SUPREME COURT.
(Continued frim Page 01
THE HONGKONG DAILY PRESS, THURSDAY, MARCH 29ra, 1906.
preventing the liquidator from putting into evitable and it will be granted in terma effect the resolutions but to coatings in fores only until and if the shareholders shall have
sa and and realize its assets in the best way more weight in its inverted than in ita original possible. The way adopted was a transfer for form. Directly the essential difference batweos shares or polício, and this was done under a voluntary winding up and a winding up for a defondent's fovere the answer is that this section 161. I pase to another group of cases. special purpose is established this argu- had submitted to them a revolution in lieu of company over came to the deliberate and In Clinch's case it being found that the arrange; judgment of James, Lord Justice, in Bird by the liquidators for shares in the new com-
a petitio principis. Tho on the Articles, the question then con Bird's Company (L. R. 9, Ch. at p. 363) is, pary and which shali recognise the rights of
the
winding
ary winding up was,good, says ex with any
is not mixed up in itself ather resolution: it is a simple resolution to wind
of
affairs of that
of
most in question was not to be
I tako to
1:3 10
down je
Dant
becomes
the 4th rosolation, which shall authorise a salo
Mione 201 and 202, and sach resolution shall ha.e been carried by the requisite majority.
POLICE COURT.
Wednesday, March 28th,
BEFORE MR. F. A. HAZELAND (FIRST POLICE MAGISTEATR).
A DANGEROUS WEAPON.
A native was charged at the instance of Sergeant Gordon with carrying arms without o Police, licenen from the Captein' Superintendent of
The ovidence showed that he was arresti on
Jubilee Road at aluu c'clock at night carrying
a large sheath knife.
His Worship imposed a fine of $25, the alternative being six weeks' imprisonment with hard labour.
STOWAWATS,
Two natives wore charged with atowing away on the ss. Changsha with a view to obtaining
passage to Australia.
Mr. F. X. 'Almada Castro pleaded not guilty on behalf of the dofondants. He said they were engaged on the steamer as firemen
Captain Moore dorind this, and said they were on board without the consent of the owners, agents or captain.
His Worship said if the defendants were part of the crew, their names would appear on the articles, but they did not. He would bind the defondants over in the sum of $100 to come up for judgment when called upon.
AIDING AND AÐETTING.
A fireman on the sa. Changsha was charged with siding and abetting the two previous defendants to obtain a passage Australia.
Ng Po, one of the stowaways, said the defendant asked him to go aboard the steamer and work, as they were two men short. The defendant asked him if he wished to go to
Sydney Witness asked the fare. Defendant ssid 5670. Witness said it was too much; he could cot afford to go. He had been to Aur- tralia before. He went on the steamer to work for 40 cents a day until they returned from Japan. Then if he wished to go to Australia he would have to pay $230 down. Witness told the chief officer he could not stand the work of fireman, and that defendant wanted him to
go to Australia.
Captąja Moore said they had their full crew of firemen on board, but two were sent ashore to make room for the stowaways, who were to desart on arrival at Australia. Had they best saccessful the ship would have been fined £100 for each man.
Harious resolutions to wind itself up in the ordi- nary sense, but only to wind iteelf up for the
was whether it could be supported under think, strongly against such a transaction being the dissentivat shareholders under purpose of reconstruction. On this case it marst
section 16). It was held that it could not
valid. Ho Bays, discussing the validity of the ba noticed on the one side that the
up
cans, it was was in fact for the purpose of reconstruction minority to take shares in marther concern
an attempt to bind the original agreement in that case, which was to on the other that the part of the Vice-Chancel with paid calle. In re the Imperial Bank of solution for winding up Uzder section 161 be carried into effect by means of the ro- lor's judgment which I have referred to was.
China the transaction could not be supported the liquidator could not have sold the given for the perpos only of noticing the argu. mouts which had been advanced, and not for the ader the Articles; the arrangement in question property, and that stion is the only one Tuzo of the decision, which was on another imposed a premium on the boldors of the new which gives pewor to bind dissoutient share- was held that it could not be holders by a transfer of the Company's business. shares, and grand. And lustly that the cars was cited in Teeds and Bishop's casu.
In Stone Cis supported rader section 161, and was therefore a dissentient shareholder has a right to invalid. In those two cases arrangements were something more than what be gets under this and County Bank (R. 3 C.P.D. 262) this point is dealt with in Romwell. Lord held invalid which did not come within section agreement." The case was quoted to show that the thore cannot be a transfer to a company not Justice's judgment at p. 307. It was contended 11: which after careful reading of
judgments
mean that they yet in existenen. That of itself is an important that the resolution to wind ny and therefore
invalid because they principle, for, .0.9 І мага already said, The winding up itself werd all indeed the did not conform to that section: not, it is there is no guarantee that the new company
allities, becau were d the fourth resolution was
would havo raised enough capital to start other resolutions. I think it sufficient true, in that par ticular which I have been con. answer to this contention that the second sidering, because the Court by holding the business. I cannot help thinking, however, that Luo Lord Justices were enunciating a much resolution is good in itself it simply arrangements invalid destroyed the necessity
hank shall be wound for applying the arbitration clause. In another der principle which would be entirely in stating thas tho
of which favour of the plaintif in Luis case. But he that up, and not
book shall be very important group of cases wound up
upon terms of the following Cation's case is typical there was a power to judgment is short and this question not fully resolutions. The second resolution is not com.
sell for shares in a nor company contained in thrashed out and as this case can be decide't bined with the other relations, but stands the Memorandam of Association. The argu on a broader ground, I do not pursue the ment which Chitty, Juation, was at a loss to onquiry, but asenme that the resolutions apart upon s own footing: therefore, in my opinion. it is good, eres if the fourth resolution is bad." understand was that this was ultre vires, from the circular would be valid, always supa I doubt whether Fox's cass carries the question becuase obviously people who come together posing that such a scheme had been deficitely
shall any further. As
1 point out presently to form a company can include what they will put bofore the shareholders and had en Aadopic at the meeting. But the scheme this fuels were entirely different from those in in their Memorandum of Association.
It was put fan present one: and Melish, Lord Justice, in rusolation bad bin passed to sell under this pre- uevor was so put forward.
forward us
[L reconstraction, ad again daoussing whether the resdution for a volant vision and the winding up resolution catne some
time afterwards. Chitty, Justice, remarked as an amalgamation and everything in "the
that the shares so bought became part of the thelettoref 22 May was based on that hypothesis. 2x-30 Julio
sets of the old company which, he added, the And the resolutions were intended to carry out
stion 101 liquidator might dispose of under s
u regecstruation or amalgamation. I inticated " and the state up
company was such, that, independently of transferring Donghty's case follows that decision, Buckley, that after five days argument tas terms of the their assets to this now company, there wage
Jastice, considering that the sale ander 4th resolution still somed to me rary vague, very strong reasons why the company should be the Monorandum of Association was in- and possibly to bear the meaning that a wound up. Though I for the fores of the dependent of the winding up. One last group reconstruction was intended in the proper eritision on the order made in the Imporia of errs remain to be mentioned, though the sense of the word as I have explained it. It Bank of China cams, there is such an abuniang frets nd not be gone into, as the principle was not till I read the agreement that the tras ΣΕ su clear, Baring Gould's nature, of the scheme dawned upon me, authority in favour of the distinction betwoon laid doy
The a voluntary windling up simply and a winding ease, and Payne, the Cork Company. Where was na ont-and-out sale for cash.
for omphasising the nature of up for some definite purpose-a distinction there is a sale of an old company's assets for runson
sale in this way arises from the which was clearly acted on in so recent a ease shares in the new company a dissentient share the as that of To dound Bishop, in which the rarlier holder cannot be deprived of his rights under argut that in every reconstruction there cases were cited, that I feel little hesitation in section 161. This principle was also laid down must be a salo from the old company to the acting on it in this case, assuming that the in Fox's once. The scope and meaning of section new and it seemed to be sugges.od that as criticism to limit to the forta of ha 01 is now clear. There may be many eased in gale is essential, if you start with a sale you which a transfer of an old business is affected way. nitimately get to a reconstruction.. 3g order and not to the principle laid down by Turnor, Lerd Justion. I therefore come s for shares in now company, and whenever this answer is not in the case of an out-and-out the conclusion that the essential differenes happens in virtue of specia! olutions the ale for cash, but only in the case of a sale for between an ordinary winding up and a winding dissentient shareholders carot be deprived of shares. What puzzled me at first puzzles me up for a definite purpose lies in this: that the protection which the law gives them, still. Reconstraction being intended, and the the latter anse the winding up solution Further, if, as I think, reconstruction involve statute having provide 1 the method of carrying dook not stand by itself, bal is so linked on ts of itself the transfer for shares, the rights of it out, why should that method not have been the purpose for which it hus be agreed to
the dissentients are preserved whenever there is adopted! The reason is supplied by the argu- a reconstruction. It will be convenient to ment: in order that the disentient shareholders that if that purpose fails the resolution to wind
consider now what reconstruction moans, should not have the benefit of the arbitration up must fail too. In this case the winding up was for the purpose of reconstruction, and because while admitting that there was a proviso in sections 201 and 202 The ques ion although, as I shall state presently, there is no reconstruction, the company says it was car. therofore comes out clearly Is it possible thrt with notices and reseintions framed with a view reconstruction in this case the winding up ried out by means, first, of a sale for cash resolution briving beet expressly passed for this secondly, by a grant of an option to the old tu reconstruction, and reconstruction alous, the рагров it cannot be treated as an independent shareholders to take shares in the new company majority can deliberately oust the dissentient resolution. Therefore if steps are taken to A autaber of authorities wore cited to show shareholders of what the law gives them for technical ques redress the rights of a dissentient sharohoidor, that reconstruction is not a term of art. and their protection This is not
has are special meaning: from which argament tion as to the form of the notice, but one which by means of an injunction, the winding up
involves its true meaning. Reconstruction was Tesolution must itself be affected it must it might be supos that the defendant mesus follow that the liquidator appointed for the that anything is a reconstruction so long as intend and proposed to the shareholders, purpose of carrying out the liquidation and the people who ars in control of the business Resolutions were framed with a view to carrying
an choose to call it by that name. Bet whatever reconstruction has not the powers of
out reconstruction and were adopted in that sense: there was not the shadow of a suggestion ordinary liquidator, and therafare le procent way have been said in general terms as to
that there ever we any idea of winding up so inge in this case cannot be said to be taken reconstractina having no definite meaning, in in the exercise of a liquidator's powers-first of one case Chitty, Justice, was expressly called prosperous a concern except for the purpose King,
rol
indicated in the circatar: and it must be zoted Ju of the concern; and, secondly. fixing the upon to decide whether prices which the archeliers must take for their reconstruction or not: Hooper Wastern that the form of the resolutions adopted share. It may be said that this view as to the Counties Telephone Company (41 W. R. 81), taken from Palmer's pri sedents, and is 20 of the forms given for reconstruction under mitel natre of the liquidator's duties when By an agreement someting was
winding up
is for the purpose of reconstruc doun in the event of a reconstraction: The section 161. The agreement carrying out the tion is ant warranted by the Act. It is por plaintiff cinimed that what had bappened resolutions was an out-and-oat sale for gash, it fectly true that-this-is-se- -50-for- express was a reconstruction, and therefore he was incompatible with reconstruction, and the words are concerutd: bat the same may be said entitled to what the agreement provided in that rights of dissation under action 201 were
In reply to a communication of the Merchant with regard to reconstruction itself Yot it is vent Chitty. Justice, held that what he not respecte 1, I am therefore of opinion that
Service Guild with regard to the dismissal of expressly contemplated by the first words of boon done was not reconstruction but an on the resolution by which those rights were section 241-"Where any company is proposed and out sale. This therefore is perfectly cler, ignored is invalid. It was said that arbitraight aliens from the s.s. Speedwell on the ground that British subjects only would be be or is in the source of being wound up that although perhaps many things may be tion had in fact be offered. This so- allowed faside the Government Works at
an ont called offor was contained in together voluntarily, and the whole or included in the term "reconstruction,"
letter in Chatham, the Admiralty states that these men ition of its business or property is propose and-out de for cash is rot one of them. I which there was an extraordinary confusion were dismissed entirely on the initiative of the
1x Lansferri or sold 1.0 another shall add this without any diffidence, that the between the words "contend" and "contest,"
master of the collier, and that there are no Where
are these two
rules as to the nationality of the crews of conditions word, as well as the cognate word “amalgama so used that one did not know whether the
contended or "contested" what coffiers in peace time, but that the regulations ara combined then certain powers re tion" connot the costinued exist mes of the Company conferred on the Equidators, but it is precisely old company until the instant of its mesgar in followed. But eren taking tunsa rutation pre-cribe that in time of war the crews of this combination of ovenie which conatitud the new company, and therefore, List my which the defendant's Counsel put upon collier transports maat consist of British evonstruction. The conclusion is inevitable scheme which evolves the caster of that the letter, there was certainly no offer to subjects only. With regard to inquiries of tho at this setine was passed with an express existence, before the actual transfer of the arbitrate under sections 301 and 202, but ouly Auild respecting the confidential notices to be view to reconstraction, and this was pointed old undertaking to the new company, is in some other way which sesied preferable to issued in war-time to the captains of British out by Chitty, Justien, in Cotton's ease-oither reconstruction nor amalgamation. And the liquidators: the repost for arbitration merchant vessela which in this way might fall
under the Companies Act was always refused, Then it was seen that there were many cases na the old cutity must merge bodily into the in which a company might wind tuslf up new entity, the shareholders of the old company This letter of 27th October is not very com voluntarily merely for the purpose of rescu raust become ipso facto shareholders in the prehensible because giving the santenes a deficits struation, and that it would be very advantageous new company though obviously not necessarily touring, that is to say, reading the donkitful
contest,' it
say that that there should be taken a power in subst sace holders of all the shares. It matter little that word as
purports to for the company to reconstruct itself." But their exact holding may not have been prised, the company has not confested the plaintiff's though reconstruction is manifestly aimed at so long as the person who represants them, the right to have his inter & purchased in parsu in section 201, I do not think that this liquidator, holds shares in the new company on auce of section 201, which is virtually an admis explanation of the purview of this section is in their behalf, which he will, and is empowered sion of the plaintiff's case: for, if he has u any way exhaustive. I bave never come across by section 201 to do, subsequently diside right under section 201, he also has the right question of a question in which greater care was uereseory amongst them. Then comes the proviso of which follows in section 202. The to limit judicial explanations of the staint the section for the prot tion of dissentient arbitration under the Articles of Association ory praxisicus to the actual facts of the crieshareholders, which is safeguard in the does not arise. The case was argued, however, in which they occur, nor in which statements words of Chitty, Justice. against imposing juder muently of that letter, or rather on the 2 member of basis that the word "content was really in text books have to be mora narrowly szum posibly a liability upon led, eren so standard a work na Buckley can the company which is being wound up by meant, but that the remainiler of the stance. was wrong. As to the actual pries offart 1 only serve as a guide book, showing the way to seeking to force upon him shares which the judgments where the law is expor ndod. were not fully paid up." to which may be added for the old shares I have very little to do There has already been un instance of this inor which he does not desire to have." There But some emphasis was laid on anurlier part of this judgment. The facts in was in this case an out-und-out sale for cash evidence given to show that it was a fair Fox's case huve, as I have aiready intimated, the option of taking shares in the new company price. It was in fact basel on the last sale of only a connection in principle with those of the really amounts to nothing at al. The old shares. This, with all deference to this views prosent case: and when they are exmained it shareholder may invest bis $200 per share in of the majority who were willing to let their
I
he
company.
E
scheme was a
to 1
it and
His Worship ordered the defendant to be imprisoned and kopt at hard labar" for nine months.
BEFORE Mr. C. D. MELBOURNE (SECOND POLICE MAGISTRATE).
ALLEGED MANSLAUGHTER.
At the instance of Inspector Robertson, Harlay Rai, a watchman at the Quarry Bay shipyard, was charged with killing a coolie
Mr. F. B. Deacon (of Messrs. Dancor Locker and Deacon) prosecuted, and Mr. A. J. Gardiner (of Mr. O. D. Thomson's off appeared for the defendant.
The case was adjourned.
THE SPEEDWELL" CASE.
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inte the hands of those aliens who command British vessels, the Lords Commissioners of the Admiralty thanked the Guild for their com- musication and informed them that the con- ..
-ON-SALE siderations to which the Guild advart have
DOUND VOLUMES of the HONGKONG They add that at the B WEEKLY PRESS, Jaly to December occupied attention. forthcoming manmuvres it is not proposed to make use of any of these confidential noticas, 1995. With INDEX. Pries 87.50. baru been & splendid opportunity to experiment which the Guild regent, as they think it world
with them.
MORE ABOUT CHINESE "SLAVERY,”
The following extract from a letter just received in London from a gentleman residing at Jehannesburg speaks for itself
"I'm afraid I'm not able to enlarge upon the mouth Chinese question. If I were to do so my
ng words. I and strong wond be full of curses wish that some Radicals had been on Johannes- burg railway station platform this afternooR, and read the slaves flocking into town for an
On sale at the Hongkong Daily Press Offic Hongkong 20th Feb., 1906.
MITSU
BISHI DOCKYARD AND ENGINE WORKS, NAGASAKI,
CODE WORD: "DOK,"
NEW DOCK NOW OPEN,
irill Reen that they afford another fastuace the new company if he likes; and be may also shares gont that price, seems to me an altoge afternoon's Jollification, and driving from the A.1, A.B.Cs and Engineeringde Used of circumstances in which a company may find invest any other money be may wish to in the ther arbitrary conclusion. S have been station in tivo-horse cabs, Comment is super-
which the of section
Was
company, which is prasesses with other members of the public, if the new cora prin
therefore that the case does not fall within the
there
had sale. It car. fordions, ut it had not eat only have been
The
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peculiarly applicable. The object which the
tous. But the white men have to walk. basis of valuation would have had to be found. It "People here are getting very inconsed at the pat upon the market, as this company was to Irrigation Company of France had in view wra npt reconstruction nor amalgamation, but a be. His so-call priority amourts to nothing is clear to me that the time for estimating the lies circulated by the Radical press.
value of the elares has not yet arrived, ami I whole ry is a lot of atter rot. The Chinese mera transfer of ita assets to a new compray at all except in the event of there being more sab
fed the fores of the argament which Mr, urn a lot of young lads, and they are exceedingly owing to the difficulty which it fours in pscriptions tina were necessary to flout the now
Pollark addressed to this point. Nobody well treated, but being young, they have to 1ging or its business in France. It therefore company. But, and I now come to the crux
maintain knows at present what the new company,
a certain amount of disciplines among determined to transfer its business by way of the care, the company says it has not transferred sale,
and one of the necessary incidents of this its business to the now company for share, and if it is floated, may do with its concession them. A more cheerful and happy lot of fellows Most of the people out here transfe the winding up. There was
now it has got it. It not an impossibility I have never seen. not for cash but for shares in the new company, interpratation of see in 201 which I have given that things may be so satisfactorily arranged would like to have them for servante, in and what the Lords Justices decided was that i above. The teclinical argument that the notice that the old shares may rise in value perhaps preference to niggers, but they are not allowed resolution which attempted to deprive the referred Ito the
101 of the Articles of Association, do with the price to be ultimately paid: but discontient shareholders of their rights under underutil innting as having been called teraperarily. It is true that I have nothing to to do so by law. section 161 was bad. South's case is and that therefore that of itself put the question sucioni has been said to show me the immenss importance of the safeguard which the another example of the same principle, outside the operation of section 201, muy though I agres that some of the oxpros. be disposed of by this observation articlo legislature has
the protection of those who de sicas used in the judgments look at first 101 is the only, article by which a mesting section auf for Use friction of introduce in sight as if they could be interpreted in the way for winding up for any purpose conld have been not agres with the poles of reconstraction of Mr. Slado suggested: but it is clear that here called: it is impossible that that fact should amalgamation. For all these reasons I am of also there was neither reconstruction or destroy the rights of dissentients, if they posse opinion that the plaintiff is easitled to judgment amalgamation, but only a transfer of the ary, under section 201. Now, looking at the on his alternative claim: but the question what not free from business to the new company, the old company point in the abstract, the question arises whe form it should take is
AS OFFICIALLY PREPARKD cessing to exist by voluntary winding up. The ther a company can trusfer its business to a difficulty. I have found the 4th roselation transfer was effected by taking policies in the new comstby for cash, winding itauli up for invalid because it ignoras the rights of the
FOR 1906. new company, and in order to effect this the that purpose, and the transaction not being dissentient members, though I do not think it is
Showing the dates of departure of the Mails okl British Mutual Life Assurance Company within the express terms of this section, the ultra eres on that account. The form of the
to Europe and America, and the dates of their caused itself to to registered under the dissentient shareholders, do not get the pre-order must therefore restore to the plaintiff and
The argament in the others for whom he is saing the rights of expected arrival at their destinations, as well as panies Acts and availed themselves of the tection of the section. power given by section 161 to distribute favour of such transaction is this: the which they have been deprisal. But here this the dates of departure of the Mails from Europe these new policies among the old policy sale of the undertaking is a part of the difficulty arises. He is entitled to a declaration and America and the dates on which they are heldars
There was no idea of continuing the winding up, and is within the power of the in the terms prayed down to the words either due to reach Hongkong. A Special Table is the Parcels Post to and from old company nor of merging it into the now liquidator even without any special sauction to abstain from carrying the eail resolution into devoted to company merely an intention to stop business from the shareholders: more especially, I think effect"; but if the remainder of the relief were England.
# and transfer the assets to the new company. it was put as on a fortieri, is it within his given as it is prayed, I should ha fitting this We have here therefore a group of casus widely power if he has such sanction; that is to Bay, agreement which is based on the 4th resolution differing from the present cose in this that the he can act with more safety if be has such on to section 201. But, as we have seen, it does object of the voluntary winding up was not eruction. But this is an inversion of the not fit at all, because the liquidlater has not been reconstruction, bat to bring an old business to originel argument that there is here in fact authorised to sell for shares in the new com- winding up pare and simple, and it has no pany. An injunction therefore becomes in-
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