has bee advance
ary 28, 1895.j
CHINA OVERLAND TRADE REPORT.
1967
and other property as security for the payment to arrest any man, aud probably persons in the of the sum due to Howqua, and even if afterwards fortifications are people to see anyone sketching they did sell or divert any of the property so outside. given as a security, that would be a fraud against that the Bill is practically the old Ordinance With these observations, promising certain of the trusts and contrary to the in-with one or two new clauses added to it, I would terest of the settlement, but it would not be submit it to be read a first time, and possibly it proof that from the first the transaction was might be passed to-day as there appears to be no not meant as a bona fide guarantee of security of her business to be brought before the Council. Action dismissed. As to costs I am of opinion The ACTING COLONIAL SECRETARY seconded. that the Banks were not warranted in going on Bill read a first time. after the de bene esse examination of Forbes unless they could disprove his evidence as to the objections I would propose that the Bill be read firm's indebtedness to Howqua, Costs will therefore be against the plaintiffs,
HONGKONG LEGISLATIVE COUNCIL.
A meeting of the Legislative Council was held on Tuesday, 26th February. Present
HIS EXCELLENCY the Governor, Sir WILLIAM ROBINSON, K.C M.G.
Hon. J. H. STEWART LOCKHART, Actior- Colonial secretary,
Hon. W. M. GOODMAN. Attorney-General. Hon. N. G. MITCHELL INNES, Colonini Treasurer.
Works
IIon. F. A. COOPER, Director of Publje Hon. R. M. RUMSEY, RIN, Harbour Master. Hon. A. McCONACHIE. Hon. C. P. CHATER. Hon. E. R. BELILIOS.
Hon. J. J. KESWICK. Hon. Ho KAT
Mr. J. G T. BUCKLE, Acting Clerk of Councils.
MINUTES.
The Acting Clerk read the minutes of the pre- vious meeting.
REPORTS.
The ATT RNEY-(ENERAL-If there are no
a second time.
The ACTING COLONIAL second that.
2
SECRETARY-
Bill read a second-d time and then consider, d in Committen,
· Counel having Pesmed. the ATTORNEY- GENERAL moved the saspe sion of the Standing Orders and that the Bill be road a third time and passed.
The ACTING COLONIAL SECRETAY geconded. Bill read a third time
The Council adjourned sine die.
MESSRS, BUTTERFILD & SWIRE AND THE PUBLIC WORKS DEPARTMENT.
1
The following letter has been addressed by Messrs. Butterfield & swire to the Govern- ment;
Hongkong, 18th February, 1895. Sir, Referring to our letter of the Sth inst. in which we called the attention of H E. the Governor to what we considered an abuse of power, or a lamentable want of discretion on the part of the Director of Public Works in adminis. The ACTING COLONIAL SECRETARY-I have fering the provisions of the Building Ordinance, the honour to lay upon the table the following we desire to add to our complaint and ask if reports:-The annual report for 1894 on Vic there was any justification for the Director of toris Gaol; the report of the Headmaster of Public Works in summoning two of our most im. Queen's College for 1894; a report by Messrs.portant and valuable servants, heads of depar Coode, Son, and Matthews on the Gap Rockments, to attend at the Police Curt on the 11th Lighthouse; and a report on the Widows' and instant when the Stipudiary Magistate, Com Orphans Fund for 1894.
Februarnent was bona fide if it was intended payment, and the security was bona it was intended to be a security." The HONG of the statute is that the debtor
not retain a bensfit for himself during the cases which have been cited before this de in others which I have looked up I have tions found one in which there has not been strong the prace that the settlor was largely indebted. Quot even if he had been, the fact of a bona fide $65.nitor being defeated is not sufficient to set de▪ deed founded on valuable consideration Holmes v. Penney and Golden v. Gillam, 20 :.D. p. 339.) · The burden of proof of debts suffi. inient to avoid a settlement for valuable consi. vderation rests in general upon the person who |
kato impeach it. May, in his work on "Fraud,” says, p. 521 :-" There appears to be no onso in which a subsequent creditor has suc seeded in impeaching a settlement for valuable Asideration on the ground of not being made bona file where there were no debts in existence at the date of settlement.” And in support he eites the case of Smith v, Tatton, 6 LJ. S 2. 43. the principle being that where the creditors have an opportunity of proving and do not prove the existence of debts at the time the settlement was made the action must be dismissed (Manden v Mandeo, 4 J.L. Eq 438, and see Richardson v. Smallwood, 3 Jac. 552. May (p. 520) says the point has never been expressly decided wether if all the debts due at the time of the settlement were paid before the writ was issued a subse quent oreditor could maintain an action to set aside the settlement simply on the ground that the settlement was voluntary. As the question whether a settlement is valid or void against ereditors is determined upon consideration of all the circumstances at the time it is executed, so it is plain, that if the settlor was not then Indebted no sub equent creditor can impach it merely on the ground of the settlor's baerment indebtedness to him. But still it may be fraudulent if instead of being a bona fide transaction it were a mere cloak for protesting the property of Russell & Co. from their creditors and for retaining a benefit for themselves. Now, what are the facts ? I
SKETCHING OF DEFENCES. vá found that Russell & Co. were largely The ATTORNEY-GENERAL - 1 bave the honour To J. M. Forbes, who was trustee for to move the first reading of a Bill entitled for monies which he had advanced to Ordinance to prevent the Sketching of De- "An out of the trust funds. Howell Forbes fences." The law at present in fore in this that they wished to secure John Murray colony is Ordinance 2 of 18-8, and that law seems Forbes, who had advanced money without any to be not entirely satisfactory. A man who arity. It is not shown that they were indebted sketches our fortifications is probably doing so the time, or intending to undertake any fresh for the purpose of selling his sketches either to liability or adventures. It is true that there our enemies or those who may some day be our are certain suspicious circumstances about the enemies, and it may well be that although he fransaction, vis, the absence of a schedule of the is not caught on the first occasion or the first property to be given in security, the fact that two occasions, perhaps on the third occasion he this charge was not registered at the time (the might be caught and brought before a Magis deeds being left in the possession of W. H. trate. But there is no power given under the Forbes, who says that he held them for Murray present Ordinance to search his effects to see if Forbes) of the sale of certain of the pro- he has any other sketches of fortifications, and if perty, but these are not sufficient in the so to impound them. The Officer Commanding absence of all evidence as to indebtedness the Royal Engineers pointed out this defect and to justify me in finding that there were asked to bave the law amended, and it was sub- frandulent nots and that the transaction was not mitted to His Excellency the General, who re- an honest one done to protect J. M. Forbes, but commended that the Ordinane- should be amended only to protect the property of Russell & Co., in that particular and that this clause should be who could produce the letter of hypothecation or added. It occurred to me that this would be a not as it suited their purpose. Is it not more in good opportunity, instead of passing an amend- Bocordance with the foots to say that this trans-ing Ordinance, by which arrangement we would action-incomplete since no particulars were have had two small Ordinances in force on this given and suspicious since it was not registered one subject, to repeal the previous Ordin-visers of the Government before proceeding, and
en it could have been so made public-was real anes and re-enact it with these altera- ly intended to be what it purports to be, viz., the tions. Our old Ordinance was framed upon iving of security to John Murray Forbes for the lines of an old Defence Sketching Ordin
money which he had advanced to Russell & anos, and to see if any amendments could be Uo. rather than to say it was a fraudulent | made I read the Ordinance in for ein the Straits transaction, and if the giving of security Settlement. It is a more stringent measure
the object, and it seems to me
it than ours, both in regard to the periods of I think it should be upheld, and that imprisonment and the penalties that might charges of irregularity made agaiust it do be inflicted, and I notice that the Straits ot show that fraud which would justify me Settlements' Ordinance has one additional aying that this was not a bona fide clause, which I believe has been banded totion. From all these Cases I take round to members. It appears as clause rinciple to be this-that when the settle- 7. I thought it might be usefully included in SOUL IL TOP & valuable consideration it will our Ordinance: "Any commissioned or non-com- upheld, even if it does defeat or delay other missioned officer in Her Majesty's Naval or reditors, if it is bona fide, that is, given for the Military forces and any Police Officer may with urpose solely of scouring to the creditor payment or without any warrant or other process ap- | his claim. It will be set aside, although it is prehend or cause to be apprehended any person valuable consideration, if it can be inferred offending against this Ordinance or suspected om all the o circumstances of the case that it is of so offending, and may bring him or cause ta bona fide transaction but only a cloak to him to be brought before a Magistrate for otnot the property for the debtor. and if he the purpose of being dealt with according ing an interest or benefit in it. Here Rus to law." Under our law there is no power for Al & Co. purported to give these leaseholds any commissioned or non-commissioned officer
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mander Hastings, R N., reviewed his decision aud order in the summouses against our Mr. Mackintosh. The case was not reopened on the application of either party. The Magistrate we presume, under directions, and in conse was only about to amend his own judgment, quence of our complaint. No evidence could well be goue into, as there was no dispute about away for the greater part of a day from their work the facts; yet our servants are needlessly takeu and kept idling about the Police Court. If the Director of Public Works was ignorant of the nature and character of the proceeding before the Court, why is he allowed, to act without taking advice from the rown Solicitor or At- torney-General P It it colony to take legal proceedings against the ser- were possible in this
vants of the Crown for the recovery of damages for the losses caused by their ignorance or care- lessness we should certainly sue Mr. Cooper for the wilful loss of time caused our Mr. Waddell and Mr. Blake, and for the inconveience and loss to our business. possible, we can only complain to the Governor, As no such proceedings are and suggest that when it is desirable to prosecute for the wholly unintentional breach of a very purposeless Ordinance, the Director of Public Works may be ordered to consult the legal ad- the Acting Magistrate be instructed in the law he is supp sed to administer. We have the honour to be, sir, your most obedient servants,
BUTTERFIELD & SWIRE. Hon. J. H. Stewart Lockhart,
Acting Colonial Secretary.
In the Peking and Tientsin Times of the 2nd February we find "A long tale of a little check," from which we learn that the paper named is printed at an office owned by a joint stock com
any called "The Tientsin Press," that General von Hanneken disapproves of the paper. and that having obtained some shares in the Company and secured the support of Mr. Delring, who is one of the directors, he proceeded to formally re- quest that an extraordinary meeting of the share holders should be called. The meeting was duly held and the General and Mr. Detring appear, according to the account given by our contem- porary, to have conducted themselves in an ex- traordinary manner. The design to secure con- trol over the paper or to shut it up failed., 5