42
The Acting Chief Justice-If there is likely to be any difficulty 1 will adjourn the case.
Mr. Fraucis-Mr. Hooper is here, and be can give evidence on the point.
Mr. Francis-O. I see there is a distinct clause in the mortgage:
The Acting Chief Justice-It is long deed, and I have not read all of it.
Mr. Francis-I did not read it all through myself, my lord: The passage runs-"When new messuages and tenements are erected and bailt to the satisfaction of the mortgagees, the mortgagees will advance sach further sums of money to mortgagor not exceeding $30,000, or a total sum of $100,000." That fits in completely with the words to which your Lordship first valled attention.
The Acting Chief Justice-Yes, that is so; ́that seems to be all right. It is rather an un-
usual dood.
Mr. Francis-It is unusual, my lord. Mr. Master, solicitor, was then called, and he produced several documents relating to the case, and proved the signatures. The principal had been owing since 1st June, 1892, and it was advanced on 15th November, 1889.
THE HONGKONG WEEKLY PRESS AND
年
[July 18, 1895.
cipal books of the firm. which it is bo-be heard by Japanese Courts; therefore, a coun lieved the debtors have taken out of the juris. ter-claim by a British subject against a Japan- diction of the Court, it has not been possible to ese cannot be heard in a British Court in verify these figures. Of the seventy books seized Japan. The Acting Chief Justice-I have no doubt by the bailiff of the Court when the debtors' treaty, to ne a British subject in Japan be- A Japanese subject has a right, by you have further evidence, but the question is premises were distrained for rent, one ledger fore a British Court, and the whether advances were made under this mort-ouly was found-that for last year from which
Court has no competence to hamper the enjoyment of gage.
the aggregate amount due to the debtor firm by that right by imposing conditions not con. persons in the colony appears to be $375.66 only. templated in the treaty. That, as our readers The curious feature about this ledger is that doubtless remember, was the main point in- the balances from the preceding year are not volved in the appeal just decided. The other brought forward. At the last sitting of the incidental points were, first, that even if a British Court the Official Receiver was directed to re- Court in Japan had jurisdiction to entertain a port as to the assets recoverable. He has now filed counter-claim in the case of an action brought his report, which shows that with the items shown by an ordinary Japanese plaintiff, it could not in the only ledger in the possession of the Court entertain the counter-claim in the present case, and certain information given to him by Chan since the Japanese Government was the plain- A On, a collector in the employ of the debtor tiff, and since, according to Japanese law, the firm, the total assets recoverable in the colony Government is not responsible for the wrong. will amount to $759.62. only. Whether these ful acts of its servants; secondly, that, having assets may be called "substantial" within the regard to the place of collision, Japanese meaning of Ordinance 20 of 1891. section 7. I do law must be applied; and thirdly, that no not now decide, but in the circumstances of the counter-claim could be brought where1, no case, in my discretion, I will make the order, direct action would lie. On the main point now though I doubt whether it will be found practi- decided in the Japanese Government's favour, cable to realize much from assets outside the the Court for Japan gave no decision for reasons colony. Mr. Reece states he expects some of the stated in its judgment, but the Supreme Court assets may be recovered from Sun Ning debtors. in Shanghai gave judgment against the Govern- I hope this will be so, but experience shows this ment, in spite of the strenuous and able is by no means certain.
pleading of Mr. Kirkwood before the latter tribunal.. It must be very pleasant to that gentleman to know that every head of argu- ment on which he relied before the Shanghai Supreme Court, and indeed his whole line of reasoning, were adopted by Mr. Cohen, q.C., and Mr. Findlay, Q.C., the learned leaders for An action was brought by Chung Hung to the Japanese Government before the Privy recover $36 from E. Mark, chemist at Messrs. Conncil, and that no fresh arguments were ad- Blackhead and Co.'s soap works, Shaukiwan.duced by them; for such, we understand, was The plaintiff said he was engaged as fitter by the case. It must further be very satisfactory the defendaut on the 22nd May, and was pro-to the Japanese Government to find that, not; mised a day's leave for a Chinese festival. His to any fault of advice or advocacy, but only wages were to be $18 a month. On the 29th mistaken view of the treaties and Orders May plaintiff had a holiday, and was paid $5.40 on 1st June for nine days' work. On the 2nd July he was discharged, and he was then offered $15 wages for the month. Ile refused to take this amount, and he now claimed two month's wages, one month's wages being in lieu of notice. The defendant said plaintiff was a fireman and not a fitter, and he did not understand his work, One day the boiler showed a pressure of over 100lbs. instead of a pressure of from 75lbs. to 20lbs. He was told that he was useless, and that unless he improved his wages would be cut down. He was no good for the work and consequently he was discharged.
The Acting Chief Justice-I suppose the reason why the defendants do not appear is that the property is not worth more than $103,000. Is that it ?
Mr. Francis-I think it is extremely likely. my lord. If the property was worth more they would certainly appear to redeem it. I ask
your Lordship for the usual decree of foreclosure. The proposed minutes of the decree have been filed in court.
The Acting Chief Justice-Some of the de- fendants are abroad; are they entitled to further time ?
Mr. Francis-Wo have considered that, my lord, and they are not entitled to further time.
The Acting Chief Justice-I will make the usual foreclosure decree, with costs.
12th July.
IN BANKRUPTCY,
BEFORE THE HON. W. M. GOODMAN (ACTING CHIEF JUSTICE).
Re the Kwong Wing On Firm and Chan Yuen. Chan Tsun, Chan Ying, and Ma Tsun, partners in the said firm. Be parte Chan Kiang Fü, a creditor. Mr. J. F. Reece appeared for the petitioning
creditor.
The judgment was as follows:-In this case the petitioning creditor, whose address is 21, Praya West, is a money lender, and the defend- ant firm until February last carried on business at 109, Winglok Street, in this colony, as Aus- tralian merchants. In July, 1894, the defendant firm borrowed from the petitioning creditor the sum of $500, which, together with the inter- est thereon (the rate of which is not stated in his affidavit), still remains unpaid. Application is now made for a receiving order against the debtor firm on the grounds that: (1) The part ners thereof on or about the 9th February last departed out of Hongkong with intent to defeat or delay their creditors; and (2) the said firm and the partners thereof in or about the month of March last gare notice to their creditors or some or one of them that they had suspended or were about to suspend payment of their debts. On the 11th June last copies of the petition aud of the order for substituted service were, accord- ing to the affidavit of Chan Cheung Sum. the late accountant of the debtor firm, duly served by him in Canton upon the part ners of the debtor firm, to whom he explained that the petition would be heard on the 28th Jane. They did not, however, put in an appear
ance.
The accountant states in his affidavit filed on the 27th Jane that the assets of the firm consist of about $43,000 of book debts. Of these about $1,000 are due from persons in Hongkong and about $2,000 are due from persons in the Sun Ning district and about $40,000 are due from persons in Australia. He is of opinion that of all the book debts $3,000 at loast are recoverable. be liabilities of the firm are stated to be about $20,000, of which it is expected about $10,000 will rank for dividend. Owing to the absence of the prin-
IN SUMMARY JURISDICTION. BEFORE MR. T. SERCOMBE SMITH (ACTING PUISNE JUDGE).
CHUNG HUNG V. E. MARK.
plaintiff agreed to accept $18 from the defendant, At the suggestion of his Lordship the
who was ordered to pay the custs.
THE "CHISHIMA”.“ RAVENNA” CASE.
in Council, as well as of international law, must be attributed the unfortunate judgment of the Court in Shanghai, which provoked so much commeut and caused such long and costly liti gation. On the other hand, the Peninsular and Oriental Company are to be sincerely sympathised with. Acting under excellent legal advice, following the procedure plainly indicated by an Order in Council, and having had their case admirably presented by Mr. J. F. Lowder in Yokohama and Shanghai, and by counsel of the highest eminence at home, they find themselves condemned, at this initia- tory stage of the proceedings, to pay costs that claim. probably amount to a great part of their counter-
The Privy Council having decided the main' question in favour of the Japanese Government, it was not necessary for their Lordships to deal with the incidental points. We feel assured, however, that they took care to guard against the possibility of the opinions expressed by the judges in Shanghai being elevated hereafter to the rank of precedents.
circumstances. The principle involved in this particular case, however, belongs rather to the realm of international law, and we may frankly congratulate the Japanese Government and its legal advisers upon their complete and unquali-
We understand that Mr. M. Kirkwood, legal adviser to the Japanese Government, upon whom has devolved the duty of controlling and managing the appeal from the judgment of the portance, not only to Japan, but to every country The decision in this appeal is of great im- Supreme Court in Shanghai in the Chishima- where the Queen exercises extraterritorial Ravenna case, and by whom solicitors and jurisdiction under treaties and Orders in Council counsel were retained and instructed, received similar to those applicable in Japan's case. on the 4th instant a telegram from London It is our privilege to believe that. so far to the effect that their Lordships of the as concerns the assurance of obtaining justice, Privy Council (the Lord Chancellor, Lords no suitor can suffer by submitting to the Watson, Macnanghten, Davey, Hobhouse, Shand, jurisdiction of a British tribunal under any and Sir R. Conch) gave their decision on the 3rd instant, advising Her Majesty to reverse the judgment of the Shanghai Supreme Court, and to allow the appellant Japanese Govern ment its costs in all Courts. The ground on which their Lordships based their decified success.---Japan Mail. sion was that the British Courts in Japau have no jurisdiction to entertain a counter-chim in any snit against a Japanese plaintiff. The The Russian fleet which was assembled at Che- question had been discussed more than once in foo, the N. C. Daily News says, is now dispersing, these columps long before the Chishima Ravennu and it would seem that Russia's-objects have collision took place, and our contention always now been accomplished. Admiral Tyrtoff with was that the Order in Council imposing upon the greater part of the fleet goes to Vladivostook, Japanese plaintiffs in a British Court the ob- where the Manjour will join, as soon as she has ligation of submitting to the jurisdiction of been relieved at Yokohama by the Emperor the Court in respect of a counter-claim was Nikolai I., which is to remain in Japan at the ultra vires. The line of reasoning upon which orders of Admiral Makaroff, who is lying in- this conclusion was based takes the form of a valided at Miyanoshita. Admiral Alexéisff re- simple syllogism:-The jurisdiction referred to mains at Chefoo with the Vladimir Monomach in Orders in Council being acquired by treaty as flagship, the Zabiaka, Kreiser, Otvajny, and must never exceed the provisions of the treaty; Bobr. This squadron goes probably to Vladi the treaty provides that all suits in which | vostock about the end of August, The Koréetu Japanese subjects in Japan are defendants shall is at Chemnipo.