1876-02-21 — Page 4

In this Colony, which may account for the length of the arguments.

SUPPLEMENT. TO THE "CHINA_MAIL," FEBRUARY M, 1876,

ment of a chose in motion did not vest the the file of the Trustees resulted back to the Bende dated in Aprit, did so under pressure under the Ordinance for registration legal property in the Trustees as Bankruptcy date of the earliest of tho Dieds by the defendants. Tam of opinion that he Asurances in this Colony,

With my view We have referred to and considered ell would do in assignees in Bankruptcy, but Now what is a fraudulent proforence did, on without such pressure. It is true on the general questions, it becomes unne- the cases cited which were within our reach that the legal title to sue remained in the The taxis now applied to pases not tainted that Mr Father became partner, and took eessary for me to disons this question, espe The reports of some very important cases. assignor in whose name not their own the with actual fraud. Exley e figli, L. R. 34 over charge under very peculiar viroum- eially since it has been dealt with fally by. are not in the Court Library or even in Trustees were bound at Law to sue. If Ex 247 was a case in which the arranging stanced. He appare to me to have thought Mr Justice Snowded. private libraries in the Colony, For these Pearson v. Pearson goes beyond this Ium debtor gave back yarn for which he had that his rushing into the dangor and becom- nnt of opinion on all these grounds (Bonto we have been obliged trust to marginal unable to explain it, and if it goes beyond given a bill to the defendants at their rol" ing a partner, "ådd taking command here, of them would be sufficient) and on several notes and imperfect summaries in Text this, if it is counter to the current of autho quest, and on their returning to him the bill was the only phréible chance of saving the other facts patent in the evidence, that the Books, of which a deceased most learned rities, I cannot follow it and I must follow he had given for the price (a case of pressure | sinking colloerh. Hie self sderinde must be | two impeached leads, of April Itat aro sa Judgo used to say that they are unreliable authorities which I can understand. I had by defendants on the debtor) Baron aduured the prudence of his not may be agalist the plaintiffs void. an opinion in which I am confirmed by long come to this onnelusion before I was fully Martin there says It (the tranfiction re-inertialed: I must behove that in March, I declare tho invalidity of the eight, Deeds experience.

aware of the decision in ex parte Anderson forred to) is not a dishonest transaction when He thus hocare sole resident partnor | mainly on the ground that they were all It seems to me that as soon as the facte L. R. 8 Eq. 736, in which the Vise Channa there is no reason why the here, he behine aware of the existence of the spontaneous acts by the Debtors. I take and circumstances are clearly ascertained Baron as: Chisi Judge in Bankruptoy die debtor should not pay it (bis debt), it may Deeds executed in February by Mr Albert it to be practically ennseded that as to this case forms no exception to the general tinatly decided that Section 107 of the Bank be void under the statute; but there is no--Heardi. Is in bleg that before he executed, the Deede executed in February then wen rule that the law applicable to them becomes, ruptoy Act 1861 gives the Court of Bank thing in it dishonest or fraudulent the two Deeds of April, that prepared by a spontaneous, I hold the same as to those much less complex, than it at first appeared ruptoy Jurisdiction over deeds registered but for the act of parliament (the Bankrupt Brereton, as well as that prepared by Messrs executed in April. Fyon; if; as, to all; thực to be; indeed as soon as I had satisfied my under Section 194, in other words under our eyAct) it would have been rightly done. Sharp & Toller, he knew of the purport of Deeds the defendants had put pressure on i self as to what the facte ware, I had no Ordinance that this deed is under the Juris And Baron Channell said, "When we speak the Deeds of February, and I must infat the Debtors, having regard to the manifestly, doubt as to what our decision ought to be. diation of the Court in Bankruptcy, that is of fraudulent preference we do not mean that he knew the effect of those Deeds Mr entire confidence of the defendants in Lies, I am of opinion that this case comes more to say that these plaintiffs can anal and anything involving or, meriting blame the Parker must be taken to have known all the Debtors, I am of opinen that no, pressurpas clearly within the rule which avoids fraudu undo previous deeds and not bad in Banke term only signifies that the nos is contrary circumstances as to the affairs of the first could have been put by them except upon lent prefereuegs than even the case of Exley ruptcy. Ex parte Anderson decided in 1870 to the deplored and recognised policy of the known to Mr Albert Heard which I have been entire destruction of faith in the holyanay v. Inglis, L. R. 3 Ex, 247, There the explains the Law fully, and if that case is Bankruptcy law."

fore stated. He knew that all the credits of Augustine Heard & Co, and that, if tha preference was on pressure by the preferred law as I feel assured that. It is, then these It is due to the debtors, members of an given by defendants, had been exhausted, defendants did put pressure on the Debtorss creditor on the debtor; here the preferences plaintiffs are in the same position and have old firm in this Colony, whose respectability and the correspondenes and telegrams show it was occasioned solely by their contents by the debtors were spontaneous. In that the same rights as assignees in Bank has been guaranteed by intimate business (see especially exhibit No. 251, that he falt plating an approach of stoppage of the aase Kelly, C. B., used language which ap- raptoy would be and have in this suit. I relations for many years with Baring Bro- that further struggling to continue the bu-Debtor business, and even under such airs pears to me entirely applicable to this case. had come to this conclusion without fully there and for a shorter period by the less siness was useless, and he know before cumstances the antisipations of the debtura e He said, "It is unnegessary to consider the considering ex parte Anderson, but that case world known but highly respected firm he executed the Debder in April "that al themselves being such as find them to hara Law as it existed in the last century." In-makes such conclusion certain.

Mesare Benecke Bouchay & Co., the "do- though in March, when Mr Albert Heard bean the Deeds would be void as against deed it scoms to me that the observations of I am therefore of opinion that the plain fendants, that the way in which "frauta telt, he Mr Parker said £20,000 ns nebes- these plaintiffs. Elev. Ingus alone would - the Judges in that care and in the eases tiffs are now in a situation entitling them lent preferences" are spoken of by these sary to enable him to carry on the business, justify this conclusion, of La there referred to, especially. Topping to question all deeds and transactions which eminent Judges should be quoted. Kersell 16 C. B. (N. §.) 248, and 93, L. J. would be fraudulent preferences as against. It is due to the debtors also to note that (C. P.) 225 reported in 1964, conclusively the assigunes in Bankruptcy of the Debtors the impeached aots originated in the advice decide the main questions now before us.. if they had been made Bankrupts as fully of the confidential Lawyer of the firm in The plaintiffs by their petition designate as such assignees could do whether such Boston. I feel it however my daty to assert themselves trustees of the estate of A. Heard preferences should be in favor of assenting that, although merchants may prefer one & Condor the provisions of the Bankrupt or dissenting creditors.

creditor to others in due course of business; oy Ordinance 1864.

that this is an only whilst they feel as sured of their own solvency From the time when bankrüptoy looms in the distance, and is present to the merchant's mind as a notsulting a single creditor, improbable event, the merchant ought al- ways to feel that his assets are not his own, but that he is legally and morally merely a trustee of them for rateable distribution among his preditors. Whoever diverts, for the benefit of one ereditor, assets which the law dedicates to all equally, acts not only illegally but wrongly. The sams immutable principles of right and wrong are at the foundation of Low and of morality: -

The main if not the only differencer be The defendante admitted that the deed tween the effect of soution 168 and of seation was duly executed by the trustees and by 188 appears to me to be that whilst under Mr Parker for himself and for his partners, section 183 the Debtors are absolutely die and they agreed to take no objection, to the charged from all debts whatever proveable sufficiency of the powers of Attorney haldin Bankruptay they are under section 168 by him to enable him to execute the deed for all his partners. This disposes of the question whether one partner can be pre- sumed to have been empowered by his part nere to commit an act of Bankruptay by such a deed as the present, as to which doubts might be raised, Bome consonts to the deed were also proved;

The plaintiffs contended that the Defen dants assented to the Dead by the telogram, and by the assent by Mr. Toller, their agent, for them written on the Trust Deed

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nó stolt sum could be obtained.

(3) I am of opinion that whod Mr Parker instructed Mr Brereton and Mr Toller respectively to prepare the two impeached deeds of the 18th April 1876, he did sa in, anticipation of declared insolvency, and because he sutidipstad it. Those Deeds bear date only 6 days before that trust deed dated the 19th which was prepared on his spontaneous instructions without his con-

This is the first time I believe in which any question has been raised in this Court

According to authorities the plaintiffs may successfully impeach preference even if it be on pressure, provided it is fraudulent writhin Section 186 of Ordinance No: 8 of 1804, ees Steami also Section 98 of that Ordinance, if it be Abbotsford "given by way of fraudulent preference? A by the debtors of the defendants.

Casandra Columbian

The question in this case is, are the Deeds Danglas void as being fraudulent preferences 'as Foye

Giangria. against Assignees in Bankraptor for Ipoun hold that the Trustees are to all latents in bon this suit entitled to stand as such nasignees maticos of the debtors.

I am of opinion as follows First, as to the Doeds dated in February executed by Mr Albert Heard.

“We are agreed in the decision, that thereg must be a declaration to the effect that the eight impeached Deeds, are fraudulent prac forbncos, and this Court declares them yold as against the plaintiff, the Trustees under the Trust Deed of April 19th, 1876, and that h all the eight Deeda, and thetitle Deedarelating... to the several properties, must be given up to% the plaintiffs.

Reserve further consideration. We haya. had some hesitation as to the costs,‹. Under- the circumstances of the case, we give costs to either party.

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Indeed the defendants admit (Exhibit No. 1) that as to the Deeds executed by. Mr Albert Heard, they were signed without the knowledge of the defendants, and without any demand or pressure from them, save as may appear from the correspondence set out and referred to in the pleadings and I am clearly of opinion that no demand or pressure appears in any correspondents in or referred Flying Bagie to in the pleadings,

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flischarged only from the debts of assenting creditore, all the remedies of dissenting cre- ditors being unaffected, or only partially affected; and also that whilst the title and estate of the Trustees under section 183 in absolutely unimpeachable their title and estate may be superadded by Bankruptcy on an effectual petition of a dissenting creditor, The Trustees proved compliance with all or even by a Trust deed duly perfected un the provisions of Bention 188 of our Bank-der section 193. With the exceptions it ruptor Ordinanas 1884 except condition No. seome to me that these plaintiffs are Trustees which requires the asssat of a majority in for all purposes (with exceptions-states of number and 3/4ths in value of the oreditors facte-not applicable to the present case, "we The defendants objected that that second need not now speculate on that contingeney" condition had not been complied with, that Erley v. Inglis 247-257, in the same posis it was not proved that a majority in number tion as Assignees in Bankruptays and 3/4the la value of the creditors had in writingassented to the Trust Deed. This objection they were clearly entitled to take,

The plaintiffs were thus put to full proof of compliance with the second condition. However open to question it might have Sue Bramble v. Moss, L.A. 3 C.P. 458 and bean whether a telegram, without dirent Ex parte Rawlins, 92 L. J. Bank. 21. A proof that it was duly authorised in writ- great deal of time was occupied by the ex-ing" to be transmitted, constituted a com amination of witnesses and documents put pliazos with condition 2 of section 188 "in (a) There is no evidence whatever, not even in evidence tending to confirm Mr Parker's writing assent to," it has been treated as evidence on which to hang a suspicion that Hajnathant affidavit that due majorities of creditors in being a suflloient compliance, and it was not Mr Albert Heard when he executed the imag number and value had on the day of regis questioned in this case, I hold that the as- peached Deeds dated in February did no. tration assented to the Deed, and by the ar- sent by these Defendants by telegram was under pressure by the defendants. On the guments thereon. After a long consideration sufficient: den Johnston v. Osanton, 88 Ladecorary Mr Albert Heard exedited the Albatro of the case we thought that the evidence ad- Ex. 76 L.R. 4 Ex. 10768.

Deeds of February spontaneously. He had Amica duced was vague to pravo due compli The Defendants contend that the telegram indeed been advised by the Lawyers of the ance with condition No. 2. We gave the constained two conditions not satisfied by firm in Boston to exeunte Deeds in the forms plaintiffs an opportunity by proving the pre- the facts in evidence. Taking the latter his used to protect Baring Brothers in asse cise amount of the indebtedness of Aug. the proviso first I am of opinion that assent of imminenoy of Bankruptcy, and he availed Heard & Co., and by a nominal list of as to the Deed did not compromiss the securi-himself of the advice spontaneously to pro: Cap Hom sonting creditors making up the due amounts ties of the Defendants. The Trust Deed left test these defendants. af eraditora in number and ralus to satisfy their title and right of independent aotion us that this 2nd condition had been som just where it would have been if the only plied with but Mr Hayllar, after having. alternative of Bankruptcy had occurred (see asked for and obtained time for the purpose, Rutty v. Bentall, LR. 2 C. P. 489, and at an adjourned hearing on the 7th of Fo- Waddington e. Roberts, L. R. 3. Q.B. 679.). bruary instant, said he did not admit that But then it is contended for the Defen- the amount of consents in number and value dants that the words we assent to Deod was in fact insufflgient, but he stated that allowing Heard's resuming busmess" is con- ho was unable in this suit to produce the ditional that they might continue their evidence which we required to sustain the business. Now it is said for the Defendants Deed on that point. { '

that this Deed stopped "Angustine Haard (6) All the deeds set out the consideration of dryto & Co." in their business, I am of opinion that money paid, dollars actually paid at the date this Deed enabled them all to resume" of each Deed, and each Deed bontains a re. Hain business under the trade name of Augustino cipt for such money when in fact no money Herman Heard & Co., or it enabled any of them to passed, and none was actually due cave themboldt resume business, in fact all the partners in 4310.17.3 appearing in the account under Labs of the Eutin '-- Augustine Heard & Co. except Mr. Fearon date Desember 31st, 1874. Exhibit No. 36. James Vinicombe resumed business as Heard & Co To The only apparent object of such consideration mayo

resume" means to take up again after in- being expressed was to deceive and mislead tarruption. This is the precise meaning (c) The execution of the Deeds in a secret given in lexicons of resume, and the manner in the presence of a notas (their Lare Maodma commersial or common sense construction of own solicitor, an untrusted confidential ad- Louis the word appears to me to be the same. viser), the sealing them up in a packet deli-N

The second contention for the defendantsvered to Mr Brereton on an undertaking by mean was that the defendants intended to consent him to give up the packet as the Debtors Morning Star. to such a Doed only de that which is contem-might direct; a transaction which in Mr Nautilos plated by Sention 103,and that this not Brereton's large experience was without Nicolide being such a deed, the defendants must not precodent. Dona clandesima sunt semper Property be held bound by the assent.

auspiciosa, a suuret transfer is always a badge | Hamner G. Bend -*- of fraud, Loft. 782. All smelt of fraud and seah Nicholson experiment, to use the language of Lord same Crown Northington reported in Ambler and Eden. Willem Wallace of the Ordinance in the same or fe manner point if the conditions necessary to bring The fraud and experiment in this case was, picit of the Age as if these debtors had been adjudged Bank- the deed within Section 163 had been con- as I infer, that in case by some unlocked fox mara rupts, and the creditors had proved, and theditions which could have been complied chance the Bill should be covered by the Tampion! plaintiffs the Trustees had been appointed with before signature by the defendants, but Debtors, the Deeds should be destroyed, but Viator creditors' assigned under auch Bankruptcy, their signature was necessary in order that that they should be used for the protection Young Sta and in particular that as between themselves the other and subsequent conditions might of the defendante in case of proclaimed tns Lomys and the debtors and also as against third be complied with including condition No, 8 solvency. I infer that the motive for prás ba persons they have the same powers, rights and the defendants having signed cannot sent concealment was that the registration and remedies with respect to the debtors and now avail themselves of the more abeunes of of the Deeds, especially of the Deed assigne their estate and effects, and the collection proof as against them that all the subsequent ing the house in which the business of the mate Tathaut and recovery of the same as are possessed or conditions have been complied with and firm and other two large cotopanies for Lechtal na may be used or exercised by assignees or repudiate their signature,

which they were the managers was terrisa Pr creditors with respect to the Bankrupts or their note, estate and effects in Bankruptcy,

Holding that there is no difference at least for the purposes of this suit between the status of these plaintiffs whom I hold to be Trustees under Section 106 of Ordinance of 1604; and Trustees under Section 169, I use the words of Kelley, C.B, in Exley, Inglis at p. 264: it is obvious that the Legislature intended by Bection 197 (of the Engikh Act 1801 equivalent to Section 167 of our Ordinance) to confer on sugh Trus- I do not see that it fe material whether they tess powers large enough to enable them not are assenting or dissenting creditors fase only" to obtain possession of the property Symonds e. George ante and ex parte Ander conveyed but to undo and set aside all pressun post),

I am therefore of opinion that this Deed does not comply with Section 163..

The defendants also objested that this Trust Deed, if valid, is valid merely as a Deed at Common Law, and that it had no effect at all under the Ordinance.

I am bowever of opinion that this Deed, valid at Common Law, is valid under Section 185 and that on the grammatical constrac- tion of Section 167, and on the authority of Symonds v. George 33 L. J. Ex. 231, con- firmed on appeal 34 L. J. Ex. 187, and other esses, the plaintiffs by force of this Deed which has been duly registered according to the provisions of our Bankruptcy Ordinance, are not only Assignees at Common Law of the property comprised in the Deed, but adapting the words of that section the plain tiffs are subject to the jurisdiction of the Court in Bankrupter, and they have the benefit of and are liable to all the provisions

If they had so meant, it was their duty to have so explicitly worded their telegram There might have been some force in the

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But for the purposes sought to be obtained

(6) Before the date of the execution of the Deeds of February by Mr Albert Heard all the credits by the defendants had been drawn against and realized, and there was lio present consideration even in idea on the execution of the Deeds.

in this suit, and under present circumstances, Mr Albert Heard at the dms he executed.

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vious transactions under which the property 1 am of opinion that for the purposes of that ought to be distributed among the cre- ditors generally was granted away in favor of one. The enzie learned Judge also says This transfer being an act of Bankruptoy no change was effected in the property He must be taken in other words to say that the transaction was absolutely void.

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ton as Trustees under Section 188, and as if they wore Assignees in Bankruptcy of A. Heard & Co., that their side as against fraudulent preferences and acts of Bank ruptoy relates back to the datos of each preferences and sets; and that without their doing any act previous to suit towards before the 8th February four days after the HONGKONG, MACAO AND DANTON- avoiding or "undying" sach preferences date of desde of Febriary. End to the Chinese

and gets This was expresit decided in creditors in Canter with an alternativeDE

to see how the Judges could conour in the Exley in fajin L 2. D has 47,in request listant stoppage, la ukopinion he Beherea dieta there expressed and follow ex parte of Trustees under Section 1831 here that the arm was hopsleray intolyent, da Marzan 39 L. J. Bankruptcy 10. In Faure already, desided on ample authority as I that toppage of the business that 20 tan e Pearson the judges agreed that bection sum funt Tristeen under Section 168 ara Bankrupter was imunikaty was probabis. 194 of the Bankruptor Act 1861 (the same placed by section 137 in predical? the same not declutely certain with our Section 166 of our Ordinance) had position as Trustees unds Bestion 109, I am of opinion on all these grounds frome | Be klang been inserted, in the wrong place. They I am on the whole of opinion that the of them would be admistead) and on several peWLA Buld it was by mistake inserted in the series plaintiffs in this suit are properly antitled to other facts pafunt in the evidence that fleeda of clauses where it appeared. The Judges of impeach the several assignments to the impeached Deeds of February were as against Spark the Court of Exchequer appear to me indefendants, and that if they shew that the the plaintiffs voldi

White Cloud these dicta to hare assumed the functions of Deeds in favour of the defendants were Secondly to the two Deeds in de Totaal Legislation exceeding their proper functions fraudulent ponveyances under the statutes of fendants favor executed In April by dis of mera caponents of Law. The actual degi Elizabeth, or fraudulent preferences, the Parken An pian in Fourson v. Fearson appears to me to Destis operated as sets of Bankruptcy, and (4) There is no evidence whatever thay. Mr paye been soplined to this, thet en eigne were vold, so the cult of the pielaties and Parker when he cacouted the impeached

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10

BENOL MIS.-ben: Co Chitsbeing"

200

2300, P. Danda- 700g din con

Falizer

JE, 0.

M. 8.-beat Co

By C. and Misch, Co Wing Kwok Acheung

Frinted and published by Gio. Murray Bun, at ins China Moil Ofoe, No,

Wyndham Street, Ho