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the household expenses of the plaintiff and had paid solely for the maintenance and education of Yun Ah Mui. Mr. Otto Kong Sing appeared for the plaintiff and Mr. Hastings appeared for
• the defendants.
A clerk in the Registrar General's office produced a petition sent in by Li Ting claiming compensation for the death of his wife.
Mr. Hastings pointed out that this was presented before the date of the action.
Mr. Otto Kong Sing said he would produce a letter from Messrs. Jardine Matheson & Co., in answer to the claim he made on July 30th. Evidently they had knowledge of the claim.
Witness, examined as to Chinese marriage customs, said that strictly speaking before the wife was called kitfat neither of the parties should have been previously married. A widow remarrying was a real wife.
Would it be necessary on a man marrying a widow for the widow to be accommodated with a marriage chair ?--In Canton according to mandarin custom, they should have a marriage chair, but in the country the chair is dispensed with.
The coolie contractor who occasionally em-
deceased ployed the
woman estimated her earnings at 89 or $10 a month. Her expouses would amount to $4 or $5 a month.
Mr. E. F. Aucott, shipping clerk in Messrs, Jardine, Matheson & Co., said the first intima- tion his firm had of the claim in question was on July 31st. Cross-examined.-The firm had had other claims. The first one was settled for $1,500 in respect of the damage to the junk and the loss of the owner's wife. It was paid in settlement of all claims.
Mr. Otto Kong Sing said he wished to call evidence of the marriage of plaintiff and the deceased and pointed out that deceased had not been identified except hy name as the wife of Li Ting. Counsel proposed to call evidence to rebut the testimony of one of the witnesses who made inquiries at his office.
Mr. Hastings objected.
Other witnesses having been called. Mr. Hastings submitted that the plaintiff had not made out his case.
Mr. Otto Kong Sing also addressed the court. His Lordship grave judgment for defendants on the simple ground that there had been proof of a previous marriage which had not been annulled.
Thursday, 17th December.
IN ORIGINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR F. PIGGOTT).
FORECLOSURE ACTION.
The Hongkong Fire Insurance Company brought action against Lo Kwong and the Yuen On Insurance Exchange Loan and Godown Co.. Ltd., to have an account taken of what was due to plaintiffs for principal and interest and costs under an indenture of mortgage by which the first defendant assigned to them certain pro- perty in security of the repayment of $50,000 and asked for foreclosure.
Hon. Mr. H, E. Pollock, K.C., instructed by Mr. Atkinson, appeared for the plaintiffs, de- fendants being unrepresented.
Mr. Leefe, secretary of the plaintiff, company. having stated the particulars, his Lordship granted a foreclosure decree.
BANKRUPTCY JURISDICTION.
BEFORE THE CHIEF JUSTICE.
A QUESTION OF DIFFERENTIAL TREATMENT.
Re Ho Shiu Chau, application for approval of a scheme of composition, his Lordship deli- vered judgment as follows: I am asked to sanction a scheme of composition by which it is proposed that sixty per cent. should be paid to the European creditors and twenty-five per cent to the Chinese creditors. If all the Chinese creditors had been present at the meeting and had assented, I suppose I should have had no option but to sanction the scheme, but it was passed only by the statutory majority and four Chinese creditors were not present. If I sanc- tion this the meeting will be bound by it. I do not know of any duty which compels creditors
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THE HONGKONG WEEKLY BRESS AND
[December 21, 1908
to attend these meetings; if they are out of the ↑ that even these are made conclusive evidence of jurisdiction they can only appoint a proxy. It the facts contained in the entries.
Then this is true they do not attend at their own risk, but | certificate says that having read these two they are quite entitled to leave the matter to affidavits the Governor has satisfied himself that the other creditors because they know that the Wei Long Shan was born in the colony and the decision must come up for the approval of the Emperor of China being at amity with the the court. One thing they have a right to Queen of England at that time the Governor expect quality of treatment-but here I am believes him to be a British subject but this is asked to sanction an agreement for differential non sequiter. If the person to whom the treatment. I cannot sanction the scheme which | certificate is given was born in the colony he is a would, had I not to sanction it, be illegal. The British subject. There is no ground for belief or disbelief. The fact is both the instructions requisite statutory majority has not been obtained because the rotes of the Eurpoean creditors of the Secretary of State and the opinion of the present were only given on conilition that they Law Officers have been misconstrued by the drafter of the form annexed to the instructiona. should obtain a special advantage and they are therefore affected by undue prejudice.
The belief, the expression of which is sanctioned. is as to the fact of birth in the colony from which the legal consequence of British nation. ality follows. It is very necessary that such certificates if they are to be issued at all should he drafted with extreme care. The idea on which they were allowed clearly was that nothing po- sitive should be stated and the statement of belief must be limited to the fact of birth in the colony.
Mr. Otto Kong Sing-I appear for the debtor. All the Chinese creditors have agreed.
His Lordship-I can only deal with the facts as they were put before me.
Mr. Otto Kong Sing-All these creditors are in the colony and they have agreed.
His Lordship-It is not on the file; as the scheme is presented to me I cannot possibly find
otherwise.
Mr. Otto Kong Sing-May I come again before your Lordship?
His Lordship-If you like.
The Official Receiver --The opposition, if any, was at first inclined to come from the European creditors and not from the Chinese,
His Lordship-It makes it all the worse. They get all the disadvantage. “
The Official Receiver-They were inclined to oppose the arrangement af. first.
His Lordship-It is an undue preference which I cannot sanction. The whole iden of the Bankruptcy Ordinance is equality.
A DOMICILE PROBLEM,
Re Wei Long Shang er porte Yuen. This was an application for the recission of a receiving order which came before the Court on Monday. Mr. Hastings appeared for the Bank of Taiwan Mr. Atkinson for the petitioning creditor, and Mr. Dennys for the debtor.
concerns
The third was that
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Otherwise the issue of the certificates may be attended with consider- able danger, for I understand that they are sometimes vised by foreign consuls for use in foreign ports and it may well be that, being under the seal of the colony, they would receive a larger measure of credence so far as the fact of birth is concerned than they are entitled to and in law they are open to two objections with regard to the statement of belief in British nationality. In the first place they ignore the possibility or rather probability that some of the recipients may be the unfortunate victims of double nationality. béing Chinese as well as British subjects, and secondly there is a regular process for settling doubts as to nationality provided in the Legitimacy Declara- tion
Act 1858. It is true that that Act probably does not apply to a colony where no divorce jurisdiction as the court has here, but that makes it all the more necessary His Lordship said. A judgment creditor to issue certificates of nationality with the applies to rescind the receiving order. Four greatest caution lest they should be confused grounds of opposition were raised and my
with those issued under that Act. There is also ruling with regard to them will serve as a good another process for quieting doubts as to the illustration of the general praction with regard right of a person to be a British subject provided to oppositions to petitions which I have by section 7 of the Naturalisation Act, sanctioned.
after the It seems clear that in applying the test of payment of costs of the proceedings there will domicile to any case the court has regard to the be no substantial assets for division among the English notions of domicile and therefore. al- creditors." That ground is not good because it though domicle is obviously quite unknown to is a matter which the Official Receiver considers the Chinese we can, from the point of view Chinaman being and usually advises the judge on the application. of English law, talk of a The fourth ground is that the petitioner domiciled in China. Further the ordinary unless & domicile of is in collusion with the debtor and that the rule applies that proceedings are in abuse of the process choice is proved, the domicile of origin time of this of the court. This is also a matter which is that of his father at the
the Official Receiver who in birth. this respect exercises a general surveillance | over bankruptcy proceedings. The first ground is that the debtor was not domiciled in this colony at the date of the presentation of the petition and therefore that the court has no jurisdiction to make a receiving order. And the second was that the debtor has committed no act of bankruptey on which a petition would be founded.
At the first meeting of creditors the debtor made a statement that he was born in Hongkong. I see no reason doubt this. This then makes him a natural born subject of the King. but in order to make this point clear (and it is important point) a certificate of Sir George Bowen. the then governor of colony, dated 21st July. 1884, was referred to. It was given under the seal of the colony and to the fact that having examined two affidavits of birth His Excellency was satisfied that Wei Long Shan, the debtor, was born in the colony and therefore that he believed him to be a British subject. I understand that these certificates are issued in virtue of permissive instructions from the Secretary of State given in August 1862. I have never seen one before and as it was referred to in the argument I must express my opinion on it. In an English port such a certificate is of no value whatever for any legal purpose. It fefers to two affidavits of birth but by whom they were made does not appear. The proper person to issue certificates of birth or to be more precise, sealed and certified copies of entries in his registers, is the Registrar- General, and I am not sure but I do not think
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I may therefore at once determine what the debtor's domicile of origin was. The debtor is 53 years old, so that he was born in 1855. The colony was much too young in those days for me to assume that a Chinaman ever deliberately intended to acquire such a permanent home in the colony as is necessary to the acquisition of domicile. The father's domicile was that of China at the debtor's birth, and I have no evidence before me that his father changed his domicile and so his son's domicile before the debtor could acquire a new domicle for himself. the evidence and His Lordship reviewed
On the debtor's statement there can said:
per- be no doubt that he never acquired a an
manent home in Hongkong. This illustrates my belief that hardly any Chinaman who is merely a trader here ever tears himself away root and branch from his family village in China which is what is required to establish a domicile in this colony; the whole idea of a permament with a fixed establishment in Hongkong determination never to return to the ancestral village otherwise than as a visitor seems to me in- consistent with the normal ideas of a Chinaman.
the
Nationality is not domicile, nor domicie nationality. The two things have no relation to one another. Nationality may be evidence of a domicile of origin, but it is not possible to go further than this. There is therefore not the slightest ground for the allegation that the debtor was domiciled in the colony and the order must therefore be rescinded with costs against the petitioning creditor.
Mr. Hastings asked for an order in the terms of the judgment.
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