RESIDENT MAGISTRATE'S COURT LAWRENCE.

Tuapeka Times, Volume VII, Issue 367, 24 June 1874, Page 2

RESIDENT MAGISTRATE'S COURT LAWRENCE.

(Before E. H. Carew, Esq., 8.M.) Tuesday, Juhb 23. Wright v. Hujg'ms. — No afSdarit of ie vice was endorsed on the summons, the oE« who served the summons not being able to find a Justice of the Peace. Case adjourned for affidavit of service to Friday, 3rd Julj, Harrobin v. Kingsland. — Withdrawn. King v. Aitken. — Mr. M'Coy for plaintiff] Mr. Henderson for the defendant. Hj Worship gave judgment a3 follows :—: — The plaintiff sues defendant for £1S Im, claimed for calls on 50 shares in the Beaumoit and Tuapeka Water Race Co., ltegisterdl,aai the defendant ha 3 pleaied not indebted ; a&l further, that he puts plaintiff to proof of il that is material in support of the claim, Tho plaintiff lias put in a document whiik purports to be a certificate of registration oi the Company, and has proved that «n t, day that these proceedings were commence and to the day of hearing of this action, 1 was acting as Manager of the Company. J book has been produced and proved to be ft register of the shareholders of the Company in which defendant's name is entered as li holder of fifty shares. Another book Is been produced and proved to be the iiiinufc book of the Company, and the book in wlii all resolutions of the Directors ought to \> entered. Entries m the last-named book bin been pointed out us prima facie proof of I* calls sued for having been maJe. The ft .fondant was called as a witness for the pla tiff, and admitted holding 50 scrip in ti Company. No witnesses were called for Ik defence ; but the defendant relie3 up« answers elicited in. cross-examination of pla tiff's witnesses, up'ou "documents put inul questions of law. It has been contended fa the defendant — , 1. That the document marked A is net prbna facie proof of .the registration of tbf Company, as it does not show the dates i the-" Gazette " and newspapers in which ti memorial was published. 2. That the defendant has proved, by ft production of the memorial and pspe lodged with the Warden for registration i the Company, that the Company is not dajf registered : on the ground that a true ccjj of the memorial has not been advertised. 3. That the memorial of registration sho« that the shares in the Company are £5-shaiH while the defendant's scrip, upon which i< has been sued, represents £l-shares. 4. That the Manager, the present nomi* plaintiff, has not been properly appointed. 5. That the "Gazette" notice of the if pomtment of the Manager makes him app* to be the Manager on the. 21st Msy ; and tk minute-book shows him to have been if pointed on the 21st May, to commence' from the 22nd" May. 6. That the plaintiff has admitted that* business of the Company has not been carti on at their registered office, since the date * his appointment. 7. That the register is not in accordin* with the Act of 1872. 8. That the scrip issued to defendant !* not a notice printed upon them, showing * days when calls are due. 9: That the Company has no rules 8$ the limit of amount of calls. 10. That there has not been suffice evidence that a third, call was made. 11. That the fourth call cannot now be i» covered, as no proceedings to recover » were made within fourteen days from the ty it became payable. 12. That the defendant is not liable for* fifth call, as his shares became forfeited bef* the call was made, 13. That the "Otago Daily Tunes" and* Tvasbka. Times contain mitleading ad* tisements respecting the fifth call. I will row proceed to answer. theaeTtf* questions : — 1. The document shows that the memo^ for registration was lodged in ,the Wardt" 1 office on the 6th February* 1872, and * certificate was therefore issued under W* Mining Companies' Limited Liability Amondment Act, 1869, which amended vf Act of 1865. The certificate is strictly » [accordance with the amending Act, and 5 | sulß'denfc prima /acicproof. of th& registrar* of the company. ! 2;. There is some difference between tw ! words of the memorial ' and printed*'' vertisement io the " Gazette " and newspap 3 ; The memorial sets oufc that, the svao®' allotted in partly paiil-up shares is ni!< fi these wor Is are not inclu !•■ 1 in the adrerfi*" ment. lliKierthe Act of IS' ; 9, section s. ' tB ne.cessai*y co snow in the memorial, aul c° n | sequenlly in tue advertised copies, tljesnio^ allotted ia fully or-partlv paid-shares if » D . T| but there is no provision that where tw» has been no allotment of partly or fully p^' up shares that it shall be so Btated ; f* sequently the advertisements substantial conveyed the Bajne information a* the O*

' ttOlttl itl&, and the documents used for the defence, in my opinion, bear proof that the ««apaty has been duly registered., * : -i. There is certainly something unexplained respecting the difference between the nominal value of the shares as shown in the memorial, fig., £6 each, and the value named in the Scrip, £1, which it has been admitted by pltMtiff is the nominal value of the shares J#Psued upon-; but it is sufficient for the if he has given prima facie proof as aimed in section S3 of the Act, 1872, and the onus of proving that the calls are illegal then rests upon defendant. The difference . I hare referred to is in itself no such proof. 4. The plaintiff has proved that at, the time ' these proceedings were commenced he was bona Me acting as manager of the company, and has therefore complied with the conditions necessary under section 53 of the Act, „ 1872, to enable him to prosecute this suit in ■his own name as manager. 5. The answer given to the- fourth question if also a reply to this one ; and further I may . say that the "Gazette" notice, which purports to be signed by the directors, and sealed with the seal of the company, is bettor proof than the unsigned manuscript in the minute book, upon which defendant relie&i . 6. I cannot see how this question can affect this case, as it has not been shown that the defendant has been in any way prejudiced by the company's registered office not being attended. It may be that the manager has acted con* toary to law, but it has not been shown to . affect this claim. 7. The register is sufficient under section 5 of the Act* 1865, under which Act the company was registered ; but the Act does . : aot make- the register any proof of the matters . contained therein, as a register would be if kept in accordance with the Act of 1872. This does not, however, affect plaintiff's position, as he has shown by defendant's own evidence that he is holder of the shares upon which the calls are now 'sued for. 8. The printed notice on the face of scrip of the days when calls are due can be intended to apply only to companies registered under the Act of 1872. There is no evidence of when the defendant's scrip was issued ; but the company was registered nearly 20 months before the Act of 1872 came into operation, and it is presumable that the scrip were issued and out of the company's control before the passing of the Act. 9~ There is some evidence that the company has no rules ; but I read the provisions to section 13 of the Act of 1872 as conveying a different meaning to that which defendant . argues to be the correct one. I take it not to say that a company must have rules fixing the maximum amount for which calls can be made, but that when there are such rules the calls must not exceed any such maximum. 10. It was attempted to prove the making of the third call first by an entry in the minute book. I have already ruled in a former case, and am still of the same opinion, that the entry is not a declaration of a call, but an instruction to the company's manager, and therefore not prima facie proof of making a call. I admitted, in the absence of objection, certain parol evidence ;of the proceedings at ' a meeting of directors, when it is alleged it was resolved to make a third call, but with an undestanding that this evidence would be struck out from my notes should I on further consideration not think it admissible.- This evidence I cousider not admissible ; and if it was, would uot be soiEcieut to prove the making of the call. 11. The fourth call has been proved. It was made on the 29th January, 1874, to be payable on the second Wednesday (ilth) in February, 1874 ; but the questiou arises as to whether it can now be recovered. The first part of section 52 of the Act of 1872 provides that if proceedings for the purpose be commenced within fourteen days from the day when a call .becomes due it is recoverable, with interest and costs, by the manager. OEES appears to limit the time within which an action for a call can be brought to 14 days ; but the latter part of the same sention proTides that paymont of any number of calls due by a shareholder may bo enforced in one and the same proceeding. ISow, as by sections 51 and 52 it is not possible for two separate calls to be made due within 14 days of each other, it seems impossible to reconcile the interpretation I place on the first part of section with what, if read by itself, would appear to be the clear meaning of the latter part of the same section. As a statute should, be so construed. as to give, if possible, sense and meaning to every part of it, it is proper to look to other sections ofjjthe Act which may throw any flight upon the intention of the Legislature. Section 64 provides for forfeiture of a share at the expiration of 21 days after the day upon 1 which a call shall be due, if it then remains unpaid, provided no proceedings for the recovery of the call shall have been commenced within 14 days. This appears intended to provide that either legal, proceedings shall be commenced within 14 days ; or that if that course is not adopted, or the call is not paid within 21 days, that the share shall no longer be the property of the defaulter, bat revert to the Company. Taking Sections from 50 to 57 together, it appears to me to have been theintentionof theLegiblature that each separate call should be made and cleared off by payment, legal proceedings, or forfeiture of defaulter's shares, before any further call should be payable ; and that this policy might be strictly carried out, no option has been left to those who carry on tlm business of a Company, and that they must either sue for calls within the limited time, or not at all. If they do not sue, and the calls remain unpaid, the law itself, without being set in motion by them, and without any act whatever on their part, forfeits the defaulter's shares. It is fair to look at the evils that existed under the Acts which were repealed by the Act of 1872 to judge of the probable policy of the Legisla- - tare in framing this latest Act. The contention for the defendant is that calls can be sued for at any time, and that there is no forfeiture without it is the intention of the directors .that a forfeiture should work. This contention would, I have no doubt, have been held good under the repealed Acts ; but presuming that to be the law at present, what would be the effect? In looking down the register of shareholders, and excluding for '" the purpose the original holders of the company's property, who came into the company with shares fully paid up, I find there are 39 shareholders* Of these, 6 "bare not paid a single call ; 15 have not paid a second ; 23 have uot paid a third ; 32 have not paid a , fourth ; and ' 83 have not paid a' fifth call ; "' leaving only 6 (150 shares) out of 39 (1070 shares) who hare paid all calk. There is no reason to believe that this company's position is worse than many others were before the ' pawing of the Act of 1872, and it cannot, I : think, be contended that it is a wise policy I i for the law to allow such a condition of things \ to exist. It is certainly most unfair as bep tween the shareholders themselves that the ■ few should bear the brunt of making payI 'faents, and that the many who avoid doing | : #6 should have an equal chance of any bene- |" fits to be derived by the. venture. What is : the position as regards the outside public , creditor*, tus., with a company ? It has been stated that this company is a subsidised cpm- ' pwy ("O called), and that its property is ' mortgaged to the Crown for a loan used in ' *onrtrueting the works. The regittw shows .thtf 3070 share* have been issued, and under Kproper sUte of things there would be a Ifpoi guarantee to persons who con- > tractod with the company. But the real I fact* as shown by the books are that calls are being paid by six shareholders, and upon £'180 shares only. I presume tliat the scope of f|he Mining Companies Act is to encourage |Ac investment of capital in mining enterand to afford security to investors and Nne outside public who have transactions with r«M»pamies, If this is so, the provision re-

•pecting forfeiture is not made solely for the benefit of. the company. The plaintiffs have no power to waive a forfeiture of defendant's shares for non-payment of the fourth call. With regard to the advertisements referred to, there has been no proof other than putting in<the newspapers, and although I agree that they are apt to mislead, they cannot affect the case without they are shown to be the act* of the plaintiff. No question has been raised by defendant as to whether it was necessary for plaintiff to prove the advertisement of calls, and I have nothing therefore to answer on that point. My decision therefore will be that the making of the third call hajsnot been proved ; that the fourth call cannot be recovered by these proceedings, as the call has been payable for longer than fourteen days ; that the defendant is not liable for the fifth call, as his shares became forfeited by operation of section 54 of the Act, for non-payment of the fourth call.

Mr. M'Coy asked for and received leave to appeal — security for £25 being required. The remaining cases in which King, the manager of the Beaumont and Tuapeka Water Race Company (Registered), appeared were adjourned.