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December 10, 1906.]
CHINA OVERLAND TRADE REPORT.
of November 14th at the end of paragraph 6, says: | really is. Was it a wagering contract, or "Mr. Denoon added that he was looking into the was it a time bargain? There is nothing to matter on my behalf on September 14th"; and show, And as it is clear that the Court on September 24th in a letter to Mr. Almada of Bankrutcy can go behind even a judgment, he says:
"Mr. Descon already has my instruc- it is clear that all the circumstances under tions in the matter of the disclaimer." In any which time contracts were entered into circumstances, therefore, it would be it.
can be made the subject of inquiry. Di- possible to hold that the Land Investment Co.reatly this inquiry is sanctioned it is of course had an effective notice on the 14th impossible to limit it, and the questions put to September of the trustee's intention to disclaim, the creditor may inevitably include such as wili and so far as the written notice of intention to test the existence of the contract. This I disclaim of the 25th October, this, as I have cannot help, nor, as the claim has been alray said, is not of itself sufficient to operate sword to will it involve any additional hardship or as an actual disclaimer until the leave of the expense, or any departure from the general Court has been in fact giver While, therefore, I principle I have laid down. A. to the give leave to disclaim, I cannot make it procedure, there is no need for any issue, nor operative except from the time when the
any pleadings. I shall call upon this creditor order is drawn up. This carries with it the to come before the Court, as a person whom the right of the Company to retain rents acorned Court deems capable of giving information out of the $7,500 in their hands With regard respecting the debtor's dealings under Section to the remaining question, I am not at all clear 26 of the Bankruptcy Ordinance, I shall treat how and for what the Company will prove the proof accepted by the Official Receiver as a in the bankruptcy, but the question is not before sufficient prima facie proof of his claim, and he U18 DOW. This point, however, does seem clear. may then be cross-examined by counsel for the The money in their hands is called a security; Trustee, and re-examined by the counsel who is and the claim which they will make, if it is appearing for him. The question of ousts is admissible, will be one which falls within the reserved. objects for which the money was deposited with them in security. It is the debtor's money, and the Company has a lien on it expressly created by the deed. They therefore come within the definition of secured creditors in the Bankruptcy Ordinance. The motion having raised points on which the trustee has been unsuccessful, the Company must have the costs of the motion out of the estate.
CREDITOR'S CLAIMS.
His Lordship continued:-I have now to deal with certain questions arising out of my judgt ment on the motion of the Trustee oalling on certain creditors to establish their claims, and in default that their claims be expunged. The decision of this motion follows in natural and
logical sequence from that judgment. The Trustee being the successor in title of the Official Receiver can do no more than the Official Receiver himself. The claim of any creditor having been admitted, the Offoial Receiver could not come to the Court and say merely : "I have changed my mind with regard to a certain oreditor and I want his claim investigated." Nor can the Trustee. What can be done is that the Official Receiver or Trustee, as the case my be, can come to this Court with some ground of suspicion, some definite reason why he considers such and such a claim needs further investigation. I cannot put the decision of the Official Receiver to admit the claim quite on the high level of a judgment, neither can I hold on the other hand that the Official Receiver in the performance of his duty imposed upon him by section 30 (E) is a merely ministerial officer. He may require evidence to be furnished to him and must come to a decision upon the evidence before him, whether that originally furnished that which he has called for; and an appeal from his decision lies to this Court. His duties therefore are clearly magisterial in this instance. Looking at the question generally, what does the Trustee propose that this Court should do here? Merely call on the creditors to Enbstantiate or adduce further evidence
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in support of their claims, without adducing the slightest evidence or giving any reasons casting suspicion on the claims in support of his request. The mere fact that learned counsel has been instructed to call them "bogus ' creditors, as he did throughout his argument, is not sufficient; nor is the assumption that the Court will be bcodwinked unless the motion is Boooded to. The creditors are entitled to remain in the position in which the acceptance of their olaims by the Official Receiver has put them: and if the Trustee has any ground for supposing that the Official Receiver erred in acceping the documents, or if he had any ground of suspicions that the claim is a bogus one let him come to this Court and sy so, giving his reasons, and the Court will consider them. Without it-No! So much for the general aspect of the question. But with regard to the special case of the oil contract, a case has clearly been made on the law, and the mere mention "differences" in the contract shows that the question requires investigation; and pot in law only, but also in fact, We must inquire a little more partionlarly what that contract
Mr. Blade-I don't quite follow your Lord- ship's last words. Assuming I appear for this man could I not put him in the box and examine him?
His Lordship-I think it would be more consistent that I should treat it as if he had already given prima facie proof.
Sir Henry Berkeley-I think my learne friend's suggestion is the fairer for him and us, that he should examine his witness and prove
his case.
His Lordship-I consider tho Offcial Receiver's accep'ance of the claim as prima facie proof.
Sir Henry Berkeley-That course ought not to be adopted for this reason: you have accepted the reception of proof by the Official Receiver as primi facis evidence of the claim. I respect fully submit that the right course is to let my learned friend, in obedience to a direction of the Court, put the witness in the box to give further evidence in support of the claim. When he has given the Court his evidence the trustee might be satisfied. All he has ever asked for is that further evidence might be given, and how can I cross-examine without in the first instance hearing what he has got to
Bay.
His Lordship-The cross-examination is simply "what are the conditions under which the contract was entered into? I think that is the soundest ruling. The date of hearing is fired provisionally for the 8th, and the question of costs reserved.
Sir Henry Berkeley-Do I understand the Official Receiver should never hold any meeting or permit any creditor to vole on any sort of resolution until he has thoroughly gone into and investigated the claim made by the creditor, because the practice has been frequent ?
any
His Lordship-I don't think I 800 difficulty in interpreting subsection 9 of section
30.
Sir Henry Berkeley-If you once allow a vote I understand it is to stop for ever aft rwards,
His Lordship--There is nothing in my judgment to support that.
BANKING DIFFICULTY SURMOUNTSD.
His Lordship explained that the difficulty regarding the opening of sa account in counoo. tion with the debtor's estate had bien settled, therefore the former order he made would be cancelled and the money paid into the Hongkong and Shanghai Book.
AN IMPRISONED DEBTOR.
Yu Nam.
Re the Wing San Chuen firm ex parte Wong
$93
order had been made against the debtor firm Lo Ming filled the statement of affairs of the firm, and a sum of $900 had already been collected by the trustee in bankraptoy. He submitted that the present position could not be maintained as the affidavits showed nothing against his olieat.
Mr. Haraton stated that the debtor firm
and Co. in the sum $11,270 while the assets were at present indebted to Shewan, Tomes
returnable were between $800, and $900, and they had had $11,000 worth of goods during the six months preceeding the bankruptcy. As the result of an original action the prisoner was put in jail as he failed to find security.
His Lordship-But now that bankruptcy has supervened, how can you keep him in jail ?
Mr. Haraton-Under section 10.
His Lordship-Without going into the facts Is tould have thought that that ipso facto would have released him.
Mr. Barston submitted that under section 10 the debtor should be kept in jail until he gave a satisfactory acount of what he had done with his money.
His Lordship-I don't see how you can go so far as that. You might make a strong case for security for his appearance,
Mr. Harsfon-That is all I want.
His Lordship (to Mr. Barlow)—Are you willing to give security?
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Mr. Barlow-This man's a bankrupt, how can he?
His Lordship-So was that gentleman I just discharged, but he found security.
Mr. Barlow I would submit that now the bankruptoy has proceeded so far everything that could be recovered has been recovered. Assuming that he was going to run away it is - not necessary for his further appearanos now that~ the property has been restrained. I would suggest further in support of this, that at the meeting of creditors no resolution was passed, and if no instructions were given the official receiver to tak, nec es ary proceedings to detain this man he should be discharged, they have no right to keep him under this existing bond after he has been made bankrupt; that has been ruled in this Court already.
Mr. Harston-I submit your Lordship has power under the section I mentioned to order the debtor to find sufficient security.
His Lordship-The point Mr. Barlow takes is this: that the effect of the receiving order entitles you to no remedy against the person of the debtor without the leave of the Court. I don't know whether he is right.
Mr. Harston-Section 10 gives your Lordship power.
His lordship-But Mr. Barlow takes the previous point that the mad has no right to be in jail. The law seems to be fairly clear that he is entitled to his release if he applies for it, but it seems to me it was the business of the debtor at the time the receiving order was made to make his application for discharge.
Mr. Grist-He must give notice to the creditor who has been instrumental in putting him in jail.
His Lordship-The only point against you is, what is the use of it ?
Mr. Harston-In my affidavit a prima facie case is made out to show that there would be
some use.
His Lordship decided that the debtor should put up 85,0.0 security.
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Mr. Barlow consider this in extremely hard, and would suggest for your Lordship's consideration that this man, having been in prison all this time, the Oficial Receiver had every opportunity of collecting his debts. The alleged properties in China could be attached, but the man must not be kept in prison indefinitely.
His Lordship-I agree with you that under normal circumstances your client would be entitled to be released, but there is a series of amidavits showing a strong case against him.
This was an application for a debtor's release. Mr. F. C. Barlow (of Messrs. Goldring and Barlow) appeared to apply for the release of an imprisoned partner in the debtor firm. Mr. J. Hurston (of Messra. Ewens, Harston and Harding), M. E. J. Grist (of Messrs. Wilkin sou and Grist) and Mr. C. F. Dixon (of Msecurity be reduced. John Hastings' office) appeared to oppose the
application. of the word
Mr. Barlow informed his Lordship that he appared for Lo Ming,
pariner in the debtor firm who was at present in Victoria Jail for failing to find security. An affidavit filed on November 8th showed that a receiving
Mr. Barlow-I would then ask that the
His Lordship-The story of his transactions. is such that it is a very small sum indeed for you to have to find.
Mr. Barlow-Might I sak your Lordship to what extent this is to go; is there any possibility of this man ever being discharged ?
His Lordship-That is for you to find out.