380
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[December 1, 1908.
Mr. Pollock-Technically, we could keep it open, but in such a case it would be a matter of arrangement.
Sir Henry contended, in view of authorities he quoted, that a security was not liable for any claim after the termination of the lease Regarding the re-letting of the premises by the Land Investment Co., it seemed inconsistent that they should regard themselves as agents for his client.
THE HONGKONG WEEKLY PRESS AND
done, or failed to do, once already. There 30th September, because by the terms of the must be some limit. For the benefit of the lease the money was to be paid in advance. The creditors generally, the Offici·1 Receiver or the trustee informed the Company that they were trustee is given a right of exercising a strict going to disclaim before that time. The lease supervision over the claims of any individual ought to be disclaimed and $75 ought to be creditors; but when once this supervision has paid by the Land Investment Co. into a general been exercised the individual creditor is entitled fund, leaving the Company to make a claim to to some protection also. His position cannot prove in bankruptcy for any loss they may have be affected vis a vis the officers who are carry-; sustained by reason of the disclaimer. Proceed ing out the Bankruptcy proceedings by the facting, he remarked that the fact of Mr. Deacon that there has been a change in the officer, and acting for both parties was of considerable a new brain has been brought to bear upon the importance, because notice to the solicitor was investigation. If a new Official Receiver had notice to the client. If the Land Investment been appointed, could he revise his predecessor's Company chose to employ the same solicitor action? Undoubtedly Lot. Nor can a trustee as the trustee, and if the trustee did like- who succeeds to the business of carrying on the wise, then each was bound by the notice bankruptcy. I have purposely omitted any given to the solicitor for the parties to com- reference to the Fuglish practice which is more municate to them. On the facta disclosed the elaborately defined, because I think the meaning of the sub-section is clear. But I think that the interpretation I have given brings the Colonial procedure into line with the home practice. But the question of interpretation Bettled, does it follow that the claims of creditors cannot be investigated, and further evidence to substantiate them not be re- quired? By no means; but the day of doing this then lies with the Court, which may be set in motion by the Official Receiver, or if he has passed on his functions, by the trustee. The English cases which deal with this branch of the case seem to be clear that when the powers of the Official Receiver or the trustee under the section have been exhausted, the application must be to the Court to expunge, and that there is no limit to the time during which this may be done. I shall treat the motion as if it were such an application. It will be advisable for the trustee to consider as to which of the claims he thinks it expedient to press the motion. I shall deal with the question of costs hereafter.
In reply to Sir Henry Berkeley, the Chief Justice said he would not deal with the question of costs until the whole action had been disposed of. With regard to Chan On's claim of → $62,000, the matter could be brought up with Chan On bringing an action against the
trustee to recover.
Legal argument followed, at the close of which His Lordship said he would reserve his decision on the points raised.
APPLICATION TO DISCLAIM.
Another motion in the proceedings anent the bankruptcy of Chung Shun Koo was made by Sir Henry Berkeley, K.C., who applied to dis- claim the lease made between the debtor and the Hongkong Land Investment Company lessors. Mr. H. E. Pollock appeared for the Company.
as
trustee need not come before his Lordship at all for leave. The notice given by the trustee through the solicitors on the 14th September was effective notice, and the Land Investment Company not having within seven days of the notice, given notice of their intention. Admittedly the notice was a verbal one, but the party receiving it having accepted it, a verbal notice was sufficient. Continuing, he said that the sum of $7.250 was deposited by way of security with the Land Investment Company, but as the debtor never went into occupation of the premises, and as the trustee gave a disclaimer which was accapted by the Land Investment Company and on which the trustee had acted, he asked the Court that the disclaimer must take effect as a matter of good faith.
Mr. Pollock submitted that the bankruptcy rule referred to by his learned friend was not in force in the Colony. He referred to section 71 of the Bankruptcy Ordinance and contended that from the wording of that section it was clear that the intention of the Legislature was to make such parts of the Code of Civil Proce- durs as related in particular to enforcing judg. ments of the Court, or matters of that nature, applicable in bankruptcy, but they did nothing to bring into force in this Colony any rules as to matters already dealt with by the provisions
of the Ordinance.
to me rather an
His Lordship-It seems extension of language to say, where the Bank- ruptcyrdinance says, the rules of the Court are to apply, for when you turn to the rules of the Court you find another section which says some other rules apply.
Mr. Pollock- was going to submit that to your Lordship. One wouldn't call bank- ruptcy rules operating under the Home Act rules of Civil Procedure.
His Lordship-The difficulty I feel about the same thing is that if I agree to this amount going in, the whole must go in at once.
Mr. Pollock-I submit that sections 3 and 4 don't carry the matter any father. Section 4 clearly refers to ordinary practice in the ivil Procedure of Courts.
His Lordship-Has the point ever been decided ?
Mr. Pollook-I'm not aware that it has. Sir Henry-I don't know that it has ever been raised before.
His Lordship-I must consider it.
Sir Henry Berkeley said the lease was made on the 14th Jane, 1905. It was to take effect on 1st February, 1906, and was for ten years. The lessee was adjudicated bankrupt on 13th September, 1906, and Mr. Lowe was appointed trustee on the same day. Messrs. Deacon, Looker and Deacon were employed by Mr. Lowe as his solicitors, and at that time the firm were also solicitors to the Land Investment Company. On the day after his appointment as trustee Mr Lowe went to see his solicitors and informed them that he desired to disclaim this claim from the Land Investment Company and instruct. Mr. Pollock thought he wou'd be able to ed them to give notice to the company and show very strong reason for not applying the apply to the Court, The same day Mr. Deacon rules in this case. He asked his Lordship to told Mr. Lowe that he had done as instructed compare subsection 3. section 48 of the and that the Secretary agreed that, pending Hankruptcy Ordinance and subsection 3, section any application to the Court for leave to 55 of the English Act of 1883, and said it was a general rule in the interpretation of statutes disclaim, the Company would continue to
one section Was hold the property, the nature of their holding that where
copied from to depend on the decision of the Court. The another, and where certain omissions were fouad, importance of that was that the Company had it was to be presumed that such omissions were written to the debtor that they would not be ready intentional. Ile asked his Lordship to compare till August, and an arrangenent was made that the two important omissious in these sections rent should become due from 1st October. Mr. and submitted that those words were deliberate y Lowe wrote reminding Messrs. Deacon, Looker omitted by the Legislature with an object,
was that through them he had Further, he submitted that there and Deacon given the Company notice, because in the possibility of an effective disclaimer being made without the leave of the Court having first been meantime questions had arisen as to the notice. He was now going to ask the Court that in obtained. The only disclaimer that could have giving leave to disclaim, leave should have any hinding effect was one properly made under effect as from 30th September because, had the the Ordinance. He also contended that rents Land Investment Company been told at the should be allowed his clients from October 1st to date, and that they were entitled to keep the first they would not recognise the disclaimer. "be lease had been in existence since June, bankruptcy open until the lease expired. 1905, and by the agreement made payment was not commenced until 1st October, 1906. The trustee wished to disolaim from the
до
His Lordship-Keep it open for 10 years? Sir Henry Supposing it was a 999 years'
lease?
His Lordship reserved his decision.
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. WISE (PUINNE JUNGB).
ALLEGED FALSE IMPRISONMENT. The case was concluded in which Cheang Lai claimed from Cheang Tsui the sum of $1,000 damages for false imprisonment.
Mr. E. P. H. Lang (of Messrs. Deacon, Looker and Deacon) appeared for plaintiff, and Mr. C. F. Dixon (of Mr. John Hastings' office) for defendant.
His Lordship held that the claim should have been for malicious prosecution, not false im- prisonment, and dismissed the action.
THE STRANDING OF THE
HEUNGSHAN.”
MASTER ABSOLVED.
A Marine Court assembled at the Harbour Office'on Nov. 27 to conduct an inquiry into the circumstances attending the stranding of the British ship Heung han during the typhoon of September 18th. Lient. C. W. Beckwith, R.N. Stipendiary Magistrate, presided, and the others constituting the Court were Commander E. Win- strop, R.N., H. M. Naval Yard; Mr. Harry Gankroger. master of the 8.8. Doric; Mr. Thos. A. Mitchell, master of the B.8. Sui Sang.
The letter from Captain Morrison, captain of the Heungshan, and the warrant from H.E. the Governor for cor ducting the inquiry having
been read
The President said he proposed that the Court should inquire into three points: (1) Was the master justified in anchoring where he did; (2) was everything done after anchoring to prevent everything done by the captain and officers to dragging; and (3) after the ship struck was
save life and property?
two
Captain Morrison said the Heungshan left Macao at 8 o'clock in moderate south west wind and rough sea. At 9.30 the wind increased, and a sudden squall carried away the upper awning. He kept the ship up to the wind to anable the men to furl the awnings, Shortly after this the wind and sea increased to typhoon forse accompanied by blinding rain, and he then altered his course to west and west by south. He kept that course until 10,20 when he decided to anchor. At that time he thought he was or three miles to the west of Sanchau. He slowed the engines, and anchored, letting go the starboard anchor with fifteen fathoms of chain, and afterwards let go the port anchor, He veered away his chain until he had 91 fathoms well outside on starboard anchor and 75 fathoms on his port anchor, there being about four fathoms of water. He tried to help her by steaming ahead with the starboard engine; and put the helm hard aport, hoping to bring her head up to her anchors. Owing to blown оде of the awnings having been away, he could not
this At manage 10.40 finding his efforts to bring her head up towards her anchors he stopped the engine. The chief officer was stationed by the windlass carefully watching both cables to see if she dragged. By this time strong typhoon squalls, with blinding rain came from the west, the ship, still heading south, lying quietly. He came to the conclusion this was the effect of the flood tide making against the wind. This continued till 12.10, when in the midst of a terriflo squall be saw rooks practically under the Heungshan, on her port helm. He believed she must have taken the rocks abaft her port quarter a few minutes before. As soon as he saw the rooks he put the engines full speed astern and then stopped them immediately as he found she had taken the reef and was hard and fast. As there seemed considerable panic smong the Übinese passengers—some of whom were out on the
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