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Mr. Lang-Is your Lordship of opinion that clause 3 states my client is a partner!
His Lordship--I am of opinion that both of you stated you were partners, and now deny it, Mr. Dixon-I think there are two or three branches in this business. In some branches they are, and in some they are not partners.
His Lordship said he could not take the pleadings in their present ambiguous form and adjourned the case till Wednesday.
2
A DEAL IN KEROSENE.
Ip Chan-kee sued the Fat Hing firm to recover $44.20, being money paid to the defend. ant firm on September 16th for 20 cases of kerosene oil to be supplied and placed on board the R. Borneo, then in port.
Mr. H. K. Holmes appeared for plaintiff, and Mr. C. F. Dixon (of Mr. John Hastings' office) for defendant.
Mr. Holmes stated that defendant received payment of the amount claimed for 20 cases of kerosene oil which were to be placed aboard the Borneo. The oil was not placed on board and plaintiff was suing for the recovery of the amount paid.
His Lordship-When was the oil to be placed on board ?
Mr. Holmes-On the 16th.
His Lordship-1 think I see what is coming. The typhoon was on the 18th.
Ip Chan-kes said he bought 20 cases of kerosene oil from delenda:t on the làth. was to be placed aboard the Bornen, then fying at Sawan, on the 17th.
In reply to his Lorship, Mr. Dixon said the amount, $44.241, was admitted.
His Lordship-Is. it до act of God you are going on i
Mr. Dixon-I don't know yet.
Witness, in cross-examination, stated that when defendant quoted an amount he paid cash. That was on the Bith, After payment bad been made platiff told defendant that be wanted the
put
hoard. Defendant promised to do this without extra payment. He did not describe the oil in an insurance proposal as miscellaneous goods.
Mr. Dixon said his deience was that the goods had been passed to the plaintiff, therefore, with the passing of the goods the risk also passed to him.
His Lordship-bat risk?
Mr. Dixon-The risk incurred during the time of the contract being compisted and the goods being delivered on board. The defondant volunteered to bare the goods put on board for the plaintiff, therefore he was in the position of a voluntary bailee and ouly liable for gross negligence.
His Lordship-That is the point I have been trying to drive at all the time. Are yon entitled to keep all your money?
Mr. Dixon-Yes; all we undertook to do was to deliver those goods on boa d, and as voluntary bailees are only liable for gross negligence,
His Lordship-Did you put them on board? Mr. Dixon-No.
His Lordship-All right. Then you mast pay ap.
Mr. Dixon-That was not part of the contract.
His Lordship But you agreed to do it. Choi Leung-san was then called and said be agreed to send the goods on board. The pro- mise was made after defendant had bought the goods and got a receipt.
His Lordship-Why didn't you send them aboard -I told my foki to engage a boat and send them.
And he didn't do so?—I don't know what he did; I was away at Aberdeen.
The foki stated that he put the goods on board a sampan and sent them off to the Borneo, but the ship refused to take them. This was on the 17th September.
Bis Lordship (to Mr. Dixon)-Both parties are innocent: who has got to suffer? By your negligence, in my opinion, you did not carry out your contract.
C
of?
Mr. Dixou-- What did the negligence consist
His Lordship-Not putting the goods on board.
Dr. Dixon-But the steamer wouldn't take them. Dangerous cargo like kerosene can only be put on board a few hours before a steamer sails. I submit there is no negligence at all.
THE HONGKONG WEEKLY PRESS AND
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His Lordsbip-Do you try to make me believe that this man, outside his contract to sell 20 cases, said—"I will put them on board?"
Mr. Dixon-Yes.
His lordship-Well, I don't. There are no gratuitous bailees in China, I have never heard of ore unless sometimes it is the poor official assignee. There will be judgment for plaintiff for the amount claimed and costs.
Thursday, November 22ad.
IN BANKRUPTCY,
{
BEFORE SIR FRANCIS PIGGOTT CHIEF JUSTICE).
BANKRUPTCY PETITIONS,
Re the Kwong Cheung firm ez parte the Tung Hang Yn firm.
Mr. Daniels (of Messrs. Johnson, Stokes and Master) applied on behalf of the petitioning; cre litor for a receiving order.
His Lordship -What is the act of bank ciuptey?
Mr. Daniela-That the debtor intended to suspend payment. The notice was a verbal one.
His Lordship-I am not quite sure the intention is sufficient.
Mr. Daniels-If he cannot pay and intends to suspend, it is an act of bankruptcy,
His Lordship-The words of the section say "if he gives notice that he is about to suspend If he intends to suspend he may do so six months hence. That wouldn't be an act of bankruptcy,
Mr. Daniels-If a demand is made and a debtor says he cannot pay, that is sufficient.
His Lordship-That is not an act of bank- ruptcy. He merely states he cannot pay.
Chan Kam-ming, manager of the petitioning firm, was then called and stated that the debtors owed his firm $2,000,
His Lordship-Is he a partner ? Witness said he was not,
Mr. Daniels-He can prove the debt,
His Lordship-He caunot sign a petition. I held that a long time ago. It must be partner.
The case was adjourned.
RECEIVING ORDER MADE.
5
Re the Kwong Chenng firm ez parte Lo Luk. Mr. F. P. Hett (of Messrs. Brution and Heft) who appeared for the creditor applied for a receiving order. Lo Luk said the debtor owed her $3,090,
An order was made, and the Official Receiver appointed trustee.
A DERTOR SUSPENDED.
Li Dart-ng ex parte the debtor.
I
{November 26, 1906.
Mr. J. S. Harston (of Messrs. Ewens, Barston and Harding) appeared for the trustee, and Mr. H. E. Pollock, K.C., for the lessor.
Mr. Harston stated that notice had been served on the lessor, but he wished to confer with the trustee and obtain his Lordship's directions as to whether counsel should be employed, as a sum of $7,500 was involved.
Mr. Pollock-Do I understand my friend's application is that we should hand over the $7,500 as security ?
Mr. Harston-Yes.
The case was adjourned for a week.
AN EX PARTE ORDER.
His Lordship delivered his decision in con. arction with an order made allowing a credit- or in Chung Shun-koo's bankruptcy to smend his proof.
Sir H. 8. Berkeley, K.C., instructed by Mr. Steavenson (of Messrs. Deacon, Looker and
Lowe, and Mr. M. W. Slade, instructed by Mr. Deacon) appeared for the trustee, Mr. A. R. R. F. C. Master (of Messrs. Johnson, Stokes and Master) and Mr. F. X. d' Almada e Castro represented a number of creditors,
His Lordship said—This debtor applied for the discharge of an order which I made allowing
one of the creditors to reduce the amount of his proof. He asks me before going into the merits to quash the order on the ground that the application for the order was made ex parte, and a material fact having been omitted the case fails within the principle which requires a uberrima fides to be shown on the ez parte application. After giving the matter my best
attention I have come to the conclusion that this point can only be raised by the person directly affected by the result of the ex parte application, and as the debtor is represent. ed by Lis trustee he is not such a person. He hs the right to attack the order in any other way he pleases, but not to upset it in this way. The question has been discussed in several rise8 but it is material to note there are two different categories of cases, and the question which the motion raises is not given the same in both. In one category the question is-If the omitted fact had been stated would the Court have made the order er parte? In the second it is-If the omitted fact had been stated, would the court have made the order at all? Hilton e. Lord Granville seems to have been a case in the first category. The opinion on this motion is that if I had known the facts now brought forward for the first time I should not have granted an injunction ex parte. I draw atten- on to this distinction between the two classes of cases, because it may be that the same principle does not apply to the second class although I am under the impression it does. If I had known the omitted fact should I have
Mr. E. J. Grist (of Mesars. Wilkinson and Grist) applied under section 27 of the Bank-granted the order ex parte? With such a ques- ruptcy Ordinance for debtor's discharge. In view of the report of tue Official Receiver, and the disaster in San Francisco which really led to the man's financial difficulties, Mr. Grist asked his Lordship to suspend the discharge for a very short time.
tion, a person who would not have to be served with notice if this ex parte application had been refused, could have nothing to do, and that this is the case here is clear from the fact that the trustee intimated that he consented to the order being made and still acquiesced in it. To put the question the other way round.— Supposing I quashed the order on this ground and required it to be made with His Lordship suspended the debtor for six notice, the notice would be given, the
His Lordship-Are the debts due for the goods be exported?
Mr. Grist-Yes, my I ord.
months.
CHUNG SHUN-KOO'S AFFAIRS.
Re Chunghun-koo ex parte Sam Che-chuen. In a first notice of motion to disclaim, Sir. Henry Berkeley, K.C.. was instructed by Mr. D. V. Steavenson (of Messrs. Deacon, Looker and Deacon).
Sir Henry-Your Lordship will remember you directed us to give notice of motion to
That has Ho Tung.
been done and find on your Lordship will
the Ale the consent in writing of Ho Tung. He had a ju gment given in his favour calling upon the debtor to spec fcally perform an agreement, but be now consents to its being disclaimed by the trustee.
There was another application for leave to disclaim by Mr. A. R. L. we, the trustee appointed by the Court in respect of the estate of the debtor. The application was made in respect of a lease dated June 17th, 1905, where by section of Marine Lot No. 7, together with all messuages, erections and buildings thereon, was demised by the Hongkong Land Investment Agency Co., Ld., to the debtor for the term of ten years.
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omitted fact would be stated, the trustee would still consent, it would be argued in Court and unless the Court saw some reason against it the same order would be made, but the debtor would have no voice in the matter however much be might think himself aggrieved by the order, and if he would hare no locus tandi on the motion if made without notice, how can be rely ou the dictum of uberrima fides and object in its having been made ex parte. Stress was laid on the fact that the trustee and the creditor are represented by the same solicitor. This ground of attack really amounts to a suggestion that the solicitor was deceiving the trustee as he was not acting in good faith. I see no evidence of this and I cannot conceive it from the fact that the solicitor does represent both the creditor, and trustee He may not have given him sound advic, but that can be dealt with on the debtor's motion to supersede the order. The real stress of the debtor's attack lies in the merits. With regard to the merits, I heard enough to call upon H Tang's counsel to deal with them, because I am strongly of opinion that Ho i ung cannot eat his cake and have it. He has done the damage as so unsecured.
h