Mr. SharpIt is not our Enggastion,
||
The President-You are the
only person to put it in this Court,
Mr. Sharp-Oh no, my Lori.
Mr. Sharp, have strongly
put it so. What I say is that
is not the construction which
The President:-No.
!
THE HONGKONG TELEGRAPH, SATURDAY, FEBRUARY
}
Quiside
near the debts
ement.
Sereia. of
!!
conTM
21, 1914.
Mr. Potter, I see, uses the figure Mr Sharp: Or whichever of the lakbe somewhere" Itween the Mr. Sharp-Undoubtedly, my grounds-I don't think my Lorda ciples laid dowa in the cases I they would deal with it would two partners not havingeommand two Of course, that is out of allLord. If a sale as a going concern you will venture to de-you must called your Lordabips, authori- depend on either an arrangemont three lakhe. The excess of assots of the mpital necessary for the proportion to eighteen lakhs, and falls under claar 15, it is clearly look at the nature of the ascata to ties, and I say arguing on these come to with one another in the would ha botwern two and hree: Mr. matter, wo bopsit can Leamicably anywhere near three, and there is bids contemplated must suffer in therefore, puting it in a practie provided that first of all be debts if they are there to the unauthorities what respect
usual extent. The extons theta Shewan would te worse off under divided or the natural divisionsbe further appreciation si co that consequence and let the thing go way, eightesa lakhs
ruột in
must be paid
than ours that would take place one part onlculation was made. 14 would before his eyes and showing it any conceivablo way by the up The President: First of all in a large extent. When a largo their onstruction
merchant applied to the banks for and most important was another ad beling to one partner and the be a considerable amount. Ho to be worth more than the pre-set price.
assets must be realized. vious offere. What I am arguing Mr. Sharp-That what I Mr. Sharp-Well, of cours.vances he took his ressable healing though in similar words, other adhering to to the other, an would have those is this: It is prejudical to the argued.
The assets are worth in the shares contracts showing their in- in which Mr. Shawan would obviously amicable scrangement enormous valuo na his hands and interests of Mr. Shewan, that's all, The President Supposing we neighbourhood of two millions, terests in common contrast-take the loser under their construction. if it come to this point, which we the goodwill. There is no ques- I am getting really upon my third adopt your construction of article giving a hprothetical figure. The them aaronlisable ebaroa, 11 That is to eny the goodwill was hope it won't, would bs most re- tion it is valuable to each one.
Another question is Mr. She- and last point. I am not sure 15, what becomes of the goodwill? Awasthe tangible, ultimately not good security for a loan not sold-in answer to your ques aecoable,
1na Chief Justice: What about wan's position upon current con that it would not be more con. I, foreshadowed that question realizable assets are worth in of as much as seventy live per- tion-then Mr. Shewan, and when
tracts. Elere I think there is some venient to take it to-morrow. yesterday.
the neighbourhood of two millions. cent, the usual percentages we say Mr. Shewan, I mean of the order of the Court?
The President: You would dis- misapprehension. Evidently your There is no question of me not
Mr. Sharp-My answer is very If it is clearer in your Lordships are accustomed to ja this Court, course bob, Mr. Shewan would be finishing I will finish in half an hort. Upon my argumont we mind, consider the ones of a two-thirds and three-quarters. entitled to carry on the ente mise the appeal my Lord, no fur Lordships consider that aronlisa- ticn would mean an instant sale hour..
say goodwill is not included stranger. He would give pre- Let un naeume, a resklesanasump businees without any reatiiotion ther order is wanted.
The Chief Jostice: No order to-morrow. Of course, a moment's The President very well. Our first answer to your Lordsumably somewhere in the neigh- tion anyone went to bid for this, whatever-there is a semblance
restriction which I made, simply a matter of arrang thought will show that such a The Court then adjsuined, ship's question is, as clause 15 bourhood of two millions to get practically cash on the table of
FO secuted as it is in will refer to in A moment
thing is impossiblo. A realisation The hearing was resumed on does not include goodwill I shall theso argets. It is to be presumed for
The President:-Either part- Mr. Bharp. It would throw the would essentially take time in a Friday.
show you what would happen to that if he was bidding and did somewhat the same position, could
partaera bick on the true con-limited market, It must be a The President: Mr. Sharp, it. My second answer is, if less, Mr. Tomes would get the not get more thin seventy-five ner?
is. SherpYes, I don't mein siruction; you must be taken to reasonable time-how I am not before we go any furtuor I want did include goodwill it is im- price up because he knows the per-cent at the
$150,000. Now Mr. Sheron has Mr. Shiwan to the exclusion of have found the construction in prepared to say. Probably at least to understand your position about material for the purposes of the value of the assets. this seventeen or eighteen lakhs, argument whether your Lordship Mr. Sharp: So it is quito clear, alrendy produced $185.000 cash Mr. Tomes-oither partner our favour. I havo assumed you a year in the limited market here. I cannot see myself that the value hold that cluase 15, the sale sarmthing substantial as $1,700, fra Lis pesket, supposing he carry on the business without being with us it would throw with these enormous blocks of of the liabilitica is any more than going...concern, would n000 was qualified to realise this, could get $1,500.00 from the any restrictions, cars under them back to make an arrangem- shares in the various Companies part of the matters that would be be in compliance with the terms at any rate the value, the market bank on $180,000 we had laid the old fim rame. There is sent under 15 to make au ar which this firm holds. So if it would came to an actual liquidation it taken into consideration in 5xig And
tbat applies whother price of these shares, something on the table, he could therefore restriction which hardly mounts rangement and that the upset price or the actual vary air Lordships hold goodwill or ly beyond $1,700,000. It produce $1,600,000. That does to one that has been imposed in not be any part of your order. would take a reasonable time. orenses meel as this. On the other You would diamias the appeal, Then there is the necessary notice of this partnership business. I not. What happens to it is part not evidence, not disputed. not get mean supposing you say the oigh of what I addressed to your Lord something like, three lakhs this anything of the surplus on hand if there is a le as a going but as regards clause 16 we would which would have in be given as teen laklis-
ships yesterday morning. My year in the balance-sheet shown actual realisation on to-day's concert, I think either may carry to thrown back to an arrangam-to the termination of any general
ninsgorshipe, and as I say, sup. Mr. Sharp-That is roughly. friend Mr. Potter understood your at the beginning of the year. We market prices. I don't say on a similar business, but can eat with the partners.
The President: Supposing posing a liquidation does take The President you mux Lordship to way the upset price have it admitted asEBIS worth on there, is going to be a further not do it in the name of the old. gest that would be payment for he had in mind was five lakhs. the present market prica close an appreciation-an actual sale of firm beanse the gedwill in you don't come to an arrange- place, such big blooks of shares As this could not be sold to- what?
two millions and stranger the shares on to-day's market cluded in the old fim has been ment then?
M. Sharp: I hope it will not morrow. In liquidations they Mr. Sharp- en only say, Mr. Sharpen I did not would have to give somewhere in prices would reali: 3 two million sold. He cannot trade under the
always take a reasonable time for my Lord, that was the upset price misunderstand you.
the neighbourhood of that amount ex hypothesi, which Mr. Showan old firm name in any way that come to that.
The President: We must un- the realisation of the assets. That mentioned in Chambers, I have The President arrived at and then that money, proceeds of could not produce if he did bar in oalculated to give the im never suggested any upset price that sum of five Lakhs is order the sale would bave to be devoted row to make this bid. There are pression he is the old firm derstand what will happen if no would obviate all question of
He cannot arcangemont is come to..
damages to contract. is within your Lordships' jarist show that eighteen lakhs was
to the actual payment of debts, two-thirds or thre quatiers at the when he is not.
Mr. Sharp do not think
The President:In the cise I diction at all, I strongly take the fan absurd figure. I am express not giving an indemnity or an very side. It de aan't even canvas the customers of the old point that it is not, t
ing no-
undertaking, but actu-l payment roach the debts to pay nothing off m-a very important restriction it is conceivable no arrangement looked at yesterday it might take The President:-It seem to me Mr. Sharp-I am taking your of debts, and if one partner being left over to divido. The in a cars like this that is in the would eventuate. We hope there eighteen months.
Mr. Sharp-I should be very that the suggestion is entirely Lardship to mean five lakhe, plus was taking over theis would be no sale ut to day'e market price event of the goodwill being sold, would be an arrangement. wide of the mark.
the debts, as a conceivable' upɛct question of the debts. We would realise ex hypothesi two and he would be carrying on the It has bean said that the go-po surprised if such a liquidation price.
refer to the other clause millions, and my Lords you will business under a variety of res-will would be left over to the as this could be put through in The President: No, I say, the which we say did not specif. racollect the position of Mr. trictions dealt with in the case parlaars in this way. I would eighteen months. There are our upset price would be something cally relate to a dissolution by Shewan-1 should put the pos- This matter is dealt with by refer your Lordships to the case rent contracts for work which I approaching the value of the notice, but which is a clear linn of Mr. Tomes in the same Lindley, shortly and clearly, on of Bucall and Wilde, 1900, I understand would take a
When I say business as a going concern. and amicable arrangement refer way if I had to do-Their position pages 503 and 500 of the present Chancery 551, a Court of Appelsiderable time. It was made in Chart re, not by Mr. Sharp-But your Lord-red to in cinges 15 and would identical. The position is this edition. And I will give your caED, which shows that you cannot realisation I don't mean a forced ns, I was only quoting it. ship bas missed a very important have a similar basis in other oc- He has an sctual vested ight Lordship other references-page expe the late partner to liability.ale; I mean what is commonly The decision called a liquidation, and a realisa- The PresidentMy learned item-debts and liabilities. In casions of retirement. It is vested on the dissolution if not 9, e cond edition the marginal (Cass quoted). brother tells me it was a matter the case of one portuer taking over quite clear the value would be before, an actual vested right note ie carrying on business sell-shows that as no arrangement had tion which is consistent with a
g"-that is if you direct a ele tem mide with regard to the fair realisation of the sesals." which came up at the end, but the Jiabilities they are not paid already considered in the arrange in the abere of the surplus, aning'
The President:-As rogarde under any circumstances it seems for he takes them over and Dent referred to there. The first actual vested right. and as 88 & going concern. Me. Shewon firm name and goodwill, the to me a very impracticable way of gives the retiring partner an in- eum is the arrangement specified I put it to your Lordships yester would be in a very different pos. Court aid they were entitled to new matters, either party would They are be entitled to trade? They would dealing with the upset price, if demnity. There is this fundam in detail with regard to the dis dy he not only is a vested ition in trying on the business use this fira usme. we have power to fix it.
ental difference bow in the gale solution in the five preceding right, the same thing, but in law than the position he wor'd be in tenants in common of the assets, not be stopped?
to actually a lieu on the dissolution if he will remained entitled to so Each partner is entitled Mr. Sharp-Oh no, it woʻild of the whole concesa and the tak paragraphs. Now under
the AsLets and be open to them immediately to ing over by one parter on r-clause would the debts a paid which is regarde by Lindley as much of the goodwill as he enjoy
do it in such a way as not to io-start as the old firm and enter. irement that if the business is at all if clause 15 permits of a lien on the whole of the uitsotained. would guide the Court did it sold as a going concern the price enle as a going concin; there on the dissolution for the payment Mr. Potter: Page 477, my volve his late partner. There is new contracts. That is if they no other restriction. I would did not involve the late partner. come to fix it. I strongly put would be fist the debts and then must complete realiation of of debts, actual payment of debts, Lord.
the extent of the assets exopt the mits to enable it to be done, po ngement. It is in a dis- Mr. Sharp (after quoting at ve also refer your Lordships to Chut My Lords, I am reminded that I The Chief Justico:-I think it liabilities? By this means you and the assets will suflica to do folution the first and most im authority). It is perfectly clear Inu and Bivans 28 Law Jourdal did not answer a question of your arose in reply to a question of would arrive at it. If one part-it, but if merely the share of one vortant matter to be attended to after a sale az a going concern, Equity, from the point that if the Lordship regarding the upset mine, I said to Mr. Slade Sup- ner is buying the share of the partner is to be put up the pro- But after that, he has alien there- although Mr. Shewan may remain goodwill is sold, Shewan could price. Your Lordships are aware As to of our broad proposition here- posing I arrive at the conclusion other, one partner is taking over ce de will not do. This is one after on the surplus assets for in business in Hongkong as a not use the old firm name. to order a sale as a going concern", these debts which are left out of of the many arguments in favour payment of whatever is due to merchant, he must not ure the the firm name, having regard to that your Lordships cannot make and I asked bim what are your the calculation except so far as of our contention of clause 15. himself, so he has actually a lion old firmn' name, nor ropresent in the suggestion made by Mr. Jus- new contract. proposals, for carrying out the the buying partner would refer to It involves what Falmer calle no on these surplus assets and what any way he is carrying on the tice Burn and the Master of the (Continued on Second Extra) method?'
And he said "It is thom. So Mr. Tomes buying distinction, ia sale sa a going cou- ia due to himself and you could basiness of the old fim, and be Rolls in Barchall's case, I under- no more make an order to pre-must not canvas the old customes stand it is for the partners to necessary to appoint a receiver" from Mr. Showane would not be-cern and ordinary liquidation. and then he made these suggos-gin by paying $1,700,000 for the The Chief Justice: That is judic, that lies, then you can and he is carrying on business consider that. I both choose to
debts, or
I am carry on their proper firm name of it, his the point-liquidation a cording tanke an order which would per unter great restrictions. Mr. Sharp-I am entirely with share of the debts. That clause 15 ia based pretty close judice, in other words, Mr. now dealing with after the bus would to the partner's name- Shewan's vosted rights on thesa inesa is sold Mr. Showan may Tomes or Shewan "late Shewan your Lordships, Naturally, my would be turned over and all ly to the Act. Lords, when I dealt with the the retiring partner would Mr Sharp-1 poin od out pre-sets vested in the dissolution. carry on under these dis-Tomes and Company". They The record in teak logs from question of an upant price I dealt pay is the value of the share interday the distinction between the You cannot make any order to abiliti. I will refer you would be perfectly entitled to do the Siamese forests has been Trego and Hunt which that; I think that is clear upon broken. The previous best log with it on the basis of ir. Sinda's excess of that. So a considerably two. I think it is a long form keep Mr. Shewan from actually to
come from the East Asiatic Com- suggestion as the only basis which small amount of money would going back to bofore the Act. Of getting the money and leaving Mr. Alabaster referred to in Burohall's case.
The Obibf Justice: Shewan pany's forest and was five wah by has been suggested, and I have pass. Take the onse of s stranger, coured your Lordships know the the Judge's Chambers with that his opening and it practically sete satisfied your Lordships that that where we have just the same history of the Act. Sir Frederick money in his pocket. Firat there on the same side of the law. Tomes and Company, No. 1 twenty seven kam. It was one of would not be a proper basis. But position.
l'ollack drafted that bet. That is fure in the suplus ae's he has "Where the goodwill is sold the and No. 2"?
the few logs that have passed the Mr. Sharp om afraid that duty station at Paknampoh with- I argued generally that it was The President: If he is going neither here nor there. I pointed a lien on the ate and you can-te partner seling is not entitled not in your Lordsbips' jurisdiction to take back in cash?
ont the differens between the not deprive him of that lien, to canvas d the like." Trego would not clearly show whether out paying royalty. The unwieldy to fix the upset price at all, and I. Mr. SharpThe first condi- two yesterday. With your Lord-And so I would refer your Lord- and Hunt, I think, it is a House Mr. Shewan or Mr. Tomes was or log floated down on the top of a naked your Lordships' attention tion is that the debts have to be shipa mission I am not going ships to the passage in Lindley of Lords cas, is a apted as the was not liable? But if they a. d rise and went right through Pak- yesterday to the various bassa actually paid. If between pari- back to that point, My Lords I which the President might have leading car on the subjt. The the partner's namo "late Shewan nampeh. which occurred to me se being ners, they may enter into some will take up the throad of Shanghai. I have given 413 judgment was delivered by Lord Tomes and Company" the con- were wired to Bangkok, and the possible for the fixing of this friendly arrangement and the out-my argument where I dropped it Precedents edition. The last Haraubell-1896 Appeal Cases tinuity would be emphasised then manager of the Company, previous being the page 7, House of Lords. Lord and it would be made quite clear apt. Guldberg, soat up a steam figaro, I submit that all the going partner may be content yesterday. I was just beginning edition
eventh edition 387 and 388 others were practically impossible, with whatever security is given. my third pat
Hereche'l lays down the same law that the outgoing partner had launch to take it in obarge. The The Prasilea: When did you of cures as is laid down in departed. Mr. Poster reminds me log was presented to His late cite this?
Lindley (quoted). I need not of another question I have not dealt Majesty, but on being sawn it was Mr. Shorp: I think i did yes-refer your Lordships to the specifie with here, your Lordebips have found to be unsound. terday..
passagoe and the reasons are frequently asked what would hap- The log breaking the record The President: I just want to dealt with in this, my Lord. pen to the goodwill. It is perfectly comes from the Klong Kung turn it up if necessay; just in Lord Macnaughton in very pic clear these aseets would be real forest. This forest is situated in order to make a note.
turesque language firms our ised, hypothetetically fetching the Kampang district and is Mr Sharp.If your Lordships course.
two millions, and each partuer about sixty miles below Rahong. will permit me, in answer 10 your
The President-What page? would remain entitled to oarry on! It was approximately eight wah purpose I was going to say some are actually paid. Therefore and eighty thousand. Someone of Lindley 413. Eighth edition of fem page 25; I will give you eball's case, as the old firm, mere-by cut in two before it could be. question-it is the present edition Mr. Sharp Tam now reading the business as indicated in Bur. by twenty three kam, and had to figure which apparently now is sum must be produced upon a is got to buy. Very well you the edition in Hongkong which the judgments, they are not very ly using some style to show that moved. The two loge were then about $500,000 roughly-it may sale as a going concern which will mast, alow two millions. If ha be a few lakus more or less-is actually pay the debts. That is possesses one hundred and eighty guage I think faidentical, (quoted). Tant is laying down in very They would remain entitled to ft. Gine, and bift. 4hins, wide, you have access to 387. The lan- long (Macnaughton quoted.) the other partner does not remain, respectively 24 and 26 feet long, offered by Mr Showan. A znallar the fatal stumbling block, eam, I think, has been offered by The President -" The thongand he would go to the That is looking at the general picturesque language. I thick carry on the business if they chose and 1ft. 5ine. and 1ft. Gins, in
probank and show he had two mil perty and effects shall be realised lions and the whole matt-r would assets for the Botul payment of the law is just now established. to do so. Mr. Sharp-The difference and the proceeds applied fi at in be arranged in no time. He sets for the payment to himself tion if the business is sold as a each be entitled to are the old firm than 13 inches in thickness fifteen
his lion on the surplus of the Naw my Lorde that is the posi- between the offers is $80,000. | the payment of liabiliting". The would have the use of the money of whatever may be due to him as going concarn over Mr. Shewan's name? Our last offer is $80,0 10 more property and effects we
have during a short time in order to gbare of the surplus a ste. I am head.. That is to say, if your
fest long and less than sixty. admitted in the neighblurhood of clear off the debts,
Mr. Sharp-Cortainly. inches wide. This is to be made than theirs.
obliged to your Lordship for Lordships consider goodwill is The President-That is what up into a dining table. Either The President: You say yours two millions The first thing is Mr. Sharp-May I answer
of the logs will provide planks of is five lakhs and theirs would to get in all the effects, which at that question; it is little diffealt asking me the questions. Now ivoluded in claus 15 and further it comes to ? be $80,000 less 7 So the value of the assets. Then when we have for me to answer all these ques: will finish this morning; we think said, your Lordships are justified goodwill. They would each have logs have been roughly trimmed Mr. bharp-Yes; that is as to the required measurements. The Lord, both my fiead and I consider in spite of all we have the business as a going concern got the assots they will wipe off tions coming in a disconnected our case will close this morning in making the order asked for, a share of the assols and Mr. and squared, and are sound. would probably be somewhere the debta.
we hop 80. I was dealing That would be Mr. Shewan's Shewan would actually got in his There are one or two small de- between the two figures-at any Mr. Saarp:-The debts would
not be wiped off if the continuing tically what I presume would
The President:-That is prae- under my third head yesterday portion in regard to the good-pocket his share of the assets feots but these can be avoided rate in that neighbourhood.
my Lord when your Ird hips will, but it bas on aug-instond of getting nothing at all, when sawing the loge up. The Mr. Sharp: think it would partner purchased the abars of happen.
go into his pocket, tree was discovered by Mr Palmer be a rather reckless assumption the outgoing partner on the basis Mr, Sharp: Your Lordship has adjourned, which was even then gested in the alternative there Tuat would
The President-It would be of the Forest Department in Feb. that the offers would be more of the previos clauses.
put it to mo we have two millions potistouding all that we have is no precedent and no light in r than the valué, *na,
ruary 1913, butowing to the inac- The Pusing Judge-You say that Mr. Showan ought to pay to argued year Erdship should to say the goodwill being uns very little wouldn't it?
you consider you had the power sumed would remain in these two Mr. Sharp-No, my Lord, cessibility of the place where it The President :-It would pro- on a do ss a gring concern be able to tarrow money enable a dire 14 sale as a going ca- partners who unfortunately can- apon the two million basis. It was lying much trouble has been bably be between-somewhere a strangar besto put down in the him to make this bid, and so my corn, your Lordships would not not continue together, but it is was negued as three lakhs before, experienced in getting it to the batoon--four and five lakhs. first instance the amount of the Lord for this re 180n if you are do so having regard to the prin perfectly clear it would, How We do not know the exact figure, Mob Ping.➡(8T) Probably a little more than five debts?
going to make an order on thego
that,
tione.
half
The President: -So far 58 The President-lou say the] The President:-Wait a mo- matters in Chambers Mr Shewan only way in which this can be ment. What in pratice would offered some eir and a half sold as a going concern is by happen really would be this. lakhs $330,000 for the whole somebody coming forward and Supp sing the figures here, two business:
paying the debts?
milions and ́ong hundred and Mr Sharp Less the $150,- Mr. SharpCertainly, if that eighty thousand as. We have 000 difference between the two is to apply ander claurs 15. Look two milliors.
at clause 15. The first require- partnere.
Mr Sharp-Rugbly.
The President:-But for the ment of clause 15 is that the debts)
Mr Tomes.
1.
1.
"
The President-It is a hundred
way.
:
my
A RECORD TEAK LOG.
Those circumstances
thickness. It was His Majesty's
The President:-They would desire to obtain a plank not less