March 2, 1908.]
CHINA OVERLAND TRADE REPORT.
AR
151
Mr. Goldring-It is notice of suspension of, view of the act necessary to carry it out, or payment, (Mr. Goldring here read the notice). merely from that of its consequences, an His Lordship- hat is not & notice of order deporting a person from the Colony is suspension.
extra-territorial. It is equally clear that a Mr. Goldring quoted "we have no money to¦ Colonial Legislature has no power to legislate pay your debt or other debts."
extra-territorially; and
A concrete illustration of principle, it may be said generally that a Colonial Legislature cannot make any of the arrangements necessary to carry out the extradition of fugitive criminals, without the express authority of Parliament. But in the present case the proposition cannot be applied without further inquiry into the subordinate factors which have led to this Ordinance being passed.
His Lordship-I would like yon to give me an authority. I have refused several applications like this.
Mr. Goldring-In previous cases I have known a letter similar to that to be sufficient. It seems to me the firm could not pay, and stated that fict clearly in the letter. Will your Lordship grant me a week's adjournment.
Mr. Dixon-I must oppose that, and ask your Lordship to dismiss the application with cost, against the petitioning creditor.
Mr. Goldring-There are other grounds for the application. Execution has been issued against the firm in three actions, and their goods have been seized.
His Lordship-All acts of bankruptcy ought to be stated.
Mr. Dixon-I submit your Lordship cannot deal with an act of bankruptcy which is not alleged.
The bearing was adjourned to suable Mr. Goldring to file further affidavits as to the of bankruptcy.
Tuesday, February 25th.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.
I have gained in the Court that the compradore system is responsible for a great deal of what goes on in commerce in the Colony. I am well aware that the compradore's security does often cover only a small proportion of the liabilities which be incure, I know too that the compradore system is, and is likely to be for many years, essential to carrying on trade with the Chinese. But I am bound to say that I do think the existence of that system leads to a feeling of false security, and that the inevitable result offered is that sometimes a course of dealing is entered into with Chinere which would not be entered into in like circumstances with Euro- | peans. There is only one other matter I must refer to, and that is the part which the abnormal
The steps that have been taken in the fluctuations in exchange lave played in this
matter of extradition of Chinese subjects matter. I of course cannot go to the extent of
from Hongkong to China, are as follows:-- saying that a rash and hazardous course of
(1) the Sovereign has entered into the Treaty commercial conduct becomes the opposite when
of Tientsin, by Art. 21 of which this extra- exchange has precipitated the crisis. Nor can
dition is guaranteed. The making of a I say that dealings not otherwise rash and
Treaty is within the prerogative, and there hazardous become so when exchange brings
is no limit to the power; but although it them to grief. I am doubtful even if I can say
does not require the sanction of Parliament, that the rash and hazardous dealings becoms
if in order to its executive nets within the more so in like circumstances. It seems to me
realm are necessary and Parliament does not rather justifying op condemning the not by the
make necessary provision, the Treaty oblig result. I suppose commerce has to go on
aetations cannot be fulfilled. Therefore in this subject to these violent and disturbing
case some legislative action was necessary, and fluctuations of the silver market, and on the
the question is whether this must be action whole I am disposed to say that the question of
on the part of the Imperial Parliament, or exchange can only be left out of consideration
whether the Colonial Legislature can do in a question like the present. So that the
what is necessary. There is no doubt that, question before me is what view am I to take
speaking generally, when it is found neces of the debtor's conduct in the following
sary to authorise extra-territorial action on circumstances:- After a period of prosperity.
the part of the Colonial Executive, or to he finds himself practically at the end of his
introduce some extra-territorial provision. resources. The market is in a very shaky con- In the matter of In Kai-shing, and in the into the law of the Colony, it must be done dition, but he has orders from the country some matter of the Chinese Extradition Ordinance by, or with the permission of, the Imperial of which are executed and some not; he goes on No. 7 of 1889 In this matter Sir Henry Parliament (McLeod . Attorney-General of with his trade, in which however, the element Berkeley, K.C., instructed by Mr. Otto Kong New South Wales). Further, it is also settled of speculation is never absent, and gives even Sing, appeared for the sppellant, and the as a general principle that the fact that the larger orders than before. He is running a race Attorney-General, Hon. Mr. W. Reex Davies, King has approved, or has not exercised his with exchange and is beaten. But he finds the instructed by Mr. F. B. L. Bowley, Crown powers of disallowance, in respect of any European firms, who know the fluctuations of Solicitor, for the Crowe. Their Lordships Ordinance will not give validity to any exchange and their effect on the yarn market, delivered reserved judgments in this matter. extra territorial provisions which it may will still give him oredit. If I had to jadga The Chief Justice said: The question of contain. It is also settled law that a him by his conduct, and mete out the punish-this man's extradition comes before us in two | Colonial Court Can declare A Colonial ment of the bankruptcy law, I should suspend ways as an appeal from Mr. Justice Wise's Ordinance to be altra vires. But although his discharge but I have, as clearly appears decision discharging the writ of habeas from the Official Receiver's report, to mete out corpus which had been obtained, and also on the punishment to others, by depriving them an original motion for a halwax corpus to the of what they find they can save from the wreck Full Court. and as there is no compulsion in the matter, 1 think in the circumstances, that I should not be justified in doing this. Stated in this way the somewhat anomalous powers of the Court are explained. I am
not desling with the debtor, but with Lis creditors, and therefore it in that the cas 18 em- phasise the justification-the speculations must be of such a nature as to make it against public policy to approve the solema. In going counter to the wishes of the legal majority I can only do so on grounds of public policy. ably and forcibly argued that this man. speculations were against public policy. The considerations which induce me not to accept this argument sufficiently appear from what I have already side. I therefore, but with hesitation which this judgment gives expression to, approve the scheme.
It was very
#
CREDITOR'S PETITION, Re the Yuen On firm.
Mr. P. W. Goldring (of Messrs. Goldring, Barlow and Morral) applied for & receiving order on behalf of the debtor; Mr. C. F. Dixon (of Messrs. Hastings and Hastings) appeared on behalf of three partners to oppose the application; Mr. Crowther Smith (of Messrs. Almads and Smith) appeared for the managing partuer of the firm, while Mr. H. W. Looker (of Alessrs. Deacon, Looker and Deacon), and Mr. E. J. Grist of Messrs. Wilkinson and Grist) represented other creditors.
Mr. Goldring-The position is somewhat complicated, my Lord, because notice of opposition has been filed by Mr. Dixon,
His Lordship-What do you want?
Mr. Goldring - I want a receiving order, and I understand Mr. Dix-n, who app ars for some of the partners, opposes it.
Mr. Dixon-1 appear for three of the partners of the firm to oppose the application. Mr. Smith-I reprezent the managing part ner and agree to the application.
His Lordship-I have not seen the act of bankruptcy yet.
THE SWATOW REFORMER LIBERATED.
or other.
this argument seems to fit this case to a nicety, there is another question to be consi- dered another prerogative right involved. In purely Crown colonies, those nequired by A proliminary point was taken by the conquest or cession, the King himself has a learned Attorney General that no appeal lies prerogative right of legislation; in this way because this is a criminal matter But they differ essentially from settled colonies, Section 23 of Ordinance 3 of 1873 allows | the Sovereign's rightstherein being created by appeal in all cases other than criminal trials. Act of Parliament, and now regulated generally I think, therefore, that an appeal lies. And by the British Settlements Act, 1987. Hong. there being apparently some advantage in kong is a coded colony. Now, treating as we, connection with the adinission of evidence by of course, must do, the non exercise of powers making an original motion also, I suppose of disallowance, whether expressly there is nothing to prevent that being made, wise, as the same as an act of apprital, this is as according to the decision in Bell Cox's an act of the King, and, therefore, unless case, a man may go to every Court for a there is any other question involved, this kithens corpus, though not, as seems originally Ordinance, which has not been disallowed, is to have been thought, to every Judge. | by virtue of these two prerogatives intra virex. maintain the view that I expressed in the In answer to this it was said that the King case of the seven witnesses committed for can only exercise his prerogative rights perjury, that this double procedure is not through his Privy Council, and therefore necessary, and therefore unnecessary, as it that his approval or non disallowance have certainly increases the costs of such been by Order in Council. applications which ought to be as little costly as possible, and I feel certain that any benefit which one procedure may give would certainly not be denied on the other.
13 veter
in the case of
But
This would not be so in a settled colony, even in face of the British Settlements Act, because in them there is an express devolution of the Parlia- mentary power to the Colonial kegislature As is almost inevitable when a 111811 is by Parliament itself, and the powers of struggling for his liberty, and therefors in all Parliament extend through out the King's extradition cases, a great number of points domumonis. And therefore as the King has a technical and otherwise were taken, and prerogative right although we are both strongly of opinion Parliament, he clearly has it also in the casR that the procedure in this case has been of a Parlament with delegated powers defective, and has not been cured, I shall in Parlament of his own creation, in the endeavour to deal fully with all the points Crown colonies, it is not in the exercise of raised, so that as far as is possible these any premogative right of veto, but in the points may be considered as settled for the exercise of his prerogative right of legislation future It is of great importance that that he assents or does not dissent from extradition proceedings should be conductød | legislation with the utmost regularity, not only in the Again it was said that by the words of the Charter, the Lettert l'atent interests of the fugitive criminal, but also of | Colonial the Foreign State which is demanding his originally of 1843, and now of DRM, the rendition.
Sovereign has expressly Junited his rights of The first point argued was that the legislation, beesine he has said that he Ordinance, No 7 of 1889, is ultra meres, ruserves to himself the right to legislate by because it is extra-territorial, in that it Orders in Council on such matter as he hai sanctions the deportation of persons from | put within the power of the Colonul the Colony. There can be no doubt that Legislature to ileal with. This may be so. whether it be regarded from the point of But the charter expressly limits the power of