m a; had been accepted bjf thf liquidator. -%t was therefore proposed that the. liquidator should file a d<ted of assent,' and the only remaining question was as to costs.

His Honor suggested that the matter should stand over for the present for con" stderation, and be called on again daring the sitting. Case adjotuwed accordingly. The hearing of the case of Mace ▼ Lapham and others was adjourned until the nest regular sittings of the Court. In bb Thb Nobih Sia* Company (IN LI^triDATJON.) In this case Mr Pitt moved uptn the affidavit of W^Ham, Hugh Jones, sen., that the name of William Hugh Jones, jun., he removed from the list of conlributoriea of the ahove company, and that the name of F, Franklyn be substituted. Hia Honor inquired whether th«re was any document to show the right of petition to move in the matter, the person whose name it was proposed to remove being a miaor. ■ No such proof having been filed, Mr Pitt asked for an adjournment of the case to, the nest sitting of the court. His Honor said that the North Star liquidation had. been a my long time ttaading already, and the Court would re. quire some very aubstantial grounds for granting any such adjournment. The Company ought- to be wound upu Mr Guinness said that he appeared for the largest creditor in the estate, and the only one who was believed to be sobent. He had) already paid large sums of money into the company, and would he a great sufferer by a further protraction of the liquidation. It appeared that Mr Franklyn had not been served with notice to attend in time, but he (Mr Guicness), could not understand why Mr Ifranklyn had not been summoned in time. It was well known that Mr Franklyn was about disposing of his business and retiring from the district. His Honor inquired why Mr Franklyn was not in attendance. He should have been present. Mr- Newton, said that he represented Mr Franktyu. H|i9 Honor said in a matter of so. much importance it was impossible to proceed without Mr Fraaklyn. The Court was tired of heading the case- It was to the intereat of the. creditors aAd contributor ries alike that the process should be closed as early as possibje. The case would have to be called on again, during the present sitting. Fbiday, Maech 9, 1877. Me Rainy Cbees Cojgpany (in liquidation) v. Graham and Alien. Mr Button, said that this case had stood oxer from the previous day in, order to allow the Liquidator to, ftle a deed of assent to the terms agreed u^oa between the patties,, 1 he. deed bad< been prepared and signed by all the creditors wh/> had proved in the estate. The conditions, as already expressed*, were,, that upon Messrs Graham and Allen being made preferential creditors in the estate for the sum, of £500, they .(Messrs Graham and .Alien} consented; to forego their- larger claim against the company. Messrs Graham and Allen had agreed to execute a full re« fea se to the liquidator, and all that was now required was the ratification of the Court to those terms. The terms were satisfactory to both, parties, and it was a matter for congratulation that what promised ta give rise to a protracted hearing had been so easily settled. Hia Honor was glad to hear that the ease had been settled satisfactorily, and that being so the Court fully endorsed the action taken. The Court waa of course only anxious to see the rights of the pasties fairly adjusted. Messrs Graham, and Allan, so far as the Court have been able to gather, from, the facts b«tore it, deserved protection,. They had at grea£ expense erected the machinery, and in. doing so hivl risked a large sum of money,, and men who embarked in such undertakings in a field like this deserved encouragement. If the shareholders h»d come forward at the proper time and protected their own interests, as they undoubtedly should have done, the company would never have been placed in the present unfortunate position. Mr Button said that the only question remaining was aa to, coats, and he- bad considered it better that they should be settled by the Court. He appeared to a3k for the costs, of the National, Bank, who moved in. the matter. The Liquidator offered no objection to costs being allowed the parties.. His Honor— Let both the parties have their costs. The National Bank are entitled to coats,, as also Graham and Allen. There waa no reason why the latter should be made to suffer. Mr Button said that the costs in the oase bad been very heavy, counsel having been retained from Hokitika and Greymouth. His Honor—While the Court censurea the shareholders of the company for their neglect they must not be punished too severely. M» Button pointed oat that the National Bank, was, the largest unsecured creditor. The costs were set down at £50. His Honor inquired what sum Messrs Graham and Allen asked. Mr Newton said they were wiljing to accept the same amount. His, Honor said thate if ther were a ' greater number of local practitioners the Court would not feel warranted in allowing special retainers ; but as it was under

the circumstances almost necessary that outside aid should be called in, a more liberal scale would be allowed. Mr Button pointed oat that they also required the aid of a more extensive law library than could be expected to be found here. His Honor was of opinion that a library should be provided. He himself had to provide one. Mr Button said that the cost was disproportionate to the practice of any but large communities. His Honor said that £300, with an annual expense of about £30, would provide all that was necessary, and the gentlemen could unite far the purpose of providing it. After further argument his Honor said that he would allow the National Bank £35 costs, and Graham and Allan £40. These cosis to be paid out of the estate i after payment of the £400. Mr Button said that a.s there was no doubt aa to the ability oS the estate to pay off the claim, they were quite satisfied with the order. Re Golden Thba,sueb Gold Minims Company (in liquidatcon,.) This case was partly heai'd on the previous day, and adjourned to give the Court a further opportunity of examjojag the debtor. Peter McDonnell having been called was examined aod said— l am an expert* encedf miner. Have been mining for six* teenjears. X have had the full rate of wages current in the district. There is only the one rate of wages here. All miners get the same rate of wages on this field-Whey all receive £a 108 per week. His, Honor said that defendant being an experienced miner was no doubt able to command almost constant employment at £3, 10s per week. He was a single man, and provided that he was sleady he should be should be able to live on £2 per week. The Act under which the debtor had been brought before the Court was not intended to punish men merely because they were in debt, bat to make those pay their debia who were able but disinclined to do so, and in defau.it to send them to gaol. It seemed to his. Honor that ihe defendant was well able to pay the sum of £6 per month towards tbe liquidation of h's debt, without cosis, failing which, he. would, be ordered to. be imprisoned in tbe public gaol at Weatporfc. It might possibly be that the de« fendant through sickness or the loss of employment might not be able to comply with the order, in which case it would be fpi him, to, throw himself on. the mercy of the Court. The first payment to be nwde on the Ist of April. ]£a?eb V, Hall. This was an appeal from the decision, of Mr Warden Shaw. The facta of the case will be fresh in. the minds ot the public-, the case having only recently been heard, in tbe Warden's Court. Defends nt in the Court below waasued for encroachment upoaa town section, when the trespass was held, by the Warden to be established^and the then defendant was fioeJ in tbe su,tn of £25, and ordered to withdraw, against which he now appealed. Mr Button with Mi* Pifct appeared for the appellant, and Mr Slaite for the respondent. Mr Button in opening the case said, that the grounds of the appeal were— fiist, tha,t the complaint in the Court below, disclosed no cause of action ; and, second, that there was no, evidence to justify the damagea awarded. Haying referred a£ some length to, the case, he called Edward &haw— % ata a Warden of the Nelson Sooth -West Goldfields, at Eeef. ton. I recollect the hearing of the complaint Kaier v Hall. Mr S4ah<e, who acted for complainant in the Court below, called the defendant. The dispute was as to section 322, It waa admitted that Kater had occupied some 26| feet of the section in question for a period of two years. He had fenced it off and cropped it with garden stuff. The remaining portion of the section was unoccupied. The sectioft was applied for by complain,* ant. The evidence of damages was as to the fencing. It waa proved that there was a fence and a crop upon a portion, of the section occupied by the then, complainant. There waa distinct evidence that the defendant forcibly knocked down the fence and destroyed the crop* the whole being valued by complainant in a lump sum of £25. Thei© was no evidence tendered to show that the damage* estimated were excessive, but it was sought to justify the trespass, the evidence of the complainant was that he had lost the ossttpaiion of the land. " Cross-examiaed-^E gave judgment for the full amount claimed. % had a good many reason for fixing tbe damages at Ihe sum awarded. I stated that T, had a. special reason, for awarding, the full amount claimed.. This reason was. that defendant had by & high-handed trespass taken, forcible means to acquire tbe occupation of land whioh he hae no right to, and the ownership of which be had sought to acquire by misrepresentation in my oifice. I have- no hesitation in saying that defendant by his agent had grossly misrepresented the state, of affairs to me at the time that be applied to purchase the section,, and this to the injury of the complainant. As to the damages or trespass, there- Was no rebutting evidence. The. misreprjientation weighed strongly with me in awarding the damages, and in making the |emarks I did. Defendant represented at be had occupied the. sec*

tion for some time beneficially, the fact heing that complainant occupied it. Re-examined— The acmal evidence of damages was as to the entry five or six weeks ago, which entry defendant attempted to justify by the consequences of bis wrongful act of misrepresentation. It was upon the entry that the damages were bused. By the Court— The date of the entry was not raised in objection. This was all the evidence called, Mr Button proceeded to put the case for the appellants, contending at some length that no cause of action had been disclosed, and consequently no damages could be awarded. Mr Staite addressed the flourt in reply. His Honor said that he would reserve bis decision. Similar cases might possibly arise in the future, and it would be as well to have a definite ruling fixed. There were some authorities which he desired to look up, and he would take the earliest opportunity of forwarding his judgment to counsel. Judgment reserved accordingly. %c Julius YoGßit CoajpiNT. I In this case Mr Staite appeared to show j cause why the name of James Clinton ! should be removed from the list of coo* ' tributaries of the above company. Mr Pitt and Mr Newton appeared for the liquidator to oppose the aj plication. James Clinton — I am a farmer residing at Hampden. but formerly carried on business at Reefton. I am the person named in the transfer produced. I sold the shares out and out to a man named Kelly. Before leaving the district I sold all my mining interests. I <as advised to sell all my interests in consequence of 'leaving the district. Kelly, the transferee,, is. a miner working I believe up the Bujler river. I cannot say whether he is a man of means, but believe he is as well able to pay the contribution, as. I am. The transfer was registered in Mr Davies's office. Swear that the sale was thoroughly hona Ode. Cross-examined— l cannot say that at the time I sold oal there was any talk of winding the company up. To the best of my belief I had no idea that the company was likely to be wound up. Tae consideration named in the fansfer is £5, but no money passed. I don't know, why a fictitious sum was named in tUe transfer. The shares were in Mr Davies'a hands for sale, but he did not sell them. I was a director of the company. Never knew that it was a rule of the company to witness the signatures of transfers. I witnessed Kelly's signature, and he witnessed mine. The affair was so hon&jicle that it did not strike me as being wrong for me to fitness his sign,»iuiv. I did not pay or promise Keily auy.hing for taking the shares. The shares at the lime were w,orib something, but I was leaving the district and wanted to get rid of them. I paid all liabilities up to the time of the transfer. 1 can't say that I didn't trausTef them to avoid future liability. I was not in a position to pay calls w,hich might be made in the future. It was about a month after I lei't Reefton that the company was placed ia liquidation, By the Court — I will not swear that I did not know that a letter had been received by the company from Mr Campbell demanding repayment of overdraft. Cross-examination, continued— l may have seeni the letter from the Bank produced, but einnot say positively. Re-examined— The shares were really and absolutely made over, and I could not claim them again. It would not suit me to hold shares and pay calls as I had gone into another speculation, and required ail my money. I know nothing of Keily's position, Patrick Kelly—l am an hotelkeeper in Reefton, and recollect speaking to Mr Clinton about his shares. He had gone iato farming, and I recommended him. to dispose of all his interest. I was aware that Clinton had sold to Kelly. I know Kelly. He is a miner, but I know nothing of bis means. Believe he is working up the Boiler. lie is not a relation of mine. Cross-examined— l never knew how the Sir Julius Togel company stood. Clinton never told me that he waa anxious to sell the shares.. , William M'Lean— lam the Liquidator in, the Sir Julius Yogel Company,. The proceedings were commenced early in Jane. The calls made prior to the liqui-dation-were nearly all paid. The liabilities at that time were nearly £300- Am aware that a letter had been written by the Bank of New Zealand to the company demanding pajment of overdraft. This was some time before the liquidation. The rules of the company require that transfers must be attested by at least one witness. Don't know Kelly. Cross examined— One of the reason's why I put Mr Clinton's name on the Hat was because I thought there was no such pet son. as Peter Kelly. The method of attestation, on. the transfer led me to believe that Kelly was a myth. This closed t c evidence, and Mr Newton, and Mr Staite having both, addressed the Court, H.is Honoc said, that so. far as the case had gone the facts would not warrant the Court in ordering that Mr Clinton's name be retained oa the list. There was no evidence before the Court that the company at the time was in an insolvent condition, and that applicant had a knowledge of the insolvency. The Court bad little doubt as to the real nature of tho transfer,

but there was nothing to rapport an, assumption of fraud. In order, however, that the case might be more folly ventU lated, and the fullest opportunity given to. the Liquidator to bring up fresh evidence* the case would be adjourned till the &** lowing day. Adjourned accordingly. In re thb Jvwva Voott Courutx (nr mqotbation) and W.B. Akchbb. Mr Pitt applied that the name of William Brown Aroher be removed from the Hat of contrtbutories of the above com* pany. He said that applicant never was a shareholder in the company, and waa consequently improperly on the register. Mr Staite appeared to oppose on behalf of the liquidator. William Brown Archer— l first became aware that I had been made a share* holder when I saw the declaration adver* tised in the paper. It is absat twelve or fourteen months ago. I received notice* of calls struck in and March* and refused to pay anything. I was sued for the calls, and the Magistrate gave judgment for the amount because I was on the register. I was sued twice. I never acknowledged the shares. The pre* sent application is the first one I have made to get off the register. I neverbought any interest from Anderson* Never gave him £5. Be told me that he wonld put me in for a "good thing,** by giving, me a share in the Julius Yogel Company, but I declined to accept it. The reason I did not apply sooner to get off/the Kst was that I was toM it would be time to do so when the list wan presented. I never paid a farthing for an. interest in the Julius Vbgel Company. I fever promised Dxvies that 1 would pay the first call. When I came into town, after seeing Anderson, I made inquiries and was told that the undertaking was no good, and the best thing I could do was to keep clear of it. Louis Bavies— l was lezal manager of the company. I put Archer's name- onthe register from a memo given to me by Anderson. Archer was served with no-^ (ice of the calls, made. He disputed theownership of the shares when the companywas going, into liquidation. Before sum*, moning him I asked him to pay the calls, and he promised that he would pay thefirst call. He was sued for the calk and judgment obtained agiinst htm. Cross-examined— He said he didn't think he bad any right to pay as be had never signed the articles of association.. He lives at Boatman's, and is a share* bolder in other companies of which I am tn infl.aer. He holds: 1000 share?.. 1' received no authority from Archer to. . place bis.n?meon the li«t of shareholders., Don Psdro A nderson^l bad tometbinffc to do with tho fbatiug of the Sir Julius. Yogel Company, ant know Wvß. Archer.^ I " h;»d & ve-y large interest in the compiny. I had a conversation witki Mr Archer in reference to this, company,, and he said- he would take an interest. W. B Archer, recalled— l have heard the evidence of JP^vies. I* am a share* holder- in othor companies of which he is ! manager, He spoke *o me about calls in those companies and I r promised to paythem, but! never in my life told him that I would pay calls in- the Sir Jultns Yogel Company. I made inquiries, about t\e company, and from, what I heard made an my mind not to have anything to do. wii h it. This closed the case, and counsel having* addressed the Court, His Honor said this. wa« a- most unfortunate case, and it wa* to be deplored? that Mr Davie*, the m*oa?er of the com*, pany, so improperly p'sced the name on the list; but wh«n MV ifreher found, as be admitted; tHat hi« n »me bad* been in« eluded a&a shareholdev it was his.dntyto have come to the Court for relief. This, he- did not appear to have done, but laid by and* stood his. chance of the venture, turning uptromps, and it was not until months, after, when he became liable for calls, that he thought proper to* dispute, the ownership. Upon being sued* for the calls, instead of at once coming to.thig: Court for relief he defends theactton. In the face of these- facts,, the Coarteouldt not feel justified in ordering Mr Atelier's name to be removed from toe lisfc If men permitted their names to remain on, the registers of comp>n>eg, and if upon, the faith of the registers, credit was. given, it was. their own fan t if they suffered.. He much regretted- the position, in which the petitioner stood', but he alone waa to, blame, and the Court could not grant him, the relief -sought fov Name ordered to remain on the list.