September 13, 1909.]
4
SUPREME COURT.
Thursday, September, 9th.
IN APPELLATE Jurisdiction.
BEFORE, THE FULL COURT.
LEAVE TO APPEAL GRANTED.
Mr. M. W. Slade, who was instructed by Mr. P. M.Hodgson (of Messrs. Ewens and Harston), moved on behalf of the appellant for leave to appeal to the Privy Council against the decision of the Full Court in the action between S. J. David and Co. and Mr. A. J. David, and Chan Ut Chiu. The respondents were repre- sented by Mr. C.. G! Alabaster, who was instructed by Mr. A. Jackson (of Messrs. Johnson, Stokes and Master).
Mr. Slade, in making the application, said the usual steps had been taken, and leave had been applied for on petition to the Court as directed by the rules.
Mr. Alabaster objected to that part of the prayer which asked for a stay of execution.
The Chief Justice-You haveho objection as to leave ?
Mr. Alabaster - No.
*
The Chief Justice Then we'll make the
usual order.
Mr. Alabaster-In paragraph 1 of the prayer they ask for a stay of execution.
The Chief Justice-There is a regular practice
q with regard to that.
Mr. Alabaster-The respondents are willing to give the usual undertaking to return the costs in the event of the appellants being
muccessful.
Mr. Slade-It is all laid down in the rules. If they give security, they are entitled to have the money paid.
The Court made the usual order that execution should go on security being given.
IN BANKRUPTCY JURISDICTION.
BEFORE HIS HONOUR SIR FRANCIS PIGCTT (CHIEF JUSTICE).
A SUSPENDED DISCHARGE.
Be Long Hing and Co. This was an ap: plication for the discharge of the bankrupt firm.
Mr. Fletcher, the Official Receiver, stated
that a receiving order in this case was made on April 11th, 1907. There were three partners in the firm, one of whom died in 1906. At the end of the same year another partner went off to Canton, and the debtor, Hung Mak Hol, appear- ed in the bankruptcy. Up till 1905 the firm had made an annual profit of about $1,300. Then one of the partners died, and it was found that he had an overdraft of $4,000. The other partner, who went to Canton, had an overdraft of $3,000. The result was that the creditors
pressed the firm, and Hung Mak Hoi could not meet his liabilities. Mr. Fletcher suggested that he should be suspended for a short time.
Mr. F. X. d'Almadae Castro (of Messrs. Almada and Smith) suggested that the term of suspension should be three months.
The Official Receiver agreed, and remarked that the firm had paid only an eight per cent. dividend.
His Lordship suspended the debtor's discharge for three months.
THE VALUE OF SHARES.
Re Chiu Yat Kai. This was a debtor's peti- tion for discharge.
~
Mr. P. W. Goldring (of Messrs. Goldring, Barlow and Morrell), who appeared for the debtor, stated that the assets, as shown by affid avit, were. $3,300, consisting of shares in various shops, while liabilities amounted to $5,000 odd.
The Official Receiver stated that, the only assets were shares in shops, which were always a source of difficulty to realise. He had written to the largest shop in which the debtor said he was interested, and in which he said he had a $2,500 share, and asked the partners to corrobor- ate the debtor's statement. He received a reply stating that the debtor's share was valued at $1,000. Judgment had been given against the debtor in a summary jurisdiction action only the day before, and there was another action pending.
CHINA OVERLAND TRADE REPORT.
on
Mr. Goldring explained that in the action mentioned there was a partnership agreement which provided for the purchase of a dissenting partner's share in the event of any dispute. His Lordship had practically refused to make an
receiver order for a
those grounds. As long as he disclosed the assets, his Lordship had no option but to make the order. Such an order would place a great deal of work on the Official Receiver, but the bankruptcy laws were framed for people in difficulties such as the debtor was.
The Official Receiver stated that the firm admitted the value of the debtor's share was $1,000, but they claimed rather more than $1,000, as a set-off against that value!
His Lordship asked to be shown the papers in connection with the case in chambers, and adjourned the hearing.
APPLICATION FOR DISCHARGE.
Re Herbert Stevens.
FRIENDS IN NEED..
Re C. M. Barradas. The Official Receiver mentioned that this was quite a small case. Some friends of the debtor had come forward and advanced enough money to pay a composition of 15 per cent. He thought it was to the benefit of the creditors generally that the Court should approve of the scheme.
His Lordship-Does he apply for his discharge P
The Official Receiver-The composition being accepted, he is automatically discharged. His Lordship approved the scheme.
A DEBTOR ARRESTED.
Re the Lun Yik firm, Lai Wai Tong, a partner in this firm, was called for public ex- amination.
Mr. H. L. Dennys (of Messrs. Dennys and Bowley) represented one of the alleged partners, Sự To Kar Chi, and Mr. J. H. Gardiner ra presented certain creditors: - *
| Lai Wai Tong said he had a $195 share in the Lun Yik firm. He had been a partner for about four years, and lived on the premises. The Lun Yik firm had godowns at 6, 7 and 9 Lai On Lane, and witness knew the man who was in charge. He did not know that the goods in these godowns were insured for about $45,000. In September last there was a fire at No. 7, Lai On Lane, but witness could not give a rough estimate of the value of the goods in the godowns at that time. Witness knew nothing about the 14,000 paid by the in- surance companies.
The Official Receiver asked that the witness should be arrested. for an offence under the Ordinance. He proposed to call a witness to prove that the debtor was concerned in the the bankruptcy. removal of certain goods from the shop before
Mr. F. P. Hett (of Messrs. Brutton and Hett) made the application on behalf of the debtor. The Official Receiver made a report on July 24th, 1908, and also a supplementary report on September 1st this year. His Lordship would see that the Official Receiver in his report made certain allegations against the debtor which he said were proved or justified by the statements made by the debtor, or documents in his possession. With regard to one of debtor had not paid 50 per cent., but all the the statements, it was perfectly clear that the
other allegations made by the Official Receiver were denied. Mr. Hott thought it was clear un- that his Lordship could not make an conditional discharge, but, if granted, he asked period. His client was perfectly ready, if his that it should be suspended for a very short Lordship thought it necessary, to meet the allegations made in the Official Receiver's report. One of the allegations was that the debtor carried on trade by means fictitious capital. That was denied, and they of were prepared to prove that the capital was paid into the bank on the firm's account. The Official Receiver further stated that the debtor continued to trade, knowing himself to be insolvent. This was a very unfortunate case. One of the part ners in the firm died, and Mr. Stevens was left to face the music. The branch of the firm în
had to go to pay debts in Shanghai. There was Hongkong was doing well, but the profits here another allegation that Mr. Stevens had not assisted in the way he should have done since he had sent for Lai Hoi Ming, but the latter the bankruptcy.
Mr. WakemanThat is not an offence. Mr. Hett-Then I will not refer to it. I have letters here speaking in the most flattering terms of Mr. Stevens, and asking for his dis- charge as soon as possible.
Mr. Wakeman-All my remarks are con- tained in my reports. I think this is a very suspend the discharge for two years. bad case, and I would ask your Lordship to
His Lordship intimated that he would go through the papers and consider the matter.
· SPECULATION AND FAILURE. Re Sho Yut Sang, alias Sho Sam. This was an application by the debtor for discharge.
Sho Yat Sang was called to the witness stand, and examined by Mr. Fletcher:
Your statement of affairs shows your liability to be something like $23,000. That is all in re- spect of money borrowed, is it not?-Yes.
How did you get credit for that large amount when you had no assets? Because the shops were there.
¡
The people who lent you money thought you were a wealthy man because you had certain landed property?—Yes.
The Official Receiver said this was a case in which the debtor's sole business had been speculation in landed property. He kept on buying and selling again. Land values declined, and the result was that he filed his own petition. There would be no dividend.
His Lordship said he would suspend the discharge for two years.
The Official Receiver pointed out that the bankruptcy procedure had been abused in this instance. The debtor had been living on other people's money, and the speaker did not see why he should be allowed to go scot free..
His Lordship made an order that the debtor should show cause why he should not be im- prisoned.
His Lordship-I must have something to go проп.
Leung Wai deposed to being a coolie in the the removal of a quantity of ginger from the employ of the Lun Yik firm. He remembered
firm. The ginger was removed on the instruc- tions of the last witness.
The Official Receiver asked for an order to seize this ginger pending any claim. It was worth between $6,000 and $7,000.
His Lordship made the order. Sz To Kam Chi denied being a partner in the debtor firm. He understood that Lai Hoi Ming was a partner.
The Official Receiver informed the Court that
had refused to call on him. After seeing a representative of the firm of Messrs. Deacon, Looker and Deacon, who were acting for Lai Hoi Ming, and being informed that Lai still declined, to see him, he issued a subpoena. Before this. was served, however, Lai left for Canton Mr. Fletcher asked that this person should be regarded as a partner until he proved to the contrary. Either that or the pawnshop which he owned should be seized. The whole thing was a swindle from beginning to end. The partners insured their shop, there were practically no goods there, there was a fire, and Mr. the insurance companies paid up so much. Lai's name appeared in the partnership book, and the Official Receiver thought that the proof that he was a partner was sufficient to allow his property to be seized as one of the debtors.
His Lordship-There is quite enough evidence for me to act on, but I would like to know under which section I am going to act.
fied I will act without any order.
The Official Receiver - If the Conrt is satis-
His Lordship-Would'nt it be better first to issue a warrant ?
The Official Receiver-I should like a war-ą rant, certainly. But the point is whether, technically, he knows about the subpoena.
His Lordship-You want me to find that he is a partner; now, I wonder how I can do that?
The Official Receiver - We might call upon him to show cause why his property should not be seized on account of his being a partner in
the firm.
Bis Lordship-I think that would be effective. I want to be careful, because they will challenge it.
Mr, Dennys called the attention of the Court to sub-section 2 of section 78 of the Bankruptcy Ordinance.
His Lordship made a formal order for sub- stituted service.