THE BANK AND ITS COMPRADORE.
Judgment Delivered *als Moratuz: Defendants Win.
In the action arising out of the
THE HONGKONG TELEGRAPH, WEDNESDAY, MAY 21, -1918.
and the sale under it was`ulira to scoure the compradore it is vires under Ordinance 2 of 1888 sanctioned by the saving words at | except as security for such sums the beginning of the section
of money, if any, as were actually "Except for the
purposes And bous fide due from the aforesaid." Compradore to the Bank prior to the date of the morigage.
(2) the Bank are not entitled
occurring after
I will now deal briofly with the relativo positions taken up, stating shortly the construction which I
Notice
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affairs of the ex-compradore of the to charge property with place upon the section as a whole. The Queen's Road Central Co.
Hongkong and Shanghai Banking defalcations
Firetly as to the defendants'
for the purpose aforesaid" they contend that the purposes referred
In regard to this point the plain- tiff relied on paragraph of the are those set out in the pre- Statement of Claim in which beamble of the Ordinance and in
Bection 4, i.e. carrying on the;
ers, conditions and restrictions ultra
One Lau Pen Chiu was engag
ed by the defendant company aa
was required to find further secur- | corporation,
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B
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mortgage, or other liean or charge" ANOTHER EMBEZZLE- WM. POWELL,
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His Worship: Remanded until 10a.m. on the 28th, bail in 85,000 cash
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Corporation, judgment was given the second mortgage 10 the construction of the words "except this morning in the Supreme plaintiff of which they had notice. Court, by the Chief Justice, Sir William Reos Davioa K.C., sitting in Original Jurisdiction. Lan E. Sam was the plaintiff and the alleges that the defendants had business of banking". The plain- HIGH CLASS TAILORS & EXPERIENCED CUTTERS: Hongkong and Shanghai Banking notice of the second mortgage tiff saya the words have reference Corporation the defendants,
and on paragraph 3 of the State- The claim, which was set out ment of Defence which admitted referred to is in fact also carrying to section 17; the purpose there pader thirteen headings, arora paragraph 5 of the Statement of out of questions as to the validity Claim. Counsel however for the on the business of the Company. 'of a mortgage mndo batwean the defendanta explained that the It seems that the words may Hongkong and Shanghai Banking admission of untice was intended able to the purposes referred to Queen's Load, Central: The Old Supreme Court. Telephone 1450 possibly be regarded as applic Corporation, and Lau Pan Chiu, as a reference only to the notice in both sections although I am in- Be part of security on taking up given by leter of 2nd October clined to read them in connection the compradoreship.
1012 from the Plaintiff shortly Mr. F. C. Jenkin, just acted by prior To the sale and with the foregoing section 17 but mortgage, or other lien or charge"
not Mr. Peavis, of Meara Wilkinsou to any ice at the time of owing to the view which I take of for such already exists as I have and Grist, appeared for the the making of the second most this point it is not material to ferred to.
the defendants' contention on said in the preceding words re- plaintiff, and Mossra H. E. Sharp gage. Da the faith of this decide. Now it is proved by K.C. and M, W. Slade K. O., repreeonention by Counsel,
I have come to the conclusion American Arrested in Hongkong instructed by Mr H. J. Godgo, of who drafted the pleading, I
*Last Night. ile evidence of Mr. Barlow, the that the defendants' contention Mesare Johnson, Stokesand Master permitted the defence to bo Sub-Manager of the Bank, and under this heading is right for the defence.
amendest sl this point was then that it is customary for Banks in intended to authorise a form of ephs, was arrested in Hongkong also by Mr. Gedge, its solicitor, that the Legislative clearly Following is the text of the aecessarily not proceeded with Hongkong to employ a compra-89curity other than that given last night on a charge of misap judgment:
There was a farther point taken In this action the plantillas to the defendants' non-liability dore and to secure him by mort for moneys previously due. The proprinting $1,000, monies of claims a declaration that to refund certain of the monies, age of leasehold property as in words in issue are however not Messrs Michael and Company, certain mortgage takon
Cebu. by This point als was eventually this case, and if I understand the wholly unambiguous and cer- the defendant company from dropped after defendanta' evid defendants' contention correctly tainly would admit of more Mr Moore, of Messrs Johnson their former Compradore is ence had been taken and the it is that the preliminary saving lacidity. The word "or" before Stokes and Master, prosecuted.
The defendant was brought ultra vires and void, and the con- liability of the receiving shroff so words in section 20 apart alto the words "for which any person sequential remedies are asked for as to makes the Compradore liable gether from the enabling words, may have rendered himself liable" before Mr C. D. Melbourne, in respect of the sales of property had been provad to the satisfac-
in the latter part of the section is I think in any event disjunc-st the Police Court, this morning, comprised within the mortgage
tion of the plaintiff's Counsel, or preserve an inherent right in the tive but the meaning of the section and pleaded not guilty when sold under the power of sales. at any so far as to cause Bank to take security from its would have been clearer if the charged
The defendant Company wore him not, pursue the joint,
compradore for the purpose of word "either" had been inserted Mr. Moore, in asking for, a incorporated under Ordinance 2 The case is therefore limited
of carrying on the business of the before the word "actually" in the remand, pointed out that the de- of 1866 which sets out the pow-to the single issue, is the mortgage section 4. I am unable to find the words in question for which steamer last night, the police Bank within the meaning of previous line. In my opinion fendant was found on board a Vires the Ordinanes? the'r incorporation. The frots And to an alternative defence anything in the Ordinance any person may have rendered finding that he had booked a are shortly as follows:-
raised by the defendants that in which justifies such con- himself liable" are not restricted to first class passage to Singapore the event of the mortgage being struction and I am unable moneys previously due; to so re-
under an assumed name. He ultra vires, which they deny, it to assent to it. The taking strict them would render their asked for very heavy bail to be Compradore in March 1906 is valid between the partics and by the Banks of mortgage security meaning superfluous. In my opin-fixed as large amounts of money and gave a cash sauity for the these claiming through them. of real estate for the purpose of ion they cover such a mortgage proper performance of his duties A number of authorities were
its business is clearly a matter forse the one in question and it is
His Worship-Can you get of $62,000; there were as a fact cited in support of well establish. express statutory sanction in the not vltra vires. I may add that other mortgage s.corities given ed law that where a Corporation fact expressly dealt with in sec- the words does
Act of Incorporation and it is in placing such a construction on to secure his courluct, and on the is created by Statuts its powersion 20.
violate not 12th March of that year heexecuted are limited and circumscribed by
Now section 17 em- the object of the Ordinance which an Agreement with certaiu sure the statute creating it and extend powers the Company to purchase is the legitimate carrying on of ties for the proper discharge of his go further than is expressly stated and to hold lands, houses and Bank business without resort to dytise and that of the Chinese therein or is necessarily and pro- on its business, and section 20
offices for the purpose of carrying speculative purposes. staff and for any defalcations that parly required for the carrying might arise. In June 1910 be into effect the purposes of its in-/prohibits" except for the purposes the plaintiff relied on the caes of cash or personal bond and surety? |
On the question of constraction nforeesid (ie. the purchase of the National Bank of Australia v ity and gave a mortgage to the| The question therefore is whe-lands, houses and offices for the Cherry 3.P. . Appeal Cases 300, Bank of certain leasehold proper-ther the purposes for which the purpose of carrying on the Bank's which was a case of an equitable the case. ty to secure
a further sum mortgage was given by the Com Company's capital in the purchase overdraft to a Bank by one of its mortgage given in respect of an of some $22,500. The mortgage pradore to the Bank were express- charged the pro party in favourly or impliedly authorised by the of other lands there ie I of the defendant Bank for Ordinance, and this turns on the think no further significance at purpose of securing the proper construction of section 20. taching to the words "except
Per 6.8. Prinz Sigismund, sailed Flannel. -due fulfilment by the Comprare The plaintiff contends that the
for the purposes aforesaid
ed the Bank contains similar on 17th inst., for Manila, &c.:— and his staff of his pad their mortgaged security which the than appears literally in the
powera to those contained in Alonco. D. A.
Luddecke, Mise several duties, obligations, rea- Bank is authorised to take undersation itself and they have no section 20 of our Ordinance and Beck, G.
H. ponsibilities and liabilities under the enabling words in the second bearing, in my opinion on the anthoriged
Becker, A. eecurity to bo
Ossorio, J. J. the Agreement of 12th March part of the section is limited to subsequent enabling words in the taken
Bohn, H.
Overbeck, W.- debt bond any 1906", to which I have already moneys" actually and bona fide that the words "or for which any previously" but then appear the Eckhuson, L.
section, and on their contention de incurred or
Buranck, Jr., I. Pas, A.. come under Bultgeno, Sister Podow, B. alluded, and the several matter previously due to the Company Contained in the said Agreement and the words following or for person may have rendered himself words and not in anticipation Fabry, Sister
Bohibbusch, Sis-
ter and alɛ for the purpose of ou-which say person may have read-liable" gave at the date of the
or expectation of such security." Freppe, O. uring the payment to the Bank ered himself liable to the Com-mortgage a right in the compra- No such words are contained in Hovgeven, J. of ali asms of money which the pany are restricted to liabilities dore to create a liability in futuro, section 20 of our, Ordinance and Huge, B. Bank may lawfully claim to be due in respect of money previously Now I think it is clear that the they were inserted apparently to Binbrest, F. in reapset of the severalduties and due, and that therefore the mort section in brief empowers the prohibit eccurity in respect of Hagedorn obligations contained in the said gage given by the compradore in company.
future liabilities and that case Agreement of 12th March 1906." respect of auy future liability is (1) to take lands in payment of appears to be clearly distinguish "The mortgage contained the usual ulica vires. He further contends debt bona fide proviously due able from the present one. Mower of sale and according to the that the concluding words in the (2) to take a mortgage of real defendants' evidence is the usual section empowering the Bank to and personal property as the section which authorised the As to the concluding worda in fort of mortgaged recurity given hold lands for such a " reasonable security for moneys (a) bona Company to hold lands at such by the Compradore to a bank in time." as may ha necessary for
fide previously, due (b) or reasonable times Hongkong or in the Far East. In selling or converting thesame into for which any person may necessary to sell, I have stated AB may be November1010 the Compradore money are consistent with the
have rendered himself liable that the defendants conlend that Lan Pan Chiq executed a second torms of the mortgage by the com- to the Bank. mortgage of the same property to prudore which may continue in-fagree with Mr. Sharp that the by the Company in payment of the words apply to lands taken theplaintiff for the sum of $21,definitely, ie. with the period of Legislature must have intended previous debt and that the con- C00, the second. mortgage ervice of the compradore. The to discriminate between the two atruction placed on the words recited fully the prior mort defendante deny that the words forms of security.
for which any person may have! gage to the Buk,
Now Mr. Jenkin contended that of Claim which associate the in paragraph 2 of the Statement In September 1912 the comreadcred himself liable to the the words "for which any person words with lande secured by pradore Lau Pan Chiu absconded Company" are to be construed as may haverendered himself liable mortgage is erroneous. This view THEpartnership hitherto exist from the Colony, being in de-alleged and say that they relate would relate to security given by appears to be well founded for ing between the undersign- fault to the Bank for some $160,- to a mortgage as security for a gasrautor, ie, by any person the words "lands, houses and other ed carrying on business at No. 18 003. The Bank discovering the moneys for which any person may other than the debtor himself real and personal property" are Queen's Road Central, Victoria in several frauds committed by the have at the date of the mortgage provided that the security is only used, and when theso "psissima Cigar and Cigarette Store has thisColony, as the Turco-Filipino compradore paid the sums owing rendered himself liable in futuro for debts previously due. But verbo" are last named in the section this day been dissolved by mutual to the pustomers concerned and to the Bank, and that the Agree power is already given to take they occur in relation to laude consent and Mr. Hippokrate in December 1912 sold the pro- ment by the compradore which mortgage in respect of moneys taken in payment of previous deb Dedeoglou will in future carry on party comprised in the mortgage rendered him liable to the Bank proviously dao and there is Farthermore the power to hold the said business under the same under the power of sale. The for moneys which might become nothing in the section which re- lands for such reasonable times style on his own account. Bank had received notice of the due thereunder in certain circum- quires the mortgage security to as may be necessary for selling Dated the 20th day of May, second mortgage in October stances from himself or the be given by the principal debtor could not I think be intended to 1912, some two months before Chinese and under him which or to prevent it being guarantood apply to lands held on mortgage the sale. The plaintiff on hearing Agreement was subsequently om- by a third party, so the words as the power of sale does not of the sale instituted these pro-bodied in the mortgage to the "or for which any person may arise until default has been made, ceedings and it was agreed be. Biok comes within the enabling have rendered himself liable tween the parties to the action words to which I have referred.
Boing of opinion that the mort would appear to bo superflaous if that the sale should be completed As to the concluding worda in limited as Mr Jenkin suggests toge is not vltra vires it becomes and the proceeds of the sale the section the defendants aver moneya previously due as they unnecessary for me to determine NOTIO is hereby given that Call orders for the purchase should be held by the defendant that they apply to the lands taken give no further power than that the alternative question of its of Cigars, Tobacco and/or Olgar Company until all matters in die by the Company in payment of conferred by the words immedi those claiming through them. I and Cigarette Store of No-18, validity between the parties and ettes by the Turco-Filipino Cigar pate in this action should be previous debt and have no ap-ately preceding them in this sec decided
plication in the oss of land section. Furthermore if the words give judgment for the defendants Queen's Road Central, should be The three points originally taken ured by mortgage.
in question have relation to with costs, s
presented to the undersigned for by the plaintiff at the trial were The defendants further contend guarantor the money guaranteed A point as to costa raised by payout on or before, the 26th Dated the 20th day of May, (1) the taking of the mortgage abling words of section 20 would contention in respect of money was adjourned for argument in
1013. from the Compradore by the Bank otherwise prohibit the mortgage dus and the power to take any chambers,
Mr Mcore:-I simply want the bail to be such as will make sure of his coming back. It is oither
So firmly woven that shrinkage is reduced to a His Worship:Yes.
Minimum, yet soft to the touch and of great strength Sergeant Cookle bad charge of of fibre-good looking, and honest for lasting service “Light-Weight Zephyr" embodies the Shirt-Wear Qualities most generally desired, and is the choice of stand for future advances, The PASSENGERS DEPARTED. men of taste as a change from, or alternative to, Australian Act which incorporat
the
that
22
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31
customers which was allowed to
for
Miss
Kleemer; Garcea, Mrs. M.
L1
T. de Kleumechmidt,
A. Lorks, P. I.
Schultze, Mr. &
Mrs. C. Scharban, H. Trail, N. D. Taylor, A. Vesque, V. "Le Werscharesk,
8. Wahler, Consul.
& Mrs. R. Waeder, F. Wust, O.
To-day's Advertisements.
1913:
NOTICE
H. DEDEOGLOU," W. R. JUSTER.
NOTICE.
LIGHT-WEIGHT ZEPHYR.
THE DISTILLERS' COMPANY'S DRY AND OLD TOM LONDON GINS
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that even assuming that the en- would be according to plaintiff's an amendment of the defence day of May, 198 GANDE, PRICE & CO. LTD.
H. DEDEOGLOU,
WINE MERCHANTS,"
Tel. No. 185.
0, Quer's Bad Central, Hongko