1922-11-27 — Page 5

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SECULATION IN SHARES. BEEIVING ORDER MADE AGAINST

MR GREENFIELD.

ALL THREE GROUNDS

SHARE TRANSACTIONS NOT ILLEGAL AS

WAGERING CONTELOTE. "

LEGAL PRECIDENTS.

THE HONGKONG BALLI

PREJD,

MONDAY, NOVEMBER

FIRES IN HONGKONG AND KOWLOON PENINSULA. HOUSES DESTROYED AND A CHILD

BURNED TO DEATH.

The Fire Brigade was called upon to deal with two contemporaneous året, I may add that, at the close of the yesterday afternoon, one in Taihang argument, Mr. Zeitlyn drew my attention to the case of ex porse Scott, 1836. 10. Village and the other in the Youmati 515. Thas case decided that a statement portion of Canton Road. A working class by a debtor-to amount to a notice of woman, living in Canton Road, left her suspension of payment must be one which

VINDING AGAINST TEM DESTOR AS TO ACT

H OP: BÀNKRUPTON, In the former case (As parte Qustler)

I'm clearly of the opinion that, in the it was held that the notice must be given formally, deliberately and with the intense before me, there was a clear intention FUDING AGAINST THE DEBTOR ON tion of giving notices, and therefore that on the part of the debtor to suspend pay a giatement by the debtor that he sun of his debts, and, that his creditors, able to pay

his debts in full was not an in the terms of the language used by him,

could come to no other conclusion net of bankruptcy. I may observe that there was a decision of a Divisional Court he Chief Justice (Bir William Rece of contemporaneous date (Es parts Dries) delivered judgment on Satur | Nickell 15 Q.B.D., 170), which was nocepted in the case in which two brokers, în En parts Ostler, that the notion may Meara, P. M. N. da Silva, and M. Abe given orally by the debtor to one of means that the debtor intends to deal with child at home-probably, owing to the his creditors as a body and not merely cold weather-and woat to work. It is Back, petitioned for a receiving order his creditor

with one or more individual creditor. It supposed that the child pulled a lamp Before referring to the facts in Ar parte also decided that the sub-section applies over and ag so the place on Bre. The aginst the estate of Mr. B. Greenfield To judgment dealt at length with the Oostler I observe that later chees have to non-tradere, as well na to traders

laid down that the question whether or The facts were that a debtor, in reply house was burnt down, but the Fire ellim that no act of bankruptcy had been not the contents of a notice to creditors to a request for payment of a creditor's Brigade managed to check the spread of committed and found against the debtor onstitute au set of bankruptcy is one of account, said, 'No, I won't pay anybody the fire to neighbouring property. Other of this head. The Chief Justice also held foot to be decided in each case (Re. Lamb now" and when urged to see the appli that the transactions in China Provident arr. 2). The effect produced on the cant she said. "It is too late: I am acting occupants escaped unhurt but there is mind of the creditor by a notion the words under advice and I refuse to see anybody little doubt that the child was burned to shares were not illegal as wagering com. of which infer an intention to suspend at all." Vaughan Williams, LJ, in his death. tracts; further, that no authority, was payment, is a general test which may be judgment said "What she was really say eid to show that any breach of duty, if applied in answering, this question. (Reing way I cannot pay you or anyone Taihang Village and when tho Brigada! such existed," or the part of the portion. Lamb supra and Crook Morley 1891 I have taken advice and I am advised tant

ing creditor, was a ground for dismissing the petition within the meaning of the sub-section.

THE JUDGMENT.

The Chief Justice in his judgment,

id:

This is a creditors' petition för a receiv- ng order. The petitioners are two share brokers and the claim is in respect of certain share transactions. The petition i opposed on the following grounda:—

(a)-That the petitioners have been guilty of a breach of duty to their "client which should disentitle them to the order asked for in this "Court in bankruptcy jurisdiction (b.)-That the debts alleged are of a gambling and illegal nature and are irrecoverable in law.

(c)-That no act of bankruptcy has

been committed.

follows, #2

I must dend with my creditors collee tively,'" and he held that it amounted to a notice of suspension.

i

THE CLAIM THAT THE TRANSACTION WAS A

4.C.. per Lord Melbourne at p. 391)

Now in a parte Gastler the debtor, after stating that he was unable to pay his debts, offered 20 per cent, dividend

Now I think the case before me is an and said he would obtain assistance from analogous and probably an a fortiori one, his brother-in-law if he could arrange The debtor told several of his creditora with czdditore. Cotton, LJ. said: "But I have no mones. I am not going to the debtor did not in fact intimate either pay anyone, and he added, in reply to that he had suspended payment of his certain of his creditors, that he was back debts, or that he had any intention of rupi. stopping paying bis creditors. He only Baid My assets are insufficient to pay my debts in full. If my creditors will make an arrangement with me, I can obtain assistance from my friends. That whe hot an intimation that he had suspended, or that he was about to suspend payment of his debter; it was only an intimation that the creditors would get more in that way than they were likely, to get in any ather. To my mind, there is a great difference between saying If all my assets are distributed, my creditors will not get 205 in the ponud," and saying, If any creditor. comes to me in the ordinary course for payment I shall not pay him, or I have suspended the payment of my debts

!

ין

As to the other two points, I can deal with them briefly. To establish that the contract is vitiated as a gambling transac tion the learned counsel for the debtor contended, (a) that, by virtue of section a of the Supreme Court Ordinance, 1873, the Act of 7 George II. Cap. 8, is in force in this Colony, and, (6) that the- last- named Act makes all share transactions! by way of wagering illegal.

A late call was received to the fire in

arrival four small two-storey houses were found to be alight. The places were used as rattan workshops and cowsheds, and within a short time the flimsy structures collapsed. No information is obtainable as to the cause of the outbreak, which is estimated to have caused at least $30,000 worth of damage. It was expected, last night, that it would be necessary to con tinue directing water upon the ruins until daybreak

BOMBS DISCOVERED. LOCAL WATCHMAKERS THREATENED.

Now the authorities on Stock Exchange Acting on information received, the transicious in scation to Kaming and police kept a special watch on a number wagering are examined fully in 2 Hals of watchmakers shops in Gough Street, bury at page 250. He states that I will deal frstly with the last ground.

"although it is possible to gamble or on Friday night, whose proprietors are speculate on the London Stock Exchange, said to have been threatened that their The act of bankruptcy "alleged is that the

DENTOR'S LANGUAGE WAS "FINAL."' debtor has given notice to certain credi

it is almost impossible to make a contract shops would be blown up by bombs unless To apply that language to this case, I tora" that he has suspended or that he is about to suspend payment of his debts accept the contention of the learned there which is void as a gaming and wager.

ing contract." within sec, 2(1)(h) of the Bankruptcy counsel for the petitioners that an Thacker Hardy QB. D. 685, a deck by a gang of men. At about 11.15 p.m. The authority cited is they compled with certain requests mado Ordinance, 1801. The evidence its to attempt to negotiate on a 20 per ount son of the Court of Appeal

In that case the plaintiff, a broker and Chinese in Gough Street. One of the two Chinese detectives noticed two notice of suspension of payment is con offer is very different from a rofusal by mixed both in affidavits of witnesses, and a debtor to pay anybody, combined with member of the Loaden Stock Exchange, in oral evidence in these proceedings in an offer to the claiming creditors to tako sued the defendant for commission and men was carrying a shoemaker's kit box support of these affidavits, and is as stor do moto four die for an indemnity in respect of certain and the other had a gallon tin containing Greenfeld a statements made dis contracts into which he had entered Tur kerosene. The detectives stopped the two tintet creditors could be regarded as suant to instructions. It was held that. DENTOR'S STATEMENTS AS TO HIS POSITION. casual talk or not as a notice that the plaintiff was entitled to recover men and examined their packages. When

Mr. Razack, one of the petitioning he had suspended payment," within

After dealing with the Act of 1845 (8 the lid of the shoe-box was removed a creditors, in his affidavit of 29th Septem. the language of lind day by them cradli and a Viot e 101), which is not in force cigarette tin and a fruit tin, were reveal- Bor, 1922, states, "I was informed by the confronted on settling here, Lindley J. deals with the statule 7 said debtor on the 25th day of September, tore who had come to him for the purpose Geo. 11. Cap. 8. The Act prohibits dumed, about which the detectives were evi. 1922, and I verily believe that he had no of settlement which had to be made on tling in any publicke or joint stock i dently suspicious for they took the men money and was not going to pay anyone, settling day, and he tells them that he cther publick securities whatsoever and ha further stated that the only thing cannot pay anybody, that he is bankrapa Lindley 3. says It required a Statute and their find to the Central · Station. to all is brokers In the witness box The language contains no tentative pro the public funds; and notwithstanding tins and when this was done each tin he could do was to transfer his business and that they could take bis business (7 Geo. 2, c. 8), to prevent gambling in Great care was exercised in opening the Mr. Razack confirmed this statement asposal: it is final follows: On September 26th settling As to the other case relied on by Mr. strong condemnation in the preamble was found to contain a lot of broken

of auch gambling, the Act itself was re day, I saw Mr. Greenfield. He told me Zeitlyn Clough Samuel 1905 A.D. pealed in 1860 by 23 and 24 Vict. 6. 36. glass a stick of dynamite and a "deton- I have no money to pay. I am not 44, a stock broker being hopelessly insol- Moreover, even when the Act was in force, ator. Fuses were attached to each tin. going to pay anyone. All you brokers vent told his Stock Exchange creditors gambling in shares and foreign stocks was can have my shop.'

that he would have a difficulty in paying held, not to be illegal, either under the

Early on the Saturday morning the Mr. Carvalho, assistant to Mr. do them at the approaching settlement and Act or at common law. Earlics in the police took one of the men to No. 400, Silva, the other petitioning creditor, in suggested that they close their accounts judgment he, says (p. 687) It has beca Shanghai Street, where he lived and in his affdavit of 29th September, 1022, states with him, which they did. It was held held that, although gaming and wagering his cubicle two revolvers and nine rounds as follows: On the 26th day of Septem there was no intention to suspend pay contracte cannot be enforced, they are not ber, 1922, I called upon the above-named ment of his debts and that no such notice illegal" and he refers to Fitch v. Jones of ammunition were discovered, debtor and naked him for a cheque for was given within the meaning of the sub 5B and B. 258. The judgment of Lindley The two men, Ting bang and Chan $11,917.50, being money due to the said section. There is, I think, no legal J was affirmed in the Court of Appeal. P. M. N. da Silva on Stock Exchange analogy between that case and the que In Hibblewhite v. 'Morine & Lid. Ez. Lindsell on Saturday and charged to Heung, were produced before Mr. R. E transactions The above-named debtor in- before me as is demonstrated in a judg- 271, which was a case of a deal in rail-gether with the unlawful possession of formed me that he was absolutely bankment of Lord Halsbury (p. 448). The way shares, the head note reads "If the bombs. Chan was also charged with rupt and that he had no shares to deliver debtor stated that on the approaching party contracts to soll goods to be dethe possession of the revolvers and am- and no money, not even $500. He fur-settlement day he would have difficulty in livered at & future day, of which he is ther stated that the said P. M. N. da Silva paying, whereas Mr. Greenfeld makes a not possessed at the time of the contract, In asking for a formal remand,

munition, por could have his business. This statement clear statement of his insolvency on settle nor has entered into any agreement for Detective Inspector Grant told the the witness confirmed in the witness boxi ment day. Lord Halsbury said "I have the purpose thereof, nor has reasonable Magistrate that at the next hearing a Mr. Larmert, a sharebroker, in his no doubt he was hopelessly insolvent expectation of becoming possessed thereof, further charge of possession of explosives affidavit of 29th September, states ha

1 think he had no intention to within the time limited for the fulfilment with the intent of causing damage, to follows: On the morning of e 28th suspend payment. I darcasy a bust of the contract, otherwise than by pur property would be preferred against the September, 1922, I visted the above-named news man would infer that he was likely chasing them after the making of the con- defendants debtor at his premises No 51, Queen's to do it, or perhaps that he was likely tract such a contract is nevertheless Prisoners were remanded natil next Road Central, Victoria, aforesaid, and even to become bankrupt, but he would valid. Parke B. said: No legal prin- Saturday. naked him for scrip for 1,000 shares in the infer that from the circumstances and not pla is endangered by allowing parties China Provident Loan and Mortgage from anything said by the debtor. to sell goods of which they are not posses Company Limited, in pursuance of a con- Mr. Alabaster cited the case of Crooked. A transaction of this sort cannot be tract with my firm to deliver the aid. Morley, 1891, A.C. 316. It is a decision considered a wager because both parties sharte to my firm on that day. He told of the House of Lords, and the facts were are not cognisant of it; nor has it any me that he had no shares and that he was that a debtor sent to his creditor this tendency to injure the public, Ideed the bankrupt, and that we could take his letter Boing unable to meet my fewer the restraints imposed (pon the con furniture and factory" This statement arrangements, as I told you, I invite your tract the better."

tendered

W

ILLICIT COCAINE.

ALLEGED BRIBE TO A CON-

SSTABLE.

On Friday night a Chinese, named Lam

the witness confirmed in the witness box. attendance at (a specified place and time) In my opinion the foregoing authorities

Mr. Kitchell, another sharebroker, in when I will submit a statement of my dispose of the contention arged on behalf San, was arrested on suspicion on the his affidavit of 20th September, states as position for your consideration and dect of the debtor that these share transactions, Kowloon whart. At the Water Folios follows: On the 26th September 1980sion." It was held that the letter would, the mie notes, suzen in conjunction Station, he was searched and was found I attended upon the above-named debtor naturally induce the creditors to belive with the by-laws endorsed on the back, to have in his possersion 56,000 official at No. 51, Queen's Road Central and that the debtor intended to suspend pagare illegal 48 wagering contracts Bordoses of cocaine: (32 ounces valued, at hith cash for 500 shares in the meat of his debts and therefore amounted the purposes of the argument thate 258.). When arrested he offered a Chinese China, Provident Lean and Mortgage to a nation that he was "about to suspend sasumed that the Act of 2733 (Geo detectiva, a bundle of notes which ho Company, Limited. The above-named payment," within the meaning of the sub-e. Sy is in force here. It was as a fact described as tea money," The detective debtor informed me that he had no shares section..,

repealed in England in 1880. I need only took the money and at the station it was and that he was going into bankruptcy daily, I notice that it was a circular further observe on the point that there is counted and the amount was ascertained ho had not even enough money to pay his addressed to all the creditors, but having nothing in Er parte Garden 89 Sol to be 838 workmen."

regard to the terme of the sub-section and Journal 200 that has; I think, any bearing At the Magistracy, on Saturday mor the authority of Be parte Nicoll, notice to on this case, tay one of his creditora pufficient.

ing, before Mr. Landacil, two charges, were Lord Selborno LOJ, adopted the langu-

preferred against him; poescion of the age of Bowen LJ, in re Lamb, to which

cocaine, and offering a bribe to a com- I have already referred, in the true test,

table What effect should the circular produce on the mind of a creditor receiving it as to the intention of the debtor with regard to his creditors 12

THE ALLEGRO BELAOR OF DUTY BY THE

On the further point I am asked, owing

to the circumstances of this caso ne dis said that he noticed the defendant's cloth Evidence was given by the detective who closed in the cross-examination of witing balging under the arms. He con nocecs, to refuse to exercise jurisdiction firmed his suspicions by running his hands. in bankruptoy, and it was suggested that over the war's clothing. It was then thas

other sufficient cause has been shown the man offered the bribe within the meaning of sec. 7 (4) of the The defendant said that a passenger on

WAS IT A NOTICE OF SURPESSION 1 Now, the debtor was not called and there was, practically no cross-examination of these witnesses on this point. The fore going evidence, therefore, remains un. challenged, and I have to decide whether it amounts to a notice of suspension Fet payment within see. (1) (1) of the Ordin: ance, that sub-eretion is taken verbatim Lord Watson said "The Bankruptcy Act from the Imperial, Act (The Bankruptcy 1883, does, not prescribe my form of words Art 1883).

a notice under" bec. 4" (1)^(h). It there Bankruptcy Ordinance to justify the dis one of the vessels asked him to carry the The learned counsel for the debtor subfore appon to me that any notice will misal of the petition. The authorities princkages for him from fing him $10 for mits that a declaration by an outside be sufficient which is exprewed in the are collected in Williams on Back 90 for his trouble. He did not know trader to sharebrokers of his inability to terms calculated to convey to ije renipients ruptcy, p. 55, which indicate the views what the contents of the packages were pay is not a notice of suspension of pay. the information that their debtor has taken by the Courte as to the words: The Magistrate: Oh, I seo then you ment, with in the meaning of the suberc auspended or in about to suspend payment other sufficient cause and they show, must have known it was contraband. tion. He contended that there in a dis of his debts

I think that the words are construed asWhat's the good of saying, that you did tinction between ordinary creditors in the Both of the noble and learned Lords, being ejusdem generis to the preceding net For for all packages to be car ordinary course of business and between in a mirte Castler, repudiated the con words in the sub-section. No authority ried about 100 yards you were to get 820, broker and creditor, and that no ordin- tention that the declaration ought not to was cited to me to show that any breach hit frishes you. You are convicted on ary eredator was called to prove notice off be treated as an act of bankrapte under of duty, if such existed on the part of a the first charge suspension of payment. The learned sub-action if because the Legislature petitioning creditory is a ground for dis- On the charge of offerin councel relied on a casos: -(1), Bo parte by sub-section (1)- provided as an act missing a petition within the meaning of the cust Oustler ve Friedlander 13 Q.BD $71, (2) of bankruptcy, the filing in Court by the the sub-section Cloughm. Samuel 1000 4.01 TEGE

to the

dietor of a declaration of his insolvency. make an order for a receiving orde his

1933.

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• 2, 01

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