DISTRICT COURT, REEFTON.

Inangahua Times, Volume IV, Issue 36, 2 July 1877, Page 2

DISTRICT COURT, REEFTON.

Tvesbat, June 26, 1577. (Cjfo.'o H"s Hem.' Ju-ljo V/t . oj ) Upou the Court resuming, Mr- Button asked whether Mr M'Lean would be *.b* lowed lo address the Court u-.cii a matter connected -wi. a tue liquid Lion* of the Sir Julius Yogel Company. His Honor said that ony explanation of the kind had, perhaps, belter be made in Chambers. Mr Eutton said the explanation which the liquidator desired to make was of an entirely personal native. He wished to refer .o some rem vks made on tbe proceeding day by Messra Staite nnd Davies in reference lo the winding up of the Sir Julius Yogel Company, and desired that the explanation should be made in open Court. His Honor— Had no objection to heav tbe explanation. Mr M'Lean said tbat he had been for some time acting in the capacity of liquidator, and he had endeavoured to the best of h:s ability (o discharge bis duties fairly and conscientiously between creditors and coutribuloiics alike, but he found that recently be bad made certain ononis* Aaion&sfc faese was Mr Staite, wbo as a solicitor, wns privileged to stand up in the. Court and cast all kiuds of reflections and insinuations, and be (Mr yiT.san.hadno opportunity of replying to them, end was therefore compelled to sit quiet'y and listen to ti-em, and thereby probably |lead Ibe Court to believe that his (Mr Slaile's) statements were tiue- Unless,' therefore, I am protected : n some way from tbes c attacks from a person like Mr Staite— His Honor — Beally I cannot permit this to go further. While I have evevy cotifiderce in the liquidator, I cannot allow ins: oua: ions of this oharaoter indulged ia this Court. Mr M'Leau—Theu your Honor I feel compelled to teuder my resignation as liquidator of nil matters in my hands. 1 have thought the matter over-very corefully, and I have como lo the couclnsion that there is no other couuo open to me than the oue indicated. Mr Stake— As I have been refevred to in this mailer— - Ills Honor— l have a'ready board suffi-* ' cent of this mst.'er \T.v Staite, and I woold rather not trouble you furthe: 1 . As far as the liquidator is concerned it isa m titer of regret tbat tbese unseemly disagreements should be permitted to crop up iv Cou.t. As far cs regards the resignation of Mr MTjean, I shall certainly not accept his re?!gnaiion unless it is'showu that I aw compelled by the statute to do bo. Mr M'Lean— lt is entirely owing to the reflections cast upon me by Mr Staite that I wish to. withdraw. I liis Honor — I baye now indicated ibe course I intend lo pursue in tbis matter, and it is belter that tie subject should not be pursued further. We all know how easy it is fov attacks to be \unio upon persons hoMing \ public positions, and Low difficult it is at times to rebut these attacks. Put pn was recently pa. J d by, I thl'A-.'lle Chief Jushce pf Victoria, in. such emergencies rolianco must be; bad upon the good cense of the com* munity. When tliese' attaoks are* unjust and unmerited, they fall perfectly harmless, and thero a: c in every community" a sufficientSuumber of persons who will regard tbem simply for what tbey, aye worth. Asa iiu^e of tbe Court, I at present know of uotLiog to warrant ony aspe: sious'"upon (be conduct 1 of the liquidator, and until I Lave something tangible before me I shall treat tkem with indifference. It may bo true that there aro grounds for the reflections cast, but at all events they are not before mo, and I cannot, therefore, assume anything. Unl.il, therefore, charges aro laid before rae and substantiated I sb;>ll contiuuo to treat tbe liquidator with every respect. I may repeat in couclnsion that the Court has full confidence in the liquidator, aud if bo has not sufficient strength of mind to hear the attack he mist be made to. Iv the mcaatime then, I c.innot think of accepting the resignation tendered. Bir Staite — Wiil your Honor permit me to expla'n — His Honor-*-!! must be firm in this matter. If you li.-re nny ch.vge to make against tbe liquidator, you, ns a solicitor, kuow fall well iiorr to deal w'.ta it. let the tlie business of the Court proceed. Ia tho maLer of the* Sir Joxlu • Vogh'j Cowa .to (ia Liquidation), and v\ !12. Gtjxlinb. -Mr Button, with Mr Kit, eppeared for tbo liquidator, io move that the name of Bobert "Evans Gulline be placed inon the list of cofltribatoriea of tho above Company. Tho application, he said, nas made iv a different form to that of a previous occasion. Mr Galline, wholwas unrepresented by counsel, said that he hud only been served With notice ol r.etloa that mOrniug, ahd hp.d therefore had ne<cp-„>orlan!ty of consulting a solicitor! ' " ' . Mr Button would not oppose an adjournment il Mr Gulline desired it. His Honor— Au adjournment until whe*a P ' Mr Gulline — Until the nex. silling of tho Court. His Honor—The question involved is a dry point of law, aftd tbe whole matter bangs merely upon tho interpretation of s section of the Aot. 4 i 1

Mr Gulliuc— Mr Guiimess bas hitherto acted for we in tbese caiee, aud I should like to hare his assistance oa the present occasion. His Houor— Tbe position of ihe ease ia this:— At' the forme.* heariug 'it was not allowed \ -at you were aware of the ox*> isfcence of the debts of the Company at tbe line you trausfevred, and suoh evidence is to be brought forward now. In giving judgment npon the previous occa» sion, in the absonce of any ovidcnce upon tbe point, I could not assume tbat there were debts. Now, however, Mr Button will argue tbat there were dobtsjj and thatyou are liable for your proportion of tbem up to the time you transferred. As tbe facts are presented tbe cose seems olear enough, and will hinge altogether upon the interpretation of the 31st section of tbe Act. A fter some further discussion, Mr Gul* line consented to rank as a contributory in tbe estate for his proportion of tbe liability up to the (ime of transfer, aud ibe amount was ultimately assessed at £15. Mr Gulline said that, thongh consentto tbis, he did not consider tbat be was justly entitled to bear auy proportion of i tbe liability, as previous to bis tvaus- | ferring he went through the whole of the accounts with the Directors, ascertained the exact amount of the indebtedness, and struck a call to cover it. Before resigning he paid his proportion of such o-jU. In the matter of the Raixt Cbeek Com-. pant, (in liquidation) and various Contributories. Mr Button re-appeared to support the application of the liquidator for a settlement of the list of contributories iv the above Company. He said the next con* iributory objecting was James Stewart. Stewart alleged that he transferred his shares absolutely. A transfer from Stewart, in the handwriting of Mr Beit, a sbarebroker in Hokitika,. was in the possession of the liquidator, but Mr Beit had been written to upon the sub* ject, and replied that he could not recollect anything of the transaction. Beit is alleged to have witnessed the transfer Stewart had bad notice from tho liquidator to appear but bad not acted upon it. The liquidator was not in a position to submit any evidence upou the matter. Tbe transfer wns dated Bth June, 1876, ancl was registered in the books of ibe Company on the 10th of tbe same month. Tbe transfer was signed by Mr Cornfoot as attorney for Stewart. His Honor said it wns quite impossible to mako any ordor in the mutter at pro* sent. Further evidence would bare lo be tendered , and in the meau'tiuie the caso would stand adjourned uatil tbe next billing of the Court. In tbe snno ")Tatt3?. and Wiiltam B. Btrxciß,nnd Johx BuxsTaonx;. %i** Theso esses wo.'*** somewhat similar to tbe former,, nnd wero also adjourned. In the same Math;,-, md Edwaho Shaw lapiiam.. ■■ Mr J-'itt on behr'f of tbo cou'ributo:y named :noved for an order to remove tbe name of 3. S. Laphcin from the list of contributories iv tbe above Compauy in respect to 1000 shoves. Mr Button appealed for the liquidator to oppose the application. Mr Pitt said be moved under Ibe 97. b Section of tlie winding up provisions of "Tbe Mining Oompanies' iot," and tendered the rffidaviis of !i£. S. Lapbaui and G. W. Moss in support. Tbo uffidavit of Mr Laphaia set forth, that on the 29th of May, .1876, 1 sold absolutely to Heu.'y Goss, of Gioymoutl), 1003 shares in tbe Bainy Creek Company for the sam of £12 10s ; tbat the purchase money was paid to me upon tbe execution of the transfer j tbat the salo was bona tide ; that after such sale deponent held uo iuterest, either legal or equitable, i.'i the said Company ; that the name of Goss was entered iv the books of the Company ; that the uame of Goes wns enie.ed in the boots of the Com* -.any, nud after the date of such salo tbe Company made two calls upon Goss in respect of such shares, that iv respect to call struck on the 14lh June, the Company sued Goss for the amount thereof, and lastly tbat at tbe time of such sale nud transfer Go»3 was in a good position. Tho affidavit of G. W. Moss ran, that ou or aboxit Ibe 29th May, 1870, he was called upon io witness n. sole or s.u-res in tbis Cpmpauy from Lipba.a to Goss. The consideration was £13 10s, and was paid in deponent's presence. Mr Euiton expressed a wish to furiber examine M V Laphnm. Edward Shaw La-mam— ■ I am manager of the Bank of Incw Zeabud ia Greymouth. Tiie coulen's of my affidavit nre true. My reasou for Irausfomug was that I could see ibe company was being mismanaged by the Direcio.s, add I therefore sold my shares for Bd each, not irom any Want of faith i.v the uude .-taking but simply, through the; proceedings of the Directors, PlhougM ibat tbe coin-* ; pany, uude*." proper management, wonld * pay, aud I believ*- it is now tvroi'tg out ' so. I. hod not s .fficient influence in the Company lo alter the directory. The mismanage. nent referred to consisted in ' the compsuy lel'.iug the breaking do»rn ( of sioje by cou! -act, and it was a no* ' torious fact kat the contractors were putting through us much mullook as stone. ] My transfer be.irs tbe same date rs ' Huugerfcrd's. We consulted together * before selling. He originally bought into tbo com^iy upon my etdrics, and wheu, I

we Baw h.vt the underiskiDg was beiug carried on we decided to get out of it. Doth sales were effected at the same time and to the same person. Henry Goss ' was in employment iv Greymouth, and remained there after the sale. Ifc was Hnn*;erford wbo found Goss 09 a purchaser of the Bb3i*es. T'io money slated actually passed at the time. I cannot say whose money it was befe.-e I received it. It was not my money until I re* ceived it. By His Honor— l cannot ray wbere Goss got tbe m>ney from. Examination continued— l 'did uot provide tbe money for Goss either directly or indirectly, nor did I refund it. The salo took place iv my office iv Greymouth but tbe money was paid in ihe office of Mr Mos9. Hi** "Honor remarked that Mr Moss' affidavit was of little importance, as it merely wont io 6bow that the money passed. Cross»esaminatiou continued— l do uot know where Goss is vow. It 13 probable that when he found tbat he was likely to be sued for the calls ho left the district I took no moans whatever lo get him j away from the distriot, nor did Hungerford to my knowledge. I did not provide the money to convey him away. Gos3 was working on the railway. Hungerford was the contractor. He had been at work for three or four months. I knew there were debts due by the company jl knew there was an ove-draf? at the (National Bank, hut thought ttie ainonat was only a few hundreds. I was not aware that tbere waß a mortgage on ihe machinery. I d : d not know that the uncalled capital was responsible for tbo payment of tho machine contractors. His Honor— You thought the charge was to come " out of the gronnd ? " Witness— Precisely, your Honor. His Ho«or— How came yon to know that Goss wonld take the shares. Witness— l had a conversation about tbe Company with Mr Hungerford, aud as'.ed him, as he was mo;*e abont than I was, to 6ee if be could find a purchaser fo.* the shares. Somclime after ho called at my office with Goss, aud said that the latter was willing to take the shares. I had no previous conve isatiou with Goss. His Honor— Was thore any understanding that yon were either directly or indirecily to return the purchase money to Goss or refund it io ihe person who negotiated the sale P Witness— Most cer'aluly not, either directly or indirectly. H : 8 Honor — Nothing was said at llie .j. :e to the effect tlta! if Goss wm* sued i-' vos* eet tog the shares ib't the amouut would be made up. VViluess — Nothing whatever. Hisj|Mouor— You, uudert.'ke to swear that. Witness— l distinctly Bwc:<r it. His Honor— Do you know that it was , said by anybody else. Witness— l do uot. Tbovo wns no u^ei'sla-iding that Goss was to refund themojey or that I was to reimburse anyone. His Honor— Were you aw.ire lhat the Company wss iv monetary difficulties. s Witness— l was aware (hat there was ai overdraft at lh'* National Eank, but I was not awaro of the real position of ihe Company. I hea.*d the.'c was an overdraft for £500 at the National Bank. This dosed (be examination. Mr Pitt said it wonld not be necessary for him to go into the law of the case, as it had Already been so clearly laid down by tho Court, and ho .submitted tbat tho transaction as* referred 10 in Costello's case, was not a colorable one. Mr Button said be was not prepared 10 go beyoad the evideuce tendered, but he was prepared to argue why the case did not come wilhiu the spirit of tbe ruliug just cited. There were certain suspicious circumstances iv the case. Goss had been in Huugerford's employ. Ho was provided by Iluugerford, and soon after ihe transaction he disappeared from tbo district. Mr Staite, who appeared in the interest of the National Bank, said that little remained for him to say. He could not help remaking, however, that the case contained several peculiar features. The Company was in debt at ihe time of the transfer, aud thiß ihe transferror- was aware of. Goss had bcci i t Hungerford'* emp'oy, and he would ask thr? Court was it tetisonable to suppose that a man earning a la! over's wages could reasonably uuder take such an amount of responsibility. It would certainly have bee * much more s.ttisfro ory if Huuge> ford had beon iv attendance. Probably he would be able to explain away so^»e of llese circumstances wlrou at the present time appeared, to lay the least, rather doublfal. His Honor — How is it that Mr Hungerford is not IvereP ,Mr Pitt— Both li v Hunge^Wd s_d Mr La-ham were snb t ce:aeJ, bat it was left fur themselves to decide which should coin*-*, as it was thought both were not required. His Honor— The onus of proof of bona Mes is upon the person trying io esoape the liability. There are certain suspicious circumstances in the case. Mr Staile— Gois is not within the definition of the ruling cited in Do Psss' case—" A person of solvent circu .nstancea and of fixed and kuowu abode." His Honor recited the facts as referred to in De Pass' case. De Pats, he said, ' <

3 as desirous of ge;.h**g^hifOf hia shares. He went lo his ele k, still Si'd.^I Lav© some shares which I wHi toget rid of, *■ ill you ake* tbem." \'l clerk said ••Very weU," .aiid tbeishsieswevie ac, cordiugly transferred to fim. The money prssed, and u'lrnately the Coinj any was wound up. De Pass, in transferring the sha -es, admitled his object, end it was beUUhattberewasho;Wtf£c&*intbe transaction. Ti© clerk at tbe timo asked no questions, and Do Pass ssid lo'lrtn "I hope you will make a lot of money out of tbem." Mr Staite said thai, no matter wbat ihe form might be, the Court would judge of (ho inleation by the result. He.c tbe trans'eree was (o aU .intents aud purposes a pauper. His Honor— Of course all iT_o circnrastaures must be considered. In Clinton's case tlie circumstances we^ sirou^enba-a in this. There tbe person was mtrodut.*ed to the transferor by a nmLu.-l friend. Here tho position is dlffe ent. There appears to have be->n no negotiations and no quesiions asked, but withal there aro some circumstances which require explauatiou. 'y ' Mr Staite— Mi* Lapham's intention was obvious, and the best thing was to have tho whole of tho parires before iho Court. . His Honor—Do you desir© that that should be dove P * * <■ Mr Staite— l should like to have an opportunity of examining My HunMrford. His Honor— Cau we have Goss hereP Mr Staite— Uufortuhatelf riot,T thiuk. It is said that he has left tie distiict, and, in fact, the creditors were left to tho presumption tbat there was "no such a person. Hia Honor— Vo.y well. Let the case stand adjourned until the next sitting of tbe Court. Iv the same matter, end J. Husgebfobd. This was nn application Vmilar to the. former. The t ansfer had been effecled to ibe same person,. upo*i the same date, snd for a Mn sum tot an equal dumber of shares* Hungerford was not in alien* dance. > > His Ho"o- said thei-e was not sufficient evidence before the Cotirt' to deal with the case, and it would thereifore staid adjourned until tbe re if slicing. Mr Button said that this concluded, the* liquidation list in the Bainy Creek Company. f< ■ ••■• * . •**• In. ihe Matter of the Sib, Juntfs Vcosi; Company md Louis Dayib*. a cot** tributary. Mr Staite apper-edtO aynly for are* her.rlDg in the above case. The grounds of the applied io*. we,„*e ...tViSjß&.tiie former hcrlog h'ober'fin-j in, his affidavit sworo lhat be never* bad any shaesin the £ir Juntos Voz"l Ooumny. l?c (iir Sta>te) wns row piwwred, upon tbe affidavit of Mr Joseph Steele, drape:*, a wist :«* spectable resident, to show that EobeS;son on frcquont orcasV.is iofonJiW;! *V Steelo that be hr.d sj.t**e**i i» tbo fS-iy Julius Vo.-el Compjny, and asked Steele to pu**c'a?e them. ? r r Bullon w-s q**l.'e sarp ißcd t > iiml .list at p:>p!'c"«lT<**n of <hii n.iure shot-Id have been based u**>oa B**ch Bler^r C"*a**''dß. At Ihe fonier hearing 3fr Dr.vie3'' counsel a'ctna'ly coire^ed t.:at Eobertson held the shares in trust fo" Davies nntil the latter could fiud anb'.her dummy. T'ohe-tson was used o*' the Occasion by Davies cs a mere conduit pipe to convey the shares from him (Daries) to Cooney — that lisd actually been admitted. The yery evidence which Mr Steele's affidavit gave had been already ad nitted in the case. He (Mr Button) did not want to throw discredit upon any of the evidence tendered throughout ibe case. "Trains, was an honorable man.*' In the judgment already given by the Court in the case bis Honor hti referred pa.'-' ticular'y to tne .existence of a trust between I 'av'es nwd Eobe'*tson, and lue : .affidavit of Steele me 'ely went to support the exislence o? that trust, a.ndtbe.o could he no doubt whatever that the opinion which his Honor took in regard (o the Whol a transaction was the only one consistent with the circumstances of tho case. His Honor was glad to findthat counsel approved of vhe judgment in question,, and he sbould have been glad to dis** charge Davies from the liability if he could consistently do so, but tbe facts were too stroogly against it. It seemed to bim wben tbe affidavits and evidencewere reed together, only ono opinion conld be come to, and that was that the transaction throughout was not a , bona Ude one, but. was intended as a means of effecting the transfer man underhand and ' improper manner. It v vb!s' , 'said that RabertsoVs' affidavit .was in conflict with the weight , of evidence, jbiit this the Court failed to see. Robertson may have taken a wrong view of his real positionin . the matter, and there could be no doubt that be did. There was nothing to show that Eoberisbn did uot get to know the shares he had taken, and what tben wes more reasonable tben to suppose then tbat he should try to make something out of them. ( In this respect tben -the eridence contained iv Steel* affidavit, wns not in any way incon** s-'stent with Robertson's assertion, The whole circumstances of this case point very clearly in one direction. Davies was the manager of tho Co-party.' He was desirous of freeing himself of his shares, and according to his own show* iug he at firat thought of transfeiriug them to the Company, but feeling that such a course might arouse tl& suspicion of the other shareholders, he looked about for a person to take them and found Eobertson. Eobertson after taking the shares found that he conld not of them, and he returned to Davies wkV befriehded him, and fouud a third pariy —Cooney, who agreed to take then. Then with these fads, and the truik having beeu admitted, the Court muit refuse the epplication, with costs, £2 2s. The Court then adjourned sine die.