July 14, 1939
CHINA OVERLAND TRADE REPORT
69
SUCCESSFUL WINDING CLAIM DECLARED LETTER SENT TO
UP PETITION
(Continued from page 68) domg business as its ships were liable to seizure, Mr. Sheldon pointed out that 14 ships were trading just as before somewhere in North China.
were
NON-SUITED
Action Against
Chinese Church
July 5.
balance
MAGISTRATE
Most Improper And Incorrect
July 5.
76
the traffic
Nei signal at Wong Chung Road, on June 8, about 7
a.m.
Traffic-Insp. S. C. Saunders pro-
secuted.
Counsel argued that the only A claim for $475 for
L. B. Holmes, of 286, the Peak. assets of the Company over which due in respect of work done and was fined $10 by Mr. Forrest at the Chungking court had juris- materials supplied at St. Mary's the Central Court, for disobeying diction
14 ships out- Church, the
Causeway Bay, brought side of Hongkong. But as they by Patne and Company against were still trading, the Chungking the Rev. Lee Kau-yan and heard court's order was entirely ineffec- by Mr. Justice R. E. Lindsell at tive. To follow such an order of the Summary Court yesterday, was a foreign court would be entirely declared non-suited when Mr. D. opposed to natural justice.
McCallum, for the plaintiffs, Further, there was no autho-pointed out that the writ should rity in support of the contention not have been taken out against that a state of war existed be- une Vicar of the Church. tween China and Japan. Mr.
Mr. A. el Arculli appeared for Sheldon cited an arbitration the defence. case in England recently where a Foreign Office letter was produced received instructions only in the which said the Government were morning and as far as he not prepared to say a state
see the action was wholly miscon- of war existed between these two countries.
case
Mr. McCallum said that he had
ceived.
THE DEFENCE
could
His Worship remarked: "With reference to this case, I have re- ceived from the Commandant of the Volunteer Corps a letter on behalf of the defendant, which is most improper, as I have already informed the writer by post.
"If anyone wishes to influence in any way the decision of a magistrate, his proper course is to come to Court as witness: it is
most incorrect to address a magis- trate with reference to a case pending before him."
His Lordship: If I remember rightly, the Court in this
The defence, said Mr. McCallum, K. S. Kjaer was fined $5 for treated the Foreign Office with was that the benches supplied by parking overtime in Ice House the scantiest respect!
plaintiffs were not according to Street on June 6. The Chief Justice referred to a sample and also that the plain- E. Hammon, of Messrs. Schmidt local case where the Full Court tiff firm had been dissolved and and Co., was fined $40, when of Appeal upheld the submission that the partners should have summoned for driving without of certain seamen who, holding sued in their own individual due care and caution along Long that a state of war between China names. But Mr. McCallum said Island Road on June 6. and Japan existed, refused to he hoped to satisfy the court that Traffic-Sgt. Clarke said that work on ordinary peace-time it was still a partnership.
defendant was driving with a articles.
His Lordship struck out the writ party along Long Island Road, Supporting Mr. Sheldon, Mr. as non-suited and awarded costs from Stanley to Shekko. He drove D'Almada said the true object of to defendant, but told Mr. very fast and on the wrong side the petition was to stop the Ching McCallum he would have leave to Kee from chartering to the
institute fresh proceedings. D. K. K. the six ships, otherwise all the Company's assets in Hong- kong.
ULTRA VIRES ACT
The petitioners said that that wou'd be an ultra vires act. He would assume that that was So, but Woulu
e equitable that the company be wound up? The true remedy would be for the
++
shareholders to apply for an injunction to restrain the company from handing over the ships.
would be like a lifeless trunk, when the head had been knocked off, some iimb of which was ex- pected to be imbued with some power of living.
COULD BE ENFORCED As to the argument that the Chungking court's order was nugatory, Mr. Potter said he was not asking the Court to enforce any order from Chungking, but to make one of its own. The order could be enforced here, and there were substantial assets within the jurisdiction.
The majority of the share- holders, said Mr. D'Almada, were in North China, and were against winding up. Moreover It was only then that the ques- the advertisement of the petition | tion had to be considered as to was published only in Chungking whether the order should be and Hongkung
of the road. A complaint was made by Mr. Tinson, who nearly collided with defendant's car.
asked what could the word mean but conditions of war.
His Lordship: An "incident." as I understand it!
Allegiance to the Government of China, continued Counsel, did not cease just because a piece of territory had been occupied. It would be high treason not to obey the Chungking law under normal circumstances.
As to the contention that an in- junction was the proper course to adopt so that when peace return- ed the Company could resume business, Mr. Potter pointed out that there would be no Company, as the Chungking court had order- ancillary to the Chungking ordered it to be wound up. He submit- in respect of the remittance of the ted that there was no answer to proceeds of the winding up.
the petition.
Re-addressing the Court, Mr. Potter said the proved position of the Company must be considered. Further, there had been an at-
In admitting the petition, His It was proved that a court of tempt by the other side to show Lordship said that he would put 'competent jurisdiction had order- that China and Japan were not at the reasons for his decision in ed the Company to be wound up. war. In Mr. Matsumoto's affida- | writing. The provisional liquida- If the head office were wound up vit, however, mention was made and the branch here were not, it of the "hostilities." Mr. Potter
tors were to continue, and costs were awarded to petitioners only,
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