82
SUPREME COURT.
Friday, 28th July.
IN BANKRUPTCY.
BEFORE SIR F. T. PIGGOTT (CHIEF JUSTICE).
WONG SAU PO BXPARTE WONG CHUNG OI
THE HONGKONG WEEKLY PRESS AND
received no notice of presentation of any bankruptcy petition. It would not be bona fide for a creditor, after receiving notice of a bankruptcy petition, to get any money.
His Lordship-If he has not received notice of the presentation of a petition, then he is quite safe up to the date of the re-eivinz order. Mr. Pollock-Quite so, My L rd. That is our contention. The learned acting Chief Justice seemed to think that payment of the money into Court by a garnishee was equivalent to a receipt of the debt.
His Lordship-What is the procedure under a garnishes. Is it always paid into Court?
Mr. Pollock-No, My Lord.
This was an application by Mr. G. H. Wakeman, trustee in insolvency, asking that the Fuk On Insurance and Godown Co., Ld., be directed to pay over to him two sums of $3,000 and $5,000 respectively, being sums due by the Wo Kee Hong and Kum Fung Yue to the Laiing for Fung Bank, which had been attached by the said Fuk On Company, on the grounds that the said company, before completing attachment,received notice through their solicitors, Messrs. Johnson, Stokes and Master, of the presentation of the bankruptcy petition against the debtors
[
the
Mr. Calthrop-At the time we were apply.
it money
had been paid into Court, and it was only at the time of our application to have it paid out that notice was given to us that a petition in bankruptcy had been presented. This was while we were in chambers. The learned acting Chief Justice had this notice before him at the time, and the question was brought before him.
His Lordship That is immaterial to me, surely. He could not have declined to give you the order.
money out.
Mr. H. E. Pollock, K.C., instructed by Mr. F. X. d'Almada e Castro. appeared for the Trustee in Insolvency, and Mr. H. G. Calthrop, instructed by Mr. H. G. Bailey (of Messrs. Johnson, Stokes and Master) opposed the Mr. Calthrop-Oh yes, My Lord. When be application on behalf of the Fuk On Insurance! knew there was a petition in bankruptcy he
the could have refused to pay Company.
He had some doubt at the time whether he should make the order, but knowing the petition in bankruptcy had been filed. the order for payment out was mad». would refer Your Lordship to Marryat and Hampden, page 421, where the principle is laid down that money which has been paid ont under an order of the Court cannot be recovered.
His Lordship reserved judgment.
į
LAI FUNG EXPARTE FUNG TAK,
I
This was an application for adjudication. Mr. Wakeman-The first meeting of creditors was held on the 9th December, 1904, when no resolutions were passed, and section 19 of the Bankruptcy Ordinance says that the Court shall adjudge a debtor bankrupt where no resolutions have been passed.
I make an order for His Lordship adjudication, and nominate the Official Receiver as trustee.
THE CHIG HOP EXPARTE LEUNG SING WAH, The Official Receiver. Mr. Wakeman, con- ducted a publio examination of the debtor.
The
Mr. Pollock, in support of his application, put in an affidavit filed by Mr. d'Almada, solicitor for the Trustee in Bankruptcy, which stated that on the 5th April, acting on instructions from the above named creditor, he, the solicitor. caused a bankruptcy petition to be filed against the above named debtors, and gave verbal notice of same before the money was paid out of Court. Counsel continued Mr. d'Almada was originally the solicitor for a creditor named Wong Chung Oi, and this man presented a bankruptcy petition against these debtors trading as the Lai Fung Bank. The matter came before His Lordship, the acting Chief Justice, as to the application for substituted service of that petition on the 7th April, 1905, aud His Lordship made the order for substituted service of the petition. Now, My Lord, I must go back a little and point out to Your Lordship how far the Fuk On had progressed at that time. They had obtained judgment against the Lai Fung Bank. Then they proceeded very expeditionsly and obtained garnishee orders against the Wo Kee Hong in respect of $3,000, Lai Yin declared-I am managing partoer and against the Kum Fang Yue in respect of of the Ching Hop firm which was opened 50 $5,000. These people paid the amounts into years ago. Its business is in old iron and Court on the 6th April; on the 7th, within a copper. When my father died eight years ago few minutes after the hearing of Mr d'Almada's the business was handed over to me. application for substituted service of the bank-business has been carried on at a loss for the ruptcy petition, Mr. Bailey, of Messrs. Johnson, past three years. Stokes and Master, applied for payment out to his clients, the Fak On Company, of these sums which were paid into Court by the garnishers. Notice was given by Mr. d'Almad to Mr. Bailey of the existence of this bankruptcy petition against the Lai Fung, and the receiving order was not made until after this notice had been given. On the morning of the 8th April, these Our sums of money were paid out of court, point, My Lord, is this, that inasmuch as the Fuk On did not complete their attachment of these two sums by actual receipt of the same antil after they had received, through their solicitors, notice of a bankruptcy petition, Mr. Wakeman, as trustee in bankruptcy, is entitled to come before this Court and to ask Your Lord- ship that these sums should be paid by the Fuk On to him as trustee in bankruptcy, for the gen- eral benefit of the creditors. I would refer Your Lordship to Section 38 of Ordinance No. 7 of 1891, wherein it is stated-"Where a creditor issues execution against the property of a debtor he shall not be entitled to retain the benefit of that execution against the trustee in bankruptcy of the debtor, unless he has com plated execution before the date of the receiving order and before the notice of the presentation in the bankruptcy proceedings." Therefore, My Lord, we contend that upon the true interpretation of that section, if the creditor, before actual receipt of the money, has received notice of the presentation of a bankruptcy petition, or if, in fact, there is a receiving order. then we say that the creditor is
not entitled to receive the benefit of that execu- tion. In order to make good his title to it he would have to show, firstly, that no receiving order had been made and, secondly, that he had
How do you account for the Ching Hop Company being unable to meet their liabilities? Because people did not meet their liabilities with us, and the Yuen Hing Bank failed last year owing us money.
You have made a proposal to your creditors to pay them $30-50 in 8.00?—Yes.
Do you propose that that deed of composition should be secured?--Yes.
Have your creditors agreed to this- Every
one.
If this is approved by the Court will it be carried out?-Yes.
Mr. Wakeman informed His Lordship that he thought it a very satisfactory arrangement,
and the examination closed.
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. WISE (PUISNE JUDGE.)
MAU YAU LIN . 8. M. GIDLEY.
This case, wherein the plaintiff claimed $12 on account of wages due, was adjourned by His Honour last Friday to enable the defendant to
take out a cross-summons against the plaintiff The writ, claiming for leaving without notice. $12 on tuis account. was served upon him in Court.
Mau Yau Lin declared-I did not leave without notice. When I asked my master for Lay wages he drove me away,
S. M. Gidley deposed-The last witness was
engaged by m. as cook. He left on the morning
of the 2nd July because he said his father was dead and he wanted to go to Macao. I did I did not give him leave to go, but he went not strike him.
|
(August 7, 1905.
Maa informed His Lordship that defendan struck him twice when he demanded his wages. He (witness) did not say anything about his father being dead.
Defendant I understand Chinese, your Lord- ship, and the cook said distinctly that his father was dead. I deny slapping him, but when he came into ms room and started arguing the point, I told him to go out or I would put him out.
His Lordship-Judgment and cos s for the That settles the plaintiff in each action. matter.
Saturday, 29th July.
IN ORIGINAL JURISDICTION.
BEFORE SIR F. T PIGGOTT (CHIEF JUSTICE).
A QUESTION OF PARTNERSHIP.
Re Tong Loo, plaintiff, and Li Fung, L Kum, li Seung, Lin Chan, partners of the Tak Heung, and Tak Heung defendants, and in the matter of the issue between the said Tong Loo, plaintiff, and Li Fung and Li Seung, defendants.
The issue to be tried was whether Li Fung and Li Seung were partners in the Tak Heung or not. The plaintiff had obtained judgment against the defendants, and now, two of them protested that they were not partners.
Mr. H. N. Ferrers (instructed by Mr. R. A. Harding) represented the plaintiff, and Mr. H E. Pollock, K.C. (instructed by Mr. Otto Kong Sing) appeared for the defendants.
The case for the plaintiff concluded, Mr. Pollock in opening the de'enca said-Your Lordship sitting as a jury found certain facts on the evidence put forward by the plaintiff but I was not certain how far you were with the defendants on the maiter. The first finding was that there was not sufficient evidence to show, that Li Fung and Li Seung concerned as partners in connection with the three loans made by the plaintiff.
were
His Lordship-My views are that there is no direct evidence of the partnership.
Mr. Pollock-I take it that Your Lordship finds the plaintiff has not proven satisfactorily that the two defendants were in fact partners.
His Lordship-Yes, and I do not think it is necessary to call upon you to give us any evidence with regard to the existence of the partnership, or with respect to the three loans made by the plaintiff. The poiut to which I wish you to devote your attention is the
'holding out." more especially by Li Fung.
{"
Mr. Pollock-With regard to "holding out," I would refer you to the issue. There is nothing about holding out in it, and in view of Your Lordsh p's remarks, I think there is really nothing left to try.
His Lordship-I don't know, you have allowed the evidence to come in as to holding out."
Mr. Pollock-But I subm tted that it was not
strictly relevant at the time.
His Lord hip-It seems to me relevant. The plaintiff alleged that defendants were partners of the firm on certain dates. They may have been partners, although they did not participate in borrowing. It is still possible that the plaintiff may have lent the money, know- ing from other sources that Li Fung was a partner.
connect There is nothing to the two defendants with the transactions with the plaintiff.
Mr. Pollock-As far as the three loans are concerned.
His Lordship-Regarding the "holding ont," the original doctrine was "holding out" to the plaintiff in the action, and I am not sure how far the evidence of the other persons is relevant. It is important to note my words, as other actions are in suspense pending the conclusion of this one.
Mr. Pollock-If it could be proved Li Fung admitted to somebody else that he was a partner, it would be evidence to show that he was in fact a partner. A man might be liable for holding himself out to be a partnor, but that would be a different cause for action.
such an extent in the conduct of the business His Lordship-Li Fang concerned himself to
as to look as if he were a partner.
Mr. Pollock-I submit that there is no evidence as to "holding out." What the