DISTICT COURT, REEFTEON.

Inangahua Times, Volume V, Issue 24, 23 January 1878, Page 2

DISTI CT COURT, RE EFTEON.

'MosmY, 21sr Jauuaiy. (Beforo Hid Honor Judgo Woa!or.) In tho Mh'JoV of iho Kathy Chukk Qiupiu MiNOa CoMrANY (in llqnicla* tioo) and Lr^;s .Pavths. Mr Guinness moved for a rulo absoluto romoring tho iiquidntor from his office. Mr Held, who appeared for tlio liquidnlor to oppose tho appliculioo, said tho caso wo s adjournod on Saturday last to ftivo tho othor side an opportunity of Cling nn. answoring uflidavi-t. Ho said ho had pccolvod no notice of any nffldavit juvir.p; been, .ftlod in tlio.intorvnl. I In reply, to His Honor tho Clork oF tho Court staled that no affidavit had boon filed by Mv Guinness. His Honor ashed Mr Guinness for an explanation, ' Mr Gu : .noeflß snkl he had been informed by Mv Allfen ibnt lio (A Don) hud be<*n Bubf-ainacd to attend as a witnosa, and thorol'oi'o piofoirod to mako hitt sUtcmonfc omllj. His Honor— l think it would havo boon very .much' better if Mr Alloo had mndo nn alHdavit. Mr Guinness s.rid lio h"d no ],ovfov to compel Mr A 'lon to inu'io nn nfli davit. His Honor —Ar it ih upon Mr Allen's flfQdavit that tho app.la'a'Jon for tho rulo is founded I ronlly. cannot suo why Mr All on. should ohjoct to mako a fucthor affidavit in support, of his allegations. Mr Gdioncss submitted that 'b9 Mr Allen was present h was compotent for him (Mr Guinness) to call him. It wnß in tho powpr of tho Court to oompel Mr Allen (o mako tho veqiilrod ailitlavit . His Honor— Yes, bube«n I. consislenMy do ko' Ho baft already filed ono nirulavil; making certain charges agninsf, tlio liq.u;tlnl.or, Huroly if ho conHidors he in right in tho stop ho is 'taking it is his duty to malro tho iidditiom.il affidavit voluntarily. Mi* Guinness admitted tho foroo of his Honor's ronmrks. His Honor proceeded— Mr Alien has mndo certniu nllogationsngainst tho liqai* dntor, tlioso nMogutions aro total! v /Jouiod by Iho liquidator'* nflldnviL Now, hero ism direct conflict, and Mr Allen infuses to jnsnfy hiinsolf. . i.li' Guinness said ho had prepared iho rough draft of an affidavit, and presented < it to Mr Alton for signature, but tho kitIcf positively rofusod to sign it. Ho would rend tho draft. Mr Moid ohjoctod to tho reading of tho draft, as tho document had not boon filedMr Guinness submittod that Allen wa& not tho moving power in tho application 1 Ho "wns simply a witness in tho paso,;nnd' iiomny, have his reasons for rehifting to mftko a further affidavit. His Honor— Nominally ho is not tho moving povv.or in tho application^ bat praciticully ho is. Ho'rcally is the momig party. Mr Guinnoss would ask tho Court to pin co Mr Allen in tho box so that tlio matlor might bo thoroughly sifted. Eiihor ono party or tbo othor bad mado a doli" bo"afo mistake His Houor— Mr Guinnoss, this enso was adjourned on Saturday last until today at your request to onnblo you, as you alloged, tp filo an answering nfhViavit fronn Mr Allenl When ifc wns Stated on Saturday by tho dther sido that oral ovi» denco won'd bo called, you strongly.objected to allow tho onso to travel outsido tho a-ffidavil'd, as boing unfair thai; the evidence should bo taken both orally, and by affidavit, and now you nsk mo to mako nu order to do that which youyoursolf afc (ho first opposed, Mr Guinness admit tod tho Irulh.of his Honor's rotn'nvkS). but bo hnd bcon placed in a dilemma in cowse^uouco of Allen's rofwsul. His Honor— lf Mr Pavicfs wnro bo'rb and could nsNiirn mo thnt Allen wns, no); tho moving power I might bo nblo to mnko Homo order, but; in his absonco I cnnnol; do po. Ifc scorns to mo from A'lon'n refusal to mako tho pfTidavit thnt there is something behind all this, and tho Court >s not to b« bnmboojsliid. You asked f<>7 timo to rnablo you to obtain Allen's nflfldavit, and now ifc turns out that M*v AUcn refusos to comply. Mr Guinnoss said ho 1 Was not Allen's counsel. If is Honor—Possibly if Mr Davics I wore hero ho would bo nblo to explain tho cirotimsl uncos under which Mr Allen's first aiTtdavit wns sworn, but as tho mattor now sin ids ifc K»ems that Allen h afraid to mako a second one. Mr Guinnoss siiid Mr Allon wns particularly anxious to have tho caso clcnrcd up. His Honor— So is tho Court, but lam not going to soe tho Court placed in « fiiloo position. Mr llcid said tho othor sido could havo

I -'iisiiy foiosi'cn \v..»: hud no.v cu.no to p.T-3. i'U'l it now ut\o.M'.vJ. iw 1,0 I'.'vd n-1---wnys ihouofiii, tiiiat (ijo niij-jurn merit was a mcro vexitiom d«»l y, His ITo.ior did not; t'n,til: IW, M!r Guinness had nny mo.'l»'e, h's client hail fiimply faiKl to como forworj. Mr Keid 8.-nid thnt oft S:>lnvdny last Mr Ga-OMPas hffl slronjjly chj^clod to tho adiniision o? viva vomvvl&urce, but now that Mr Alba declined to commit lvmsolf to nn nflidftVil; Mr Guinness wns nnx'ous to brook Ilu'ough llio rnlo. It was oil rcy woll to say that Mr Allen wi's pre«< sent nnd could bo oxaonined on oath.) bat tho Court, would seo Iho purpose of Mr i Allen's refusal. Ho wus nfrnid to commit his statement to blrclc nnd white, as in tho box l;o would bnvo (>rca!er latitude to qualify Ins statement*, Tho colours of an ftfildavit orvuld not bo goi away from but n wifnosi in tlio box could uso graator freedom of oxpvossioo, nnd his statements woiiM not muko su.'h nn iaioossion. All i ■ I this clearly showed ( th<it Mr Allen was being pat forward m a shadow or ghoat bohind wiiicd Dava'9 fl.'{b s.Mr Gum>uoss M''l;M'r .Davids wns not in tho habit of /i.r;li!!npf loltlnd gl?n-j!f. JTo fMr Ou'nnoss) mored for nn onlcr to compel Mr .Allen to nril;o an nfHd.iv!t. '■ His Ifoiioi* said Ilink'under t.bo o'.-cumn st.mcen In; di-d not think be woukl bo jas* tified in m-^'tiog such nn order. P \v:ti~ : cally Mr Allen wis fl'O moving powoc in' Uio rtppllcation, nnd it ho (Mr Allen) • Cvt Rttco of hlaprouid tho"o was no doubt bo would, radio (ho nflWnvit at one o. If thoro wns roally n»y srouad of comp'nint ngninxt tho liqi'Mjiio I.',1 .', 11/o propur pracf.!co was to sot tl.tfa) cot spiiclficaHy upon affidavit, ftnd llion ii?k (bo Court to make ! P:o inquiry. If tint weo clono it could bo relied that tho veiy £allc3i inquity would bo mode, A long discussion ensued between counsel, end linnlly loth Mr Reid and Mr Guinress having . Mimmod up, jadgN ; mont; w.is'delivore.l ns follows :—- --II is Honor in Riving' judgment s.iid :■— This is an npplicafon «o loinuvo MvLcan I'vom tlio onieo of liquidator. TJio rule is Hint M'Loan should slio-.v cause why ho should not bo removed «•» ullegcd in Allen's nlßdnvit.' It sco.ns to mo (hat befovo tivo Court cou'd oi'Jcr his romoful from tho olllco t lu.ro must bo tho mo.st ninplo proof. No«v no such proof bus been furnished in ilm ji;<.->ent ins'anco. In tho first insuino, tlv'-'o is nothing d'solosod showing Duvios' intorost !n tlie iiiatler, ond secondly thoro isnoßlaiemenc that nt tho meciing of ercdilo/a in quoslion, n'f c rjcan' volo.l wi-h Graham and Allen's proxy. Hut I'm s. r:..'ii7.."its eon* tsiincd in Allen's alft.' -i vib o.i tlio a,)plication for Iho rido n'm wo'o of such a S(.'rioiiß chf.-Aoau 1 th;vt I considced I sivjii'd l».) w.'.iv.mti'd in wniving all such irr(?^i> I<l ,'!.!OH : <\ ordor to sift Iho complaint, t»-i l!,oiv"oro on llie, I'orroer oijoasion fif.infod i!;-j ru'e. Jf 1 vvoni oui-sido tlio nflUj!V : ts 1 nlould 'find that 'Davies is n civt)i(.. ( % 10 tho amount of som.) £2 or £;), uwl \i.\i (»rah:><n ir.id Allen nvo prcroniixinl (teditors to iho nmount of £500, nnd I Would thoroforo bo compelled to arrive at tho conclusion that Duvies is only non/tcilly iho moving power in 1.1 io tippli^Uion, and that pivc* ticnlly Allen is ilio parly iubyi,vj[ in tho maLtor, Wiiat lliei:, is tlio nlhVbivit to mnko this rule absolute. Allen sla.'ls by s.i'ying that, tho 'cojmi'sallcn li«) bad wilh tiio liquidator tool' pluco- nft or (ho mooting of the 28tb Oetobar.lc is due, bo admits, tlint ho signed a proxy, bill alleges that it 'was given after Iho m,?etin;». This is absolutely domed by th? liquidator.. If wo look at Allen's proxy wo find that it is dated Ori iho day previous to tho mooting. Tho 'date is there disclosed upon tbo faeo of tho dooiunent, nnd wholhor wo accept M'Loan's slntomoat that the proxy wm given on tlio day before, or AllenN sitnteM moat that it wns given on tho day iiftor tho mooting nppcavs to mo to matter very little.' If Alien gave iho proxy before , the mooting it was no doubt intended tobo,used nt tho meeting, nnd if g'lten after tho meuMn'g Mien it wiu given to ratify tbo proceedings of Iho mctili»ff. Now, weighing tho question, of probabilities in sup* port of one or other of tlioso conflicting slatomonts wo find that Iho probabilities /i'O on the side of M'Lc:in. It seems to mo that when a proxy is giyon it must bo rulod by tho dnto upo-n it, for I cannot imagino that Allen would after tho mooting put bis hand .to. paper, to ondorso u sham ennctedat tho meeting previously, [l gooms then, to mo, that tho bnlanco of testimony, if I nm to balnnco Iho testimony nt all, is. clearly in favor of M'Loan. It has beon faitl tbit Davios had boon prejudiced in tho application by tho rc» liisnl of Allen to mnlco a fresh nfTilavit. I h'avo nlrortdy mid that I rcgnrd Davies ns a inoi'o.-rnnnhinc in thifi rnattor. ' Ho moves nt tho ins! moo of Alien, and if ho nllows lu'msolf to bo worlcod in that wny it mu&fc bo to his own detriment If Allci could mn'ro nn affidavit in tho fi"st instance, ho could suroly malco an« othor in eonfir.nulion of it. TJndor all tho oirfciimstniH-o I bavo no othor nltor native but to refuso tho rule, Mr Heid applied for full costs. Mr Guinness objected to costs. Ifc had been shown that tho charges mado against tho liquidator hud not boon altogether groundless. His Honor said ho regard od tho charges nfi quite groundlos*, and allowed costs In Iho same matte-, nnd in tho petition Wilt/am M'Liuv Liquidator. Mr Koid moved for an d'Jor settling

tho list of cot' iliuloi.'es in tho abvve Company, aad fivltig iho rufo of con'iix buttons. He stid tlu to'.id l!abililios of the ComiMUiy wo.-c ,C2!oa. Tho omount arailablo to be oV.led np wns 4s 7d per shnre t but the liquidator only asked for 2s pnr sharo. That-sn-n if pout upon Iho wholo of tho tmpnM siinrr* i:i tho Com." puny would bo sulllcioiil; to l'"quid.»(o the liftbililicg, but as it w/"» cev.^a'n that many persons nt prosint on iho list would muko default in tho pnyment of tl.o contribution, it was moro thnn probable that tho liquidator would havo to osk fora further contribution. His Honor— Very well, t'to cvihv can go, but it is roally Inrnvatablo to witness such a waste of money. Tho Court tbou ai'joi'. 'nod sine dio.