July 28, 1900.)
Jurisdiction for the rectification of the register of the said ompany by removing therefrom the names of certain persons in re- spect of 108 other shares in the said Company and substituting therefore the name of your petitioner as the holder of the said shares, the said Company having refused, to accept the transfer of the said shares to your petitioner.
6. Your petitioner was at the said date and still is the sole beneficial owner of the said 108 shares and the said shares are of the present market value of $10,152 equal to £1,900 18s. 3d. | at the present rate of exchange.
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CHINA OVERLAND TRADE REPORT.
its Appellate Jurisdiction. And your Petitioner will ever pray, &c.
The Man On Insurance Company, Limited, filed an answer to the petition as follows:
1. That the said Man On Insurance Com- pany, Limited, refused to register the said Ho Tung as the halder of the shares mentioned in the first and second paragraphs of the said Petition on two grounds-First on the ground that except in the case of four of the said shares the shareholder from whom the said Ho Tung | clained to have purchased the said shares had not complied with the Provisions of Article 7. On the 26th day of April, 1900, the said No. 26 of the Articles of the said Company and second mentioned motion was directed by His-Secondly on the grounds that the Board of Honour the Chief Justice to be heard by the Directors of the said Company did not consider Full Court.
the said Ho Tung to be a fit and proper person to hold shares in the said Company.
8. On the 2nd day of May, 1900, your peti- tioner filed a notice of motion by way of appeal against the judgment of this Honourable Court in the said first mentioned motion, and on the 4th day of May, 1900, on the application of your petitioner it was ordered by the Full Court that the hearing of the said appeal should stand adjourned until after the said second mentioned motion had been finally heard and determined, or until further order of this Honourable Court. 9. On the 31st day of May, 1900, upon mo- tion made to the Full Court, consisting of Their Honours the Chief Justice and the Acting | Puisne Judge, on behalf of the said Company. it was ordered that the said second mentioned motion be stayed until the further order of the Court on the grounds that the said second men- tioned motion was frivolous and vexations and an abuse of the process of the Court, as being made upon precisely the same grounds in law as had already been decided by His Honour the Chief Justice in the said first mentioned motion and it was stated by His Honour the Chief Justice that such further order would not be made unless your petitioner was success- ful on his said appeal against the said judgment of His Honour in the said first mentioned mo- tion.
10. On the 8th day of June, 1900, the said appeal was heard by order of this Honourable Court in the Appellate Jurisdiction, dated the 2nd day of June, 1900 and on the 3rd day of July, 1900, judgment was delivered, His Hon- our the Chief Justice affirming his previous judgment and His Honour the Acting Puisne Judge holding that such Judgment should be reversed, whereupon the said appeal was dis- missed.
11.-By the said judgment of this Honour- able Court in its Appellate Jurisdiction it is decided that the unsigned document purporting to be Articles of Association of the said Com- pany improperly accepted by the Registrar of Companies and put by him upon the Register of the said Company is the Articles of Associ- ation of the said Company and that the re- gulations contained in Table A. of Ordinance No. 1 of 1865 are not the regulations governing the said Company.
12.-In consequence of the said judgment your Petitioner is unable to obtain the legal title to the said 108 shares as well as to the said eleven shares owned by him as aforesaid by the substitution of his name in the Register of Shareholders of the said Company for the names of the persons at present registered as owners of the said shares.
13. The present market value of the said shares is altogether $11,168, equal to £1,11258.6d. at the present rate of exchange and on each of the said shares there is a liability of $100 in respect of uncalled capital amounting, on the whole of the said shares, to $11,900, equal to £1,184 at the present rate of exchange.
14-The said judgment of this Honourable Court in its Appellate Jurisdiction involves your Petitioner's title to property exceeding £500 in value and the civil right of your Petitsioner to have the conduct and business of the said Company in which he is interested as the owner of shares exceeding £500 in value and having a liability exceeding £500 governed by the regulations contained in the said Table A in lien of those contained in the above men- tioned unsigned document. Your Petitioner therefore humbly prays,
That this Honourable Court will order that your Petitioner have leave to appeal to Her Most Excellent Majesty in Council from the said judgment of this Honourable Court in
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The Chief Justice said that it was the first duty of the Court in the case to settle what was the correct construction of the preliminary words and the first paragraph of the Royal Instructions regulating appeal to the Privy Council for the Supreme Court of Hongkong. The first paragraph was as follows:-"Every such Judgment, Decroo, Order, or Sentence, from which an appoal shall be sub- mitted to us, our Heirs and Successors as afore- said shall be given or pronounced for or in res- pect of a sum or matter at issue above the amount or value of £500 sterling, or shall involve directly or indirectly the title to property or to some civil right exceeding the value of £500 ster- ling." The governing words of the paragraph are "Every such Judgment," and there were two conditions laid down with regard to it. (1) That 2. That with reference to the 108 shares re- such Judgment shall be given or pronounced ferred to in paragraph 5 of the said Petition no for or in respoot a sum or matter at issue above proper application was made to the Directors of £500 in value and (2) that such Judgment shall the said Company for their consent to the involve directly or indirectly the title to pro transfer of such shares nor were the num.perty or to some civil right exceeding £500 in bers of the said shares or the names of the value. registered holders thereof ever communicated to the Directors. By a letter dated the 16th March last-addressed to the Secretary of the said Company-Messieurs Wilkinson and Grist, the Solicitors for the said Ho Tung, stated that their client had purchased more shares in the said Company and requested to be informed if the Directors still persisted in their refusal to register him as a shareholder. In reply to such letter Messieurs Deacon and Hasting, the Solicitors for the said Company, on the instruc- tions of the Directors wrote to the Petitioner's Solicitors pointing out that. no shareholder having complied with the provisions of Article No. 36 of the Articles of the Company. the
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Directors could not consider the matter.
3.-The said Company further say with reference to the shares mentioned in the said 5th paragraph of the said Petition that so far as he had acquired any interest in the said shares he, the said Ho Tung, acquired such interest after the date of the Judgment of the 26th February, 1900, in the 4th paragraph of the said Petition mentioned and with full knowledge of the purport and effect of the said Judgment and solely for the purpose of, if possible, bring ing himself within the rules as to appealable value contained in Her Majesty's Instructions for Appeals to Her Majesty in Privy Council from Hongkong and for no other purposes.
4-Apart from his purchase of the shares in the said Petition mentioned, the said Ho Tung is not now the holder of any shares in the said Company.
5. The said Company admits the statements in the said Petition to be true and correct, except in so far as they are contradicted or qualified herein.
Mr. Slade submitted that from the facts stated in the petition it was clear that the Judgment of the Full Court delivered on 3rd July involved both directly and indirectly the legal title of the petitioner to the whole of the 119 shares mentioned in the petition, which were, altogether, considerably above the value of £500, and it also involved a civil right exceeding that amount in value and, therefore, according to the Royal Instructions of the 21st January, 1846, regulating appeals to the Privy Council from the Supreme Court of Hongkong was entitled as of right to leave to so appeal.
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The appellant in this case had not founded his application on the first, but on the second of these conditions. He said that the Judgment which he desired to appeal against involves both his title to property exceeding the value of £500, and also his title to a Civil right exceeding the value of £500.
When the Judgment was pronounced by the Full Court on the 3rd July the appellant was the holder by purchase of 11 shares, worth £102 At that date he was also the holder by pdr chase of 108 other shares, worth £1,009.—Th question therefore to be considered was whether the decision of the Court on the 3rd July involved the appellant's title to property exceed- ing £500 in value. There was no doubt that the decision as to his title to the second set of 108 shares was governed by the decision as to the first set of 11 shares. The Company on- doubtedly held the appellant at arm's length with regard to the second set of shares, relying on the Judgment they had obtained with regard to the first set of shares.
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The case therefore fell directly within the scope of the second of the two conditions in the para- graph cited. Had the appellant obtained a decision in his favour with regard to the first set of shares he must have also obtained one with regard to the second set. The decision of the 3rd July governed both sets of shares.
The learned Judge stated that it was a ques- tion of some doubt in his mind whether, after the primary Judgment had been pronounced, and before appealing against such Judgment, a party was strictly entitled, if he thought fit to do so, to purposely increase his amount of interest with a view to obtaining a right to appeal to the Privy Council so far as the appeal- able limit of value was concerned. There was no absolute proof in this case that that was what the appellant had done, but a strong inference might be drawn from the facts stated in the petition that the appellant had purchased the 108 shares for that purpose.
His Lordship said he was not prepared to pro- nounce an opinion on the point. If was one which might possibly be raised before the Privy Council and was certainly an interesting and somewhat important one, but was not, however, necessary for the consideration of the Court in giving its decision on the present application. His Lordship therefore held that when Judg. ment was pronounced on the 3rd July that Judgment did involve indirectly the appellants' title to property and also to a civil right ex- ceeding £500 in value, and that, consequently, leave must be given to appeal to the Privy Council as prayed for in the petition.
The Puisne Juge concurred, but added that he also had some doubt as to the time when the appellant ought have been possessed of the addi- tional shares in order to give him the right to appeal to the Privy Council, but as the word
Mr. Francis for the Company argued that according to the proper construction of the first paragraph of the Royal Instruction it was necessary, before leave to appeal could be ob- tained that the "sum or matter at issue" in respect of which the Judgment was given should involve the title to property or a civil right exceeding £500 in value-and that in this case, the Judgment it was desired to appeal against was not the Judgment delivered by the Full Court on the 3rd July, but the Judgment of the Chief Justice delivered on the 26th February last which was affirmed by the Judgment" in the rule referred to could be Full Court on the 3rd July, and inasmuch held to mean the final Judgment of the Supreme as the petitioner was not possessed of Court of Hongkong, and at the time that Judg. more than 11 shares on the date of such Judg.ment was delivered, it did indirectly involve the ment of the Chief Justice, neither the matter at issue nor the said Judgment involved directly or indirectly petitioner's title to property ex- coeding £500 in value and therefore the Court have right not to grant leave to appeal, but the petitioner should be left to apply for special leave to the Privy Council.
appellants' title to the whole 119 shares of more than the appealable value, be considered the leave asked should be granted.
It was accordingly ordered that leave to appeal should be granted, subject to the usual condi tions as to giving security for the costs of the appeal, &c.