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in the absence of the notes and the statement by the defendant that he paid the money and destroyed them. There is absolutely nothing more to be said.
His Lordship-Judgment for the defendant.
6th September.
IN BANKRUPTCY.
BEFORE SIR FIELDING CLARKE (CHIEF JUSTICE.)
In re MI CHEUNG, KWAN' CHEUNG, AND HUNG CHEUNG FIRMS.
The Fung Hing Cheung firm, creditors, applied for a receiving order against the above Arms. Mr. Reece appeared for the petitioning creditors, and Mr. Hastings represented an execution creditor.
Mr. Reece said the petitioning creditors carried on business at 68, Praya West, and they presented a petition against Li Pang Cho, alias Li Min, alias Hung Fat, and Wan Kam, alias Wan Ching Chuen, who carried on business as three different firms-one, the Mi Cheung at 186, Queen's Road Central, the second, the Kwan Cheung, at 280, Queen's Road Central, and the third, the Hung Cheung at 104, Praya Central, as for eign goods dealers. The petition was presented on the 22nd August, and the amount of the debt due was $1,530.95, principal and interest on two promissory notes. The act of bank. ruptcy alleged was that the two partners in the three firms left the colony for Canton in August with intent to avoid or delay their cre- ditors. The petition was served on both these men out of the jurisdiction of the Court, and they said they would not appear. Affidavits had been filed setting forth the facts. The assets consisted of the stock-in-trade of the three shops, and amounted to about $3,000; the book debts amounted to $17,000, of which it was es- timated that $7,000 was recoverable.
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Mr. Hastings, in answer to his Lordship, said he appeared for one of the execution creditors against the Kwan Cheung firm, and his clients said the firms were of different partnerships, and that they could not be made bankrupts together. The various debts due by the firms must be treated separately, and the assets of the Kwan Cheung firm must be paid to the firm's creditors before the other firms' creditors were paid. The petitioning creditor is a creditor of the Mi Cheung firm and he sought to make both these people bankrupt.
THE HONGKONG WEEKLY PRESS AND
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subject.
[September 12, 1895.
His Lordship There must always be a day fixed for a debtor's examination, although there may be no chance of the debtor appearing to be examined. A day must be appointed, and if a debtor keeps away a warrant can be taken out. I have noticed in one or two cases lately, when there was no chance of the debtor appearing, the form of appointing a day has been dis pensed with. I will fix this day fortnight for the examination of the debtors.
His Lordship-If there is an adjudication | Ordinance might easily be brought in on the against these persons your execution will be effected as regards your clients' interests.
Mr. Hastings-Quite so, my lord; I seek that their interests shall not be affected. The Official Receiver would seize the whole of the property. I am particularly interested in this matter, because my clients got an order of the Court to stop these goods being taken out of the colony. This property has actually been preserved by my clients and it has cost them a considerable sum to do it; yet under the Ordin- ance my clients do not get any costs at all, and if this matter goes into bankruptcy they will be in a much worse position than any other creditor. This is rather a hardship on persons in the position of my clients.
ing firm, said he had had transactions with the Leung U, managing partner of the petition.
three firms, principally with Li Pung Cho. He had been told there were other partners.
In the affidavit the witness had made he had sworn that to the best of his information and
belief Li Pung Cho and Wan Kam were the only two partners, and his Lordship, in pointing this out, said, "I am afraid these affidavits are
somewhat unreliable.”
Witness-I have heard there are one or two others in the firm.
that this was a solemn and true declaration? His Lordship-Does the witness understand Did he mean solemnly, sincerely, and truly to declare that to the best of his knowledge there were no other persons in this firm; or is that a mistake ?
Witness-I meant that they were partners. His Lordship.-Did he mean there were no other partners P
Witness said he did not mean that they were the only partners, but that they were the only two that carried on business. He then said that one promissory note given on 23rd July last was for $1,000 and the other was for $500, both sums being first paid to the Mi Cheung firm.
His Lordship said that Mr. Reece could not and Hung Cheung firms get a receiving order against the Kwan Cheung
Т
Mr. Reece submitted he was entitled to a receiving order against the Mi Cheung firm on
the promissory notes.
Mr. Hastings-We have seized the goods of the Kwan Cheung firm and they are now in the hands of the Registrar. We have nothing to do with Mi Cheung, but there is another execution against the Hung Cheung firm, and I have also seized their goods.
His Lordship (reading witness's affidavit) "Saw him leave by the steamer Honam." Is that your solemn, sincere, and true declaration ?
Witness-Yes, I did see him.
Mr. Reece said he would not press for a re- Mr. Reece-I am asking for a receiving order, ceiving order except against the two persons. and am not asking for an adjudication. I think Cheung firm, said he saw Li Pang Cho go to Li Kung Ki, accountant to the Hung it is the practice to make an adjudication against Canton by steamer on August 15th. Wan Kam a firm and a receiving order against the part-went on the following day, but witness did not ners. The partners in these three firms are Li
see him on the steamer. Pang Cho and Wan Kam. Of course I do not admit that my friend has a locus standi here. An execution creditor has no locus standi on the hearing of a petition for a receiving order.
His Lordship-How do you make that out? Mr. Reece Well, my lord, I submit that the only parties to the petition are the petitioning ereditor and the debtor; they are in the position of plaintiff and defendant; it is simply a matter between the petitioning creditor and the debtor. Mr. Hastings said that according to the Bankruptcy Ordinance it shall be decided, in case of dispute, who are the partners. The dispute bere was as to the partners in the Kwan Cheung firm. He alleged there were other partners besides these two men.
N.
His Lordship-The only question is whether such dispute shall be settled on an application for a receiving order.
Mr. Hastings-I submit you will not make a receiving order against the Kwan Cheung firm unless an act of bankruptey is proved against each partner. I am prepared to prove there are five or six partners.
Mr. Reece The petition is heard undor sec- tion 7 of the Ordinance, and the late Acting Chief Justice decided on a similar application the other day that the execution creditor had no locus standi.
.......
His Lordship-How should you, Mr. Hast- ings, be prejudiced by a receiving order?
Mr. Hastings-I am prejudiced in this way. I have possession of the goods of the Kwan Cheung firm under a writ of execution,
His Lordship Did you see him leave by the steamer Honam?
Witness-Yes.
here and say you did not. Oh, dear! These His Lordship-Well, why do you tell lies people's statements are thoroughly unreliable. I cannot say who are the partners on this evi dence. I am not satisfied that there are not other partners; the evidence is altogether unre liable." You can take a receiving order on the Mi Cheung firm and describe these people as partners and give their aliases. There is a hardship about the costs of people who have been the means of preserving property of an estate.
Mr. Hastings-The old law was that they got their costs out of the estate first.
His Lordship-It is a hardship, and if any thing can be done in this particular case I cer tainly would like to see your interests in that respect attended to.
Mr. Reece-I quite admit it is a hardship, but it is the law at present.
Mr. Hastings-It keeps people from taking proceedings very much because we have to tell them they will not get any costs.
His Lordship-It is a matter upon which you might fairly make a representation to the Attorney-General, and I shall be very glad to assist if he consults me about it.
Mr. Hastings-I think a small amending
10th September. ·
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. Wise (ACTING PUISNE JUDGE).
CHOO FOO LAU V. W. D. LEIGHTON. The plaintiff sought to recover $990.25, the value of 642 bags of sugar shipped for delivery delivery from the defendant, who is the captain in Hongkong, and for which he could not obtain
of the steamship Bonnington.
Mr. Ewens appeared for the plaintiff, and Mr. Hastings represented the defendant.
Mr. Ewens said there were no pleadings and call the plaintiff. no special defence and therefore he would simply
Wong U assistant to the plaintiff, said he expected in April last to take delivery of 13,535 bags of sugar, according to the bill of lading, but he received only 12,840 bags, and between 300 and 400 of them were broken. He asked defendant's mate for the re- mainder-642 bags. The bill of lading was in excess of the actual number shipped, which accounts for the balance appearing to be greater than it was. The mate did not deliver the bags, and witness had to leave the boat, as she was just about to start. Previous to leaving witness looked round the boat, but saw no other sugar- there. The Choo Foo Lau firm were the con- signees of the cargo, and they had not been paid the value of the bags they did not get.
Cross-examined by Mr. Hastings-The sugar was shipped at Samarang and witness produced the mate's receipts for it when it was shipped at that port.
to the receipts, 38 in number, and said that each Mr. Hastings drew his Lordship's attention
one contained statements to the effect that the bags were broken and damaged, and in many instances the mate wrote that he could not be. responsible for the weight. The bill of lading had the following statement upon it Steamer broken." not responsible for drainage; bags torn and clause--"This bill of lading is consigned with- was also this extraordinary out mate's receipts, and does not bind the captain unless the mate's receipts are produced." That clause was doubtless put in în consequence of the statements in the mate's receipts.
There
Witness, in auswer to further questions, said that some of the bags were without sugar. There was not a lot of loose sugar at the bottom of the hold. It was not true, as the captain had said, that there were 50 to 80 tons of loose sugar
the men were not working in it up to their and molasses at the bottom of the hold, and knees. Most of the sugar was unmarked. It was shipped by five consignees altogether, and each consignment was divided by boards. He should take it as false that "it was impossible to identify each consignment on arrival, because the bags were all covered with molasses and no marks could be made out," —a statement made by the mate Witness received the sugar he had on the 20th and 22nd April, and he was not asked on the 18th and 19th to send lighters for the cargo, and Messrs. Arnhold, Karberg & Co., who were then the agents, did not send their coolie with a similar message.
Mr. Hastings said the case for the defence was that the sugar shipped at Samarang was in an extremely bad condition. The bags were rotten, and they were not fit to bear the weight of the sugar, and when they were being slung they broke and the sugar ran out. There were no marks on them, and on arrival here it was impossible to distinguish between the various consignments, and the consignees went on board and took the cargo as it came. There was no water in the holds, and no damage, was done on the way to Hongkong. The plaintiff's witness was on
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