March 14, 1895.
SUPREME COURT..
12th March.
IN BANKRUPTCY.
BITOKE HIS HONOUR MR. W. M. GOODMAN, ACTING CHier Justice.
THE AFFAIRS OF MR. 8. I. DANBY.
Solomon Isaac Danby, sbarebroker, petitioned in bankruptcy to have a receiving order made by his Lordship.
Mr. G. J. Phillippo represented the petitioner, and Mr. H. L. Dennys appeared for creditors and opposed the application.
Mr. Phillippo said that the applicant held promissory notes for large sums.
His Lordship- you had had a couple of thousand dollars in hard cash I would have seen my way clearly. Is the promissory note likely to bɔ met in full ?
Mr. Phillippo-The promissory notes are at present in the possession of Mr. Wilkinson They were given by one Moosdeen to Mr. Danby.
Mr. Dennys-I understand that the man who gave the promissory notes bas left the colony,
Mr. Phillippo-He might be able to make some arrrangements to meet the liabilities He is doing his best now and all he wishes at present is the protection of the Court, so that he may endeavour to do his best. I tink under the circumstances, as he has made, a onga breast of all his liabilities, I should ask your yardship to grant the protection of the Court, not only fo Mr. Dauby's own benefit, but for the beneft of his creditors. Ife has had a good business here, and I have no doubt if he is allowed to confinne his business he will be able to meet these demands made upon him,
His Lordship—I don't at all feel inclined to make the order. The only doubt I have is as to whether I should appoint an interim receiver to Bee if the petitioner has any assets of value or not. Mr. Phillippo-That has been the practice hitherto.
His Lordship-I should do so in the case of a shop or business going on. What is the due date of that note you speak of?
Mr. Phillippo-One has already become due. Mr. Dennys-I understand the debtor left the colony in November.
Mr. Phillippo-I am informed the whole amount became due a month ago and has not been realised. Of course, all we wish is that you will grant an order, and Mr. Danby will do his best. He has a good business hore He bas made a clean breast of the state of affairs, and I think if he has a fair chance of being able to realise what is due to him and of con- tinning his business he will be able in some way to liquidate the claims against him.
CHINA OVERLAND TRADE REPORT.
Knowing as they now do the provisions of the amending Act of 1892, I think parties ought to come before the Court provided with proper evidence, an affidavit or something else, that | there are substantial assets.
Mr. Phillippo-Then you will grant protoction for a week, because if Mr. Danby is taken in execution it will be utterly impossible for him to try to assist himself.
His Lordship-What is the amount of the execntion!
Mr. Phillippo-8725.
His Lordship-And what is the amount of the promissory note?
Mr. Phillippo-$903.
His Lordship-Well, if the promissory note is a good one, why does not he realise it ? You are dangling it before the Court as a substantial asset. Why not realise it and pay the man ? cannot graut protection. I will adjourn the ease for a week.
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DISCHARGE OF A BANKRUPT.
Mr. Haha appeared in person to apply for his discharge.
:
my
His Lordship-Well, Mr. Hahn, I suppose you have nothing further to add to the facts in the files. The Receiver bas furnished me with a re- port. I have gone carefully through the file and into the proceedings in this case, and this decision. This is an application under section 27 of the Bankruptcy Ordinance of 1891 by Fer- dinand Albert Carl Hahu for his discharge. It appears from the report of the trustes that the bankrupt filed his petition on the 18th April, 1893. and was adjudicated bankrupt on 7th July following. The only dividend is one of 6.31 per cent. declared on 23rd May last, when unsecure! debts due from the bankrupt, proved and admitted, amounted to $7,876. The sams realized from the stock-in-trade, book debts, and a life policy amounted, after deduot- ing expenses, to $496.93. The rent of the shop and premises occupied by the bankrupt was four months and upwards in arrear at the date of his filing his petition, and the sum of $715 has been paid on this account to the landlords, who were fully secured. In my opinion the bankrupt should have filed his petition sooner, and should not have continued to trade after he knew, or at least had means of knowing, himself to be insolvent. That fact, as well as the smallness of the dividend paid, amounting to only 6 31 per cent, precludes me from granting an immediate discharge. The bankrupt afforded the trustee every facility and assistance he could in winding up his affairs, aud no objection is made to his application. It will not, there fore, be necessary for me in this case to resort to the powers conferred by section 27, sub-section (3), of refusing a discharge, nor to those enabling me to grant an order subject to conditions as to any earnings or income which may hereafter become due to the bankrupt On the whole the course which will, I think, meet the justice of the case is to grant an order of discharge, but to suspend its operation for a period of six months, and that is the order I accordingly make.
MESSRS. BUTTERFIELD & SWIRE AND THE PUBLIO WORKS DEPARTMENT.
passed between Messrs. Butterfield & Swire and The following further correspondenca bas the Government;
Colonial Secretary's Office,
His Lordship-I will adjourn the petition for week. Mr. Danby is the proper person to realise his note, if he can; if it is not a bad debt, let him get his assets and he will have something substantial in his pocket to come with before the Court. This is a petition filed by Mr. Solomon Isaac Danby, described in the petition as a share and general broker, asking for a re- ceiving order and au adjudication of bankruptcy. Section 8 of the Bankruptoy Ordinance of 1891 has been most usefully amended by seot 5 of Ordinance 6 of 1892 by the addition of this proviso: Provided that it shall be lawful in the discretion of the Court to refuse the Order (.e. the Receiving Order) unless satisfied that
4th March, 1895. there are or will be substantial assets for divi- Gentlemen,-I am directed by the Governor sion among the creditors." It is useless to ap- to acknowledge the receipt of your letter of the point a Reciver unless he has or will have some. 8th ultimo, and of your further letters of the 9th thing substantial to receive. There have been, and 18th ultimo, and in reply to inform you that, years past, many instances of people filing while regretting that several contraventions on petition simply to checkmate an importunate your part of the Building Ordinance in force in creditor. I do not know the circumstances in this oclony should have rendered action on the this oase, but before I make an order I shall re- part of the Director of Public Works necessary, quire some evidence to satisfy me that there will His Excellency cannot in any way blame that be substantial assets to divide among the credi-department for having issued summonses to en- tors. I will adjourn the application for a week force the penalties attached by law to such con. to enable such evidence to be produced, if it is traventions. possible is produce it in this case, If it is possi- to this promissory note can be realised and the prose da produced as a substantial asset.
•
pur.
Tas Government does not concur in the view expressed in your letter of the 18th February that the Building Ordinanca 18 poseles." Its object, with regard to the parti- cular matters complained of, is to prevent illegal and unauthorised encroachments upon the foreshore, which is the property of the His Lordship Is that another action No, Crown, and to require, in the public interest, think I shall make no order in the meantime. I notice to be given and plans to be submitted for
Mr. Pullippo-There is an execution already issued against Mr. Dauby... Will the Court grant protection for one week? He wants all the time he can get.
year solid in
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bers seeing
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approval before new buildings or works are com- menced.
3. You must be aware that it has been neosa- sary on previous occasions for the Public Works Department to call your attention to omissions - to furnish plans required by law, and althonga you state that the Building Ordinance wa "mainly passed to meet the delinquencies of na- tives the Government is not aware of any dis tinction drawn by the Ordinance between cone traventions of its provisions by Europeans and contraventions by other people,
The law equally requires obedience from all and it is especially desirable that gentlemen of position and influence should set a good example in somplying with that requirement,
4-It is to be regretted that an alternative of imprisonment in case of non-payment of fines should have formed part of the Magistrate's original adjudication, as the conjoint operation of sections 39 and 42 of the Magistrates Ordin- ance would indicate that where a fine is not paid and the issue of a distress warrant is not inex pedient, imprisonment should only be resorted to the Magistrate having without any such " direo- in case no sufficient goods can be found. But
tion" as you suggest reviewed his decision under section 97 of the Magistrates Ordinance and having omitted the alternative in question, the Government see no occasion to interfere.
5. In view of the fact that the Magistrate gave notice on the 8th February of his intention to review the case the publication in the Prese on the 9th February of your letter while the mat- ter was sub judice would appear open to criticism.
6. As section 77 of Ordinance 15 of 1889 enacts that every building or work whatsoever. commenced in contravention of that Ordinance shall be deemed for the purposes of the Ordi. nance a "nuisance" and as section 85 renders everyone committing a “nuisanos" as defined in section 77" liable to a fine not exceeding $100, it would appear evident that you incurred the liability to that maximum penalty by commenc, ing works in contravention of the requirements of section 69.
It is, therefore, difficult to follow your state- ment that you were unjustly and erroneously fined.
It is usual either to attend a summons per sonally or at least by a legal representative and it is usual for persons subpoenaed to attend in compliance with their subpoenas, for in adjusting the fine a Magistrate may well require to hear some evidence even if the party summoned should enter a plea of " technically guilty." The forbearance shown by the Magistrate in respect of these omissions should, it would seem, acquit him of any personal feeling in the matter.
7. Where a party is dissatisfied with the Magistrate's decision it is usual either to ask for a rehearing or to appeal.
It was quite open to you under section 97 to have the case reopened and reheard" when the Magistrate gave notice of his intention to re- view his decision. That is, presumably, the rea son why witnesses were summoned to appear on the occasion of the review by the Magistrate of his adjudication.
8. In oonclusion, I am directed to point out that the usual methods for correcting any erroneous decision of a Magistrate are open to all and that it is ordinarily preferable to resort
deavouring to hold up to public animadversion dress ex parte letters to the public Press en to them in the first instance rather then to ad-
the officers who put the law in motion, the Magistrate, and the law he is called upon to able for a Magistrate to reply to such letters administer; especially as it is obviously undesir- through the same medium.-I have the honour to be, gentlemen, your most obedient servant,
(Signed) J. H. STEWART LOCKHART,
Acting Colonial Secretary, Hongkong, 7th March, 1895. ceipt of your letter No. 401 of the 4th March in Sir, We have the honour to acknowledge re-
answer to ours of the 8th, 9th, and 18th ultimo aud in reply beg to point out that while H.E. the Governor may not be in a position to cen sure or blame the Public Works Department for their action in the past in causing sam monses to be issued, without notice, to enforce the provisions of the Building Ordinance, it is certainly is in his power to give directions that the officers of that department shall not take legal proceedings without first obtaining the advice of the Attorney-General or Crown Soli. oitor, and without giving the parties offending