RESIDENT MAGISTRATE COURT.

Westport Times, Volume V, Issue 846, 5 August 1871, Page 2

RESIDENT MAGISTRATE COURT.

Friday, August 4. (Before J. Giles, Esq., R.M.)

Alexander Berne was charged, upon the information of John Tempsrley, with haviug assaulted him, on July 31st; and interfered with him in the discharge of his duty. The defendant pleaded not guilty. John Temperley: I am a constable of police, and act as bailiff in the Resident Magistrate and Warden's Courts, Weetport. I know Patrick Byrne and Peter Kerr. I recollect Byrne having an action for debt against Kerr and obtaining judgment. A distress war. rant was issued which was returned " no effects." A warrant of commitment was afterwards issued, which I produce. The warrant has been in my possession fov three weeks. I left "YVe3tpovt ou Monday, July 31st, shortly after midnight on" Sunday, and

proceeded to Addison's I'lat to arrest Peter Kerr on the warrant now before the Court. It was between two and thrue o'clock when I attempted to execute the warrant. I know the defendant. I saw him at Addison's when I attempted to execute the warrant. I went to Gallagher's house, at Addison's Flat; entered the bar, and saw Peter Kerr standing there. Berne, the defendant, Patrick Byrne, Taggart, Hart, and Gallagher, were also there. I told Peter Kerr that I had a warrant to arrest him. He made no particular answer. Alexander Berne asked me for my authority. I took out the warrant and was reading it to Peter Kerr. Berne, the defendant, kept stepping between Kerr and me, and telling Kerr to " hook-it; now was his time." I cautioned him not to interfere with me in the execution of my duty, as I was not speaking to him but to Peter Kerr. He continued to urge Kerr to go, and, at last, I was compelled to stop reading the warrant by Kerr making a rush past me. Kerr rushed out of the door. When I endeavoured to go after Kerr, the defendant, got between me and the door. I pushed past the defeudant and got out, overtaking Kerr about 100 yards from the door. Kerr fell and I fell over him. I still had the warrant in my possession. When we both got up Patrick Byrne had hold of Peter Kerr. I took hold of Kerr by the collar. Berne then said "give your self up to the law," and, in another breath (on my leaving go) said, " hook-it ; now is your time," —urging the man to go away again. I seized him again and he (Kerr) broke from my hold and rushed upon Patrick Byrne. They had a great scuffle and Byrne got Kerr down upon the ground. Byrne, ultimately, got clear of Kerr after his ccat had been torn in halves. I got up to Kerr again and attempted to arrest him, when I was attac«ed by Hart. On finding that I was likely to get mobbed I called out to Gallagher to come and assist me. Kerr broke away from me, and was clear away when Gallagher came to my assistance. I was struggling and wrestling with Hart, who was trying to assault me violently, kicking and biting me by turns. Both Mr Gallagher and the defendant Berne came to my assistance. It was only by their assistance that I got clear of Hart.

By the Bench : When I entered the bar, Peter Kerr had his back to the counter The door was at the end of the building at the right-hand side. Alexander Berne was on my righthand. When Kerr rushed out Berne was between me and the door. Kerr was standing three or four yards from the door with his back to the counter. Berne placed himself before me inside the bar. The defendant asked if it would be necessary to proceed with the case. The information charged him with assault, whereas not one word had been said by the bailiff as to any assault, and the evidence showed that in place of obstructing him, he (defendant) had rendered him every assistance.

His Worship stated that some objection might be taken to the information. If the defendant objected to its being amended it would be necessary that a fresh information should be at once laid. The defendant stated that he had no objection to any amendment that the prosecution might think necessary to their case, as he preferred the matter to be decided on its merits.

"With the consent of the defendant, the information was then amended. Cross-examined : You told Kerr to go quietly with me, after having asked me to produce a warrant. You were between me and the door, and continued to keep in that position. You jostled me as I endeavoured to get out of the door after Kerr. I caught Kerr, after ruuning perhaps sixty or seventy yardß, on the other side of the street, near a butcher's shop. You did not obstruct me long, as I pushed you on one side. Peter Kerr was half drunk, and fell when I caught him. I did not jostle >ou. His Worship: You must have jostled the defendant when you pushed him on one side. Cross-examination continued I heard you tell Kerr to give himself up. Yon rendered me all the assistance you could when Hart was struggling: with me. Hart is a very stiffbuilt, powerful man. I was doubled up by Gallagher's door. Hart would have done me all the injnry he could. You assisted me to my feet, and spoke to me about going to M'Enroe's, so as to be clear from Hart.

Patrick Byrne, storekeeper, Addison's, stated that he issued a distress warrant against Peter Kerr, and afterwards obtained a warrant of commitment. On the morning of the 31st July he went in company with the bailiff to G-allagher's store, where he saw Peter Kerr, and pointed him out to the bailiff. "When Kerr rushed out into the street, Teinperley was the first out of the door after him. "Witnessed followed the bailiff. He heard some one say, "hookit" before the bailiff had read the warrant, but he did not hear any one incite Kerr to run away after leaving the store. By the defendant: Tou did not shape at the bailiff or at any one else that night. Tou advanced a little further between Kerr and the bailiff. That might have been to hear the warrant read. I heard you tell Kerr that it was the bailiff's business to catch him if he could ; and I heard you also tell Kerr three or four times to " go with the bailiff, and have no i

more bother about it." Taggart, Hart,' and yourself are mates. I believe you both were knocked about by Hart from the actiou you took on behalf of the bailiff. The defendant, on being asked if he had anything to state, replied that he did all in his power to prevent the bailiff from being killed. Previous to that, when Kerr got free from the bailiff, he asked if he were jus titled in getting away, and defendant told him that was it the duty of the bailiff to arrest and keep him. The defendant contended that the information must be dismissed as bad, there being no evidence whatever as to any assault. His Worship overruled the objection ; stating that the information had been amended at an early stage of the proceedings. The following evidence was taken for the defence :

Timothy Gallagher: lam a storekeeper residing at Addison's. Early on Monday morning, July 31st, the bailiff and Patrick Byrne came into my house. At that time, Alexander Berne, Hart, Taggart, Peter Kerr, Gilbert Charleston, and myself, were in the house. The house forms a parrallelogram, 17ft x , 10ft. I was behind the counter. --"The other five were outside the counter. The space between the counter and some* brandy and wine casks is very small. The door is at one angle of the building. The defendant was standing next to Kerr. The door was on my left hand. Patrick Byrne remained standing two or three feet inside the door while the bailiff came forward. The bailiff walked over to Kerr. I came from behind the counter and walked towards Patrick Byrne. Some one said, but I cannot say whom, " you are caught at last." I saw the bailiff reading the warrant. I am not sure whether he read the whole of it. Berne, the de fendant, advanced, one step only, to the bailiffs shoulder, and appeared to be looking over the warrant which the bailiff was reading. Kerr made a spring out of the store. It was very sudden ; the bailiff, however, was after him immediately, and, I believe, made a grasp at Kerr as he wentout. I am not sure whether the bailiff or Patrick Berne was first out of the storo in pursuit, but they went out together and ran across the street. Alexander Berne and I ran after them. I said that I thought he was gone. We went fifty yards from my door. They were on one side of the butcher's shop, and we were on the other. As nearly as I could step it the distance is thirtyfive yards from my door to where the bailiff arrested Kerr. On leaving the house after Kerr, no one pushed the bailiff in any way whatever. He could not have been closer after Kerr, had there been only their two selves in the house. The defendant and I met Patrick Byrne, Kerr, and the bailiff. I think the defendant said " give bint up to me, it will bo all right." I was walking on his left quite close to him. Kerr was between the bailiff and the defendant, and Patrick Byrne was behind or on the other side. The defendant said, " Peter, have no more nonsense, but give yourself up to the law." We came to within two or three yards of my door when the defendant repeated to Peter to give himself up. As he said that he let Kerr go. The bailiff was close on the other side. Charleston, Taggart, and Hart were standing outside the door. The defendant was a trifle the worse of drink, but knew what he was doing, and appeared to take considerable interest in Kerr giving himself up to the bailiff. Defendant said, in an off-handed way, "now it is all right, I give him up." Thereupon Hart struck the defendant and knocked him down, saying that he had no business to interfere. I was close to them, and caught Hart by the shoulders, to drag him from the defendant. While I was doing that, a row ensued between Kerr and Byrne and the bailiff. I shut the door of the house and returned by the back, not being absent more than half a minute. When I returned Byrne and Kerr were gone. I then "found that the bailiff was down, and Berne, the defendant, was pylling Hart from off him. I assisted to get Hart away, and told the bailiff to clear.

By the Bench : I have an indistinct recollection of seme person saying " hook-it " as the bailiff entered, but I cannot say who said it. I was close by the defendant the whole time after that, and I distinctly state that I never heard him say " book-it." By Sergeant Kiely : I think " hook it," was said as Kerr rushed out. By the defendant: Tou were the only man except Byrne and the bailiff who appeared anxious that Kerr should be arrested. Tou did everything in your power to assist the bailiff. Hugh Taggart gave corroborative evidence, stating that he was surprised that Patrick Byrne allowed Kerr to pass, and that the bailiff was the first outside the door in pursuit of Kerr. His Worship stated that the only matter for him to decide was, whether or not there was a prima facie case to send to a jury. He did not consider the evidence called for the defence as totally rebutting that for the prosecution. It was quite possible that a man might apparently bo rendering assistance, while in a quiet way he was affording the arrested debtor every opportunity to escape. The defendant would be committed for trial at the next sitting of the District Court, and the former bail would be accepted.

Civil Case. excelsior quartz co. v. lavette. His Worship gave judgment in the above case, as follows: This is an action brought by the Excelsior Quartz Mining Company, registered under the Mining Companies Limited Liability Act, 1865, against the defendant who is a shareholder in the company, for unpaid calls. The calls in question have been made by the directors of the company, and notified to the shareholders by advertisement in the newspaper, signed by the manager. The grounds of defence relied'upon the following:— Ist, That no sufficient proof has been given that the defendant is a shareholder. 2nd, That no sufficient proof has been given that the directors were duly appointed. 3rd, That the directors have no legal authority to make calls. 4th, That the calls were made for an improper purpose.

Upon the Ist head it is sufficient to say that there appears to be ample proof that the defendant is a shareholder, in the production of his written request for the allotment of two shares, in the appearance of his name in the register, and in the payment by him of the firot call after the incorporation of the company. The second objection seems to have more weight, and I think it would be fatal if it were necessary in the present case to prove explieitly the proceedings by which the directors were appointed. In that case it might be necessary to produce the newspapers containing the notices of the extraordinary meeting required by s. 24 of the Act. In the present case we have only the verbal evidence of the manager that such notices were published, but, we have the minute book of the meeting containing a record of the appointment, and the fact that the defendant has complied with one call of the directors by paying the amount. It may, therefore, perhaps be considered that the appointment of the directors ottght to be regarded as having been duly made in the absence of any evidence to the contrary, particularly when their appointment is not an optional matter, but is rendered obligatory, by s. 27 of the statute. At the same time, this objection seems to me to have considerable weight, and if the decision of this case rested on this alone, I should have some hesitation in over-ruling it. The next head of the defence is the most important and the most difficult. It is said that the directors have no power to make calls, that such power could only be conferred on them by rules made under the 40th s. of the Act, and that no such rules having ever been made, the present calls are without lawful authority. There are three clauses in the Act which have to be considered in relation to this subject:—Sec. 6 provides that the amount of any unpaid calls shall be a debt from the shareholder to the company. This clause cau of course have no operation until the calls have been legally made. Sec. 27 provides that the manager shall, after the incorporation, convene an extraordinary meeting of shareholders for the election of directors, and that " such directors shall have the custody and use of the common seal, and -shall carry on and transact the business and affairs of the company." Sec. 40 provides that the majority of the shareholders may make rules for various purposes therein specified, including the making of calls.

Now, no rules of this kind have ever been made in the present case, and the question is whether,under these circumstances, the directors have any power to make calls. If they have such powers, it must either be inherent in them by virtue of their office, or it must be conferred upon them by implication and inference from the words of the 27th sec, " carry on and transact the business and affairs of the company." In order to throw light on this question, the defendant's counsel has referred to other ordinances relating to joint stock companies, and has followed out a closely reasoned argument designed to show that the power to make calls must always be expressly conferred, either by the words of the Act under which a company is formd, or by its own articles of association. The ordinances principally referred to are—The (N.Z.) Joint Stock Companies Act, I860; The Companies Clauses Consolidation Act (English), 8 and 9 Vic, c 16 ; and The Companies Act, 1862.

The N. Z. Joint Stock Companies Act, 18G0, sec. 10, provides that there may be articles of association prescribing regulations for the company, but in the absence of such regulations, then those contained in the schedule to the Act shall be the regulations of the company, and these regulations give power to the, company to make calls, and authorise the directors to exercise all the powers of the company. The provisions of the English Act of 1862 are very similar in principle, but the regulations printed in the schedule expressly authorise the directors to make calls.

The Companies Clauses Consolidation Act empowers the company to make calls, and sec. 90 authorises the directors to exercise the powers of the -company, and under this provision it has been decided that tho directors may make calls. The conclusion from these Acts seems to be that there is no inherent power in the directors of a company to make calls, and this is

confirmed by the words of a te*u writer which were quoted from Lind' ley on Partnership, where it is said :~- " The terms of the iustrumeht which 1 regulates the internal affairs.of each! company must be ascertained before the persons empowered to make calhji on its shareholders can be known i Generally speaking this power is na„' turally vested in the directors of a company." It appears, therefore, that where there are no articles of assqcja-! tion or regulations framed for ihe company, the directors would not have power, as such, to make calls. But the question still remains I whether the words of sec. 27 of the Mining Companies Act, 1865, do not I carry with them the power to make calls. It has been seeri that under the Companies Clauses Consolidation Act, by which the directors are authorised to exercise the powers of the company, it has been held that they may make calls, but the Minino Companies Act does not authorise the directors to exercise the powers of the company, but to " carry on and transact the business and affairs of the company." And even if these word* could be understood as equivalent to the others, there would yet be a link wanting, for the Act nowhere gives povyer to the company to make calls, as is the case in the English Act. If the words already referred to in sec. 27 do imply the power of makin* calls, it seems to follow that where Ha rules have been made, the directors would have power to regulate all the matters for which rules might be made, which are enumerated in the 40th section, and which equally with the making of calls must be considered to come under the designation of "the business and affairs of the company." Thus, the . directors would be empowered to fill up vacancies in their own body ; to d* termine the number of vote* which shareholders may give in respectof any specified number of shares ; to decide how shares are to be transferred, relinquished, and, perhaps, forfeited, and many other things which are; usually provided for in articles of as< sociation. It appears to me very doubtful whether the intention df the 27th section is to give all these powers to the directors in the absence of a code of rules. It may be difficult to say what are the precise powers which may be exercised by the direct ors under such circumstances, hut their custody of the common seal sems to show that they are to represent the company to outside parties; and that they may enter into eon. tracts. But I am inclined to think, although I do not feel perfect confi* dence in that conclusion, that the directors have no power to make calls, unless authorised by rules made in the manner provided" by sec. 40. In reference to the last point raised for the defence, I have only to saj that I see no reason to think that tie directors did not use their powers in the best possible way in making a contract by which their quartz was to be crushed at a cheap rate, and I do not see that this was a departure from the legitimate objects of a quartz-mining company. My judgment, therfore, must be fof the defendant on the 3rd ground, and a nonsuit will be entered accordingly; but, as the question raised is an important one to mining companies, and my own opinion ia not formed withoot some doubt, I shall readily give leara to appeal if the plaintiffs are desirous of doing so. In the matter of M'Farlaue v. King the defendant applied for a re-hearin», which was granted upon cause being shown, subject to the payment of costs already incurred. A number of civil cases were disposed of, possessing, however, nothing of public interest.