RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Tuapeka Times, Volume VII, Issue 334, 28 February 1874, Page 2

RESIDENT MAGISTRATE'S COURT, LAWRENCE.

(Before E. H, Carew, Esq., E.M., Alex> Stewart, and E. Herbert, Esqs., J.P.s.) Tuesday, 24th Febbtjaky.

Police v. Cavenagh. — No-appearance. Thd summons had not been served, as the defendant could not be found.

Police v. Davison. — Jacob Davison was charged by Constable Hiacoek with permitting ahorse his property to wander at large ia Lawrence. He pleaded guilty, and waa fined 10s. and costs of Court, ss. 6d.

Dr. Halley and Thomas Tyler each pleaded guilty to a similar charge, and were fined the same atnonnt.

At 2 o'clock the following cases were proceeded with, Mr. Herbert having left the Bench : —

Beaumont and Tuapeka Water Race Co., Registered v. Richard Williams. — The Court having considered fehe preliminary objection that they had no jurisdiction, decided that they hadv The defendant then pleaded a general denial of indebtedness.

Mr. M'Coy appeared for th<e plaintiff j Mr. Mouat for the defendant.

Horace Lyne Squires deposed that he was manager of the Company at the commencement of %he proceedings, and put in the Company's miners' right and certificates. Produced the minute book of the Company and register of shareholders* Pointed out in the minutes entries referring to the making of the calls sued for. (The entries made before Mr. Squires Tras appointed manager^ that is those authorising the 2nd and 3rd calls, were objected to, as .not purporting to be resolutions authorising the calls). Could not give any further information as to whether those calk were duly made. Could only speak as to the last caU, which was made during his term of office. Richard William's name appears on the register as - owner of 20 shares. He had not paid the 2nd, 3rd, or 4th call. Had paid the first* He had attended meetings since the calls were made as a shareholder, and had moved one resolution.

Cross-examined. — He might have asked the defendant to attend and move the resolution. Believed the Company had adopted the rules of another company. Could not say whether they had been properly adopted. Recognised certain persons as directors, but could not say whether they had been properly appointed, It was before his time. The capital was not so great as represented in the prospecto*.

Could not say whether the country commanded by the m» was auriferous, as represented. In his opinion it was not. Could not Bay whether the terms of the prospectus were properly used dr not. Would not have used the same terms himself. Re-examined.— lt is my duty to inform the shareholders when a meeting is to be held. ThM wa» plaintiffs case. For the defence, Jticnw'd Williams deposed that he attended two meetings of shareholders voluntarily. iJtte last was an adjournment of the first. Wm i asked by Mr. Squires to attend. Said 1 have no business there, as I am not a shareholder." He said "Many thought so, and the position of the Company was to J be laid before the shareholders." Moved an adjournment. Attended again, but was late. Was asked to attend. Did not know until after he attended the first meeting that 2000 shares had not been subscribed for. Had the prospectus truly stated the number of shares subscribed for, did not think he would have taken shares. Cross-examined.— Held proxies at the meeting he attended, but did not use them. Mr. Mouat addressed the Bench for the defence. He briefly adverted to the arguments •ntered into by him on the first day of hearing at greater length in bar of the claim. He severely criticised the former management of |» the Company, and pointed out that the 2nd f ~ and 3rd calls sued for at any rate, if not the 4th, had not been duly made. He urged that the statute limited the time of sueing to fourteen days, to prevent jobbery; and further, that a forfeiture arose under the Act if a call was more than twentyOne days overdue, and it followed that no liability could attach to a shareholder in respect to his shares after they had been so forfeited. If, however, the Bench were of Opinion that this action would lie, he contended that there was a good defence irrespective of the Act. The defendant had been •entirely misled by the prospectus, and the false statement therein as to the financial . position of the company was fatal. He quoted Pitehford v. Davies, and other English authorities on this point:- - Mr. M'Coy, in reply, submitted that the limitation as to fourteen days could not be construed, as his learned friend urged. The Act permitted the recovery of several calls in one proceeding, and by it calls could only become due pne a month. He recapitulated briefly other considerations, before urged at greater length in support of this view. As to the forfeiture, it appeared to be for the protection~ of the company," and need not be enforced. It was not enforced by the com■r pany in this ease, and the defendant had con- ' tinued to maintain the character of a share- ' holder by attending meetings and moving a resolution. The prospectus not being in -accordance with fact -was not fatal. The allegations in it as to the prospects of the company could not be supposed to be other than fen expression of opinion, which might or might not be realised. Were it otherwise, no shareholders would be liable in an unsuccessful company, as none would be floated with a prospectus setting forth that the would be unsuccessful. The shareholders were coadventurers, and took their chance of profit or loss. An intending shareholder was not limited to the prospectus for information, but could inspect the books and documents of the company on payment of one shilling. The maxim, " Caveat emtor" applied. As to the decisions quoted by his learned friend, they were of a date long anterior to the Act under which this action was brought. Had a similar Act been then in force in England, po?aibly those decisions would not have been given. The Court reserved judgment. Bawford v. M'Pherson. — Claim of £27 on an IOU. Mr. Copland for plaintiff; Mr. M'Coy for defendant. Mr. M'Coy asked for "•adjournment for a fortnight, in consequence of the unavoidable absence of the defendant. Mr. Copland objected unless costs were paid ; he had also 6ubp<Bned the defendant. Adjournment refused, except on payment of costs. ' Mr. M'Coy then elected to go on, and pleaded not indebted. Mr. M'Coy having declined to admit the signature of defendant, •and the plaintiff being also absent, Mr. Copland asked for an adjournment. Mr. M'Coy objected, unless' costs were paid. Adjourn"tnent granted without costs, except the Court fee. Michael v. Hogg.— Claim of £14 13s. 9d., being half cost of boundary fence erected by the plaintiff in pursuance of the Fencing Ordinance, 1872. Mr. Mouat for plaintiff; -Mr. M'Coy for defendant. Mr. M'Coy stated that the defendant had no interest in the land in reßpect of which he was sued as occupier, and masked that plaintiff be nonsuited. It appeared that an error had been made by plaintiff- in describing the land. The Court ■allowed an amendment. John Michael, the plaintiff, deposed that be erected the fence, having previously given the proper notice. He had asked for payment, but had not been paid. The fence was -a sufficient fence. John Hogg owned the land on the other side. Could not Bay how long ago it was that he sent in his bill ; it might be a month. Cross-examined — That is my handwriting and signature (to an agreement produced), That agreement was obtained by false pretences,, and never acted on. That is the bill I sent to Hogg (dated 14th February)! Hugh M'Cann, fencer, deposed that he P*erected the fence. It was as good as the general run of fences about. My t M'Coy applied that the plaintiff be nonsuited, as the time between the demand »nd the bringing of the case was shorter than that prescribed by the statute. Mr. Mouat was heard in reply, and eventually the plaintiff was nonsuited, with costs •and expenses of witnesses, £1 45., and professional coßts, 2.15, Corry v. Leslie. — Claim for £30 damages for breach of «n agreement to erect half a boundary f enoe. Mr. Copland for plaintiff ; Mr. M'Coy and Mr. Mouat for defendant. This was the same case that had been before the Court the last week, but was now brought in a different form. The plaintiff gave evidence in substance the same as on the former 'occasion . There were seventeen chains <sf land left unfenced. The defence was a technical , 'one, the point most relied on being that the rsment should have been in writing, under 4th section of the Statute of Frauds. All the points raised were overruled. The •evidence was very conflicting, but as the balance w*9 in favor of the plaintiff, his Wor--ship gave judgment for the plaintiff, assessing the damages at half the value of the seventeen •chains of fencing unfinished at 30s, a chain, £12 155. ; professional costs, 215. ; costs and (expenses, £1 Ms. "• Fwday, $7nd February. ((Before E. H. Carew, Esq., R.M., and Alex. Stewart, Esq., J.P. Mr- Carew read the judgment of the Court in tbe- ease of Squires, as manager of the Beaumont and Toftpeka Water Race Co. •(Registered) i), W<iHiams. ■6oth v *des were represented by their •counsel. His Worship said — This is an action for calls upon shares in the Company. Several question* have been raised for the defence, and it wiU bemest convenient to settle first whether sufficient proof ha« been given that the calls Trere'duly made. ,In support of the first call mentioned in the till of particulars, the minute book of tne Company has been produced, and an entry thereiu pointed out contejning a resolution purporting to have been madeat a meeting of directors held on the •29tU July, 1873, ,in the following words : "*• That the manager be instructed to advertise a second call on the shareholders." This we hold to be -merely an instruction to the manager; and -not a resolution declaring a . esllTW even if it vere possible so to con-;rtn»e%-a»it doee not" fix the daj upon which^

it would be payable, it is inoperative. It is also silent as to the amount of aalL Inproof of the next item, there is a similar resolution at a meeting held on the 25th September, 1873, in substance the same as that of the 29th July, but with the additional words : " Payable on the Bth October." This is not sufficient evidence to satisfy the requirements of section 53, of the Mining Company's Act, 1872, and does not prove the call has been duly made. The resolution concerning the next call sued for reads thus : " That a fourth call of 2s. 6d. a share is hereby made payable on the second Wednesday in February, and the manager be instructed to advertise same." Under the section just now referred to this, is primd fade evidence that such call was duly made, and it remains to be seen whether there is any'good defence to this claim. For the defence it has been urged that the first call sued for was bad, that the second call not having been sued for within fourteen days, and not having been paid within twenty-one days of when due, that the defendant's shares then became forfeited by operation of section 54 of the Act ; but as we hold that there is no proof of those caps having been made, there could be no forfeiture for non-payment, It has also been attempted to show that the prospectus of the company was a gross misrepresentation of facts ; that the plaintiffs commenced operations before^the proposed capital had been subscribed for : and that some of the present directors are not properly elected. The company was registered in February, 1872 ; the defendant paid the first calls upon his shares ; and he admits Having been present at an extraordinary meeting of the shareholders in December last, and that he took part in the business. It has also been proved that he was present at another meeting in January last, and the balance of evidence shows that he then also took an active part in the business. Taking his evidence, together with the fact that by law the books of the company were open for his inspection, -we consider that in any event the defendant waived any right he might possibly otherwise have had of repudiating his liability to the company. He could not raise a wrong he himself had taken part in, to defeat this claim. The point respecting the election of directors to fill the place of others resigned, which affects the last call, has been raised, in our opinion under a misrepresentation of the law, as there is nothing in the Act which requires such election to be by a majority of the shareholders at an extraordinary meeting, and it has not been shown that the company has any rule requiring that course to be followed. Judgment, £2 10s ; costs of Court, 9s. Mr. Mouat asked for and received permission to appeal. Bally v. Sinclair. — Claim of £15 55., onehalf the winnings of Young Leamington in the Maiden Plate race, run at Lawrence on the 19th inst., and money lent. Mr. M'Coy for the plaintiff; Mr. Gooday for the defendant. «= A set off of £16 os. 3d. was put in for expenses and cash lent. James Bailey deposed — T am a miner residing at Tuapeka Mouth. I bought half the horse from the defendant on the 16th February, and it was agreed we should go halves in the expenses of entering the horse at the Lawrence races, and divide the money. (Agreement produced. Mr. Gooday took exception to it, on the ground that it was improperly stamped, but was over-ruled). I paid half the expenses. The horse won the Maiden Plate, and £28 10s. was received by j the defendant. He refused to pay me my half. J Garden Sinclair, called by Mr. Gooday, denied most of the allegations of the plaintiff, and gave evidence as to the set off, whidh in turn was denied by the plaintiff. Most of the matters charged in the set off occurred previously to the written agreement, and were struck out, The principal matter was whether the defendant had lent the plaintiff £10. This was affirmed on the one side and denied on the other. .His Worship, in delivering the judgment of the" Bench, commented on the conflict of the evidence. Judgment was given for the plaintiff for the amount claimed, less 30s. of the set off, making £13 155.; costs of Court, 165. : and professional costs, 21s. Harrop v. Kerr. — Claim of £8 10s. for goods sold and delivered. Mr. Mouat for the plaintiff. Jonas Harrop, chemist and druggist, Lawrence, deposed that the goods were supplied at reasonable charges to John Campbell Kerr, who had not paid for them. Judgment for the amount claimed ; costs of Court, 145. ; and professional costs, 21s. Hay v. Pyke. — Settled out of Court. M'Beath v. ScovXar and Another. Claim for £50 for damages sustained by the plaintiff through the defendants not delivering goods ordered by him. Mr. Mouat for the plaintiff ; Mr. M'Coy for defendant. Sinclair M'Beath, licensed victualler, Crookston, deposed — I gave an order to Mr. Thomson, the traveller of W. &J. Seoular. After some delay, on my enquiring why the goods were not sent, I received a letter (produced) declining to send them. I was damaged greatly by having to purchase at a much advanced "price in Lawrence, and also for being out of stock, or nearly so, for some time. Some further evidence was given. It was coritended for the plaintiff that there was a sufficiently good contract to maintain the action that the letter bearing the signature of Mr. Thomson forwarding the order, and that of the defendants refusing to send the goods was a sufficient signing of a memorandum to "satisfy the 17th section of the Statute of Frauds. For the defendants, it was contended that the alleged contract had never any existence, it was a mere request to supply goods not complied with ; and further, that had there been a contract it was void, there being no memorandum of the agreement signed by the party to be charged. The only writing produced, i signed by the defendants, shewed that they did not contract to sell the goods. ' Judgment reserved.