1924-12-11 — Page 5

Page

WHAT IS A LIMITED COMPANY ↑

THE HONGKO

China Company new Order

Now what is a limited company! It cil, 1913,

the

Articles 8, 9, 10

the eases referred to

cases and it was exercised in every cass to

DAILY PRESS,

be met with Gränsaction intron- itration, and whe

that What chit defence Toy" piesling perfor

THURSDAY, DECEMBER.

SUMMARY

A FRENCH LADY'S WARDROBE.

„MILLINER'S SUCCESSFUL. 81,000

GIMNEMON

An artificial person, a legal entity Thirdly, quite apart front the shareholders of this power was exercised wore wartime whom it is composed its nationality in darived from the place of its incorpora- as a means whereby some other essential could be was never disclosed, and tion and has othing to do with the facts were determined in the Daimler the transferee be heard in nesse like nationality of its shareholders. This has case to discover control and therefore this to plead it in anawer to an action Bonn the conception of English law for enemy character: in the Polzeath coas to against him for specife, performance P

An interesting claim for goods deliver- But assume that -British subject fromed was heard yesterday morning, when long time and I need only to refer to discovery where the real residence"

Dreifontein Miner (1809 A.C. of the Compary was in the St. Tudno wheen protection has ben withdrawn * Madame Flint, milliner, of China. Build. 454) and the Daimler case (1916 A.C. to discover who were the roal owrers for ineligible as & Crova lesme, and this ing, sued Madame Gavin, of No. 3. Peak 807);' in both the nationality of the Com Court purposes of a ship. The part of the argument can only apply to Rotil. for $1,000 and costa

Rearcat, approach to any case like this British subjects. I am not really called T. Prior appeared for plain, pary concerned as distinct from that of that I have discovered is a Arnaud upon to decide that. I am asked to say if and Mr. Macnamara for defendant, its shareholders was insisted upon. The (10. LJ. QB. 80), where Custom House upon the authority of Phillips

3. Prior mid that Madame Gavill Best other important cala E would mention is

officials were ordered to register as a (L.R. & Q.B. 1) that such a withdrawal the Folzeath (1916. P. 117 and 241) British ship one owned by corporation, has a retrospective effect. Now that Flint in 1009, in Hergkong, and in oponed a private account with Madama when a ship was forfeited to the Crown even though the members of that corpors and I see nothing in the judgment of Oct, 1993, 3: Gavin lost his situation in

was decided with reference to a Statute, under the Merchant Shipping Act. Now tion were foreigners and therefore in the Court of Queen's Bench to lead me the Colony, and went to Canton, Madame in these cases it is clear that the Court that case is still quoted as being good withdrawal of protection can have allowing her to manage snow branch

capable of owning a British ship. And

to the conclusion that an executive act Flint agreed to help Madade Gavin by went behind the certificates of incorpora law to-day. The Chief Justices deliveri, tion and ascertained the nationality of ing the judgment of the Court said the retrospective efect alleged bere. It shop in the Shameen. She was to receive a appears to me that the rights of the salary of $100 per month, and Madame the shareholders, but in was not regard. It was contended that the effect might parties were fixed by the conveyance and Flint was to pay the rent and supply the ed as important in Janson's case, da

beto defeat the object and policy of the refusal to register in August, 1923, stock. The mount alamed was for the navigation laws onssmuch as the in and no withdrawal of protection in articles missing from the stock when de rationality of the Company remained dividual members of the British Cor December, 1923, can affect them. It is feadant gave up the managemant Transvaal, it was important in the Poration might either originally or by worth noting that this point was not sug Daimler Caso to show what the real con- transfer be all foreigners. Such does not geated in any way by the Consul General: trol was whether the British Company appear to be contemplated or provides indeed it could not be. He seems to was tainted with enemy character in the for by the Act in question. As have correctly stated the position in his Polzeath to show where was the pric- the case atards it seems to me that the letter of August 13th, 1923, that there cipal place of business of the Company British Corporation is to all intants the are no Regulations governing transfer of And the same principle has been applied legal owners of the ressti nad entitled Shameen lots besides the Land Regula in the Prize Court: see the St. Tudno (2 to registry, and that we cannot notice tions and the terms of the Crown Lease. Prize Cases 272, 1916, P. 281) to decide any disqualifications of an individual the rent ownership of a ship. member which might disable him if owner The Daimler case really decided that from registering the ship in his oxa

name." Limited Companies can become affected with qualities just as natural people. And a preemptory mandamus went can. But no case goes to he length of it may have been in consequence of thisIt was suggested that the British Con- saying that one can go to the nationality decision that the restriction (now gone) cession is in the nature of a manor of the shareholder to determine the on transfer or mortgage of British ships in England and that the Consul General nationality of the legal entity, the Com-to foreign controlled companies war occupies the position of a Steward of pany. And jurisdiction in China de enacted during the war. I entirely fsil pentis on nationality. As long, then, as to see how it can be contended that this the restriction on transfers, elc, in Bha. British Bank previously described by mn meen are said to depend upon the nation can come within the clause "Native of ality of the proposed transferee,c., China" merely because some of its share upon the British jurisdiction to be exer- holders and/or directors may not be or cised, over him (which was the only even are not subject to British jurisdic-1 matter put to me, and indeed on the tion in Chira. Such a doctrine would

I must deal with one other plea which correspondence the only matter that affect many other companies What is appears on the Record (paragraph 9 of could be put)-so long does it appear to be done with companies who have the Defence) that the action it barred that one is not entitled to go behind Americans. Frenchmen, Germans, Busby reason of the Public Authorities Pro- the certificate incorporation. The Daim-sians or Australians on their share tection Act 1883, expressly applied here fer case is the case which lays down the sisters? Nor do I know how to ascer by Order in Council, 1904, Article 197. principle upon which a Court is entitled said the proportion of shares which will No argument on this plea was addressed to go behind a certificate of incorporation turn this British entity into a Native to me by the Crown Advocate but he did of a Compary. It was argued there, as of China" is it one-third, one-half, not state that he abandoned it: it was here that the Court had no right for eighths or what ! And how is one to deal argued by the plaintiff counsel. It is any purpose to go behind the certificate with the constantly fluctuating character of incorporation. Lord Parker showed of a share register I do not know about enough to say that it seems to me that (pp. 343/343) that, it was clear that many the pinintiff Bark, but I know Bank the act of which complaint is now mnde in this case is the refusal to register a eminent jurists had not found it contrary shares in England are constantly chang-particulae transfer in August, 1923, and to principle to look, at least for some ing hands, and the nationality of the that therefore this action, asuming it purposes, behind the corporation and con- shareholders in any limited company sider the quality of its members And may. And no doubt does, vary from day to be one to which the Act applies, was

within time. he further pointed out. (p. 341) that con- to day

tion"

"

JURISDICTION REMAINS.

I desire to emphasis again that, matter when protection is withdraw jurisdiction still remains in full,

The shop and goods were handed over to x Miss Noronha, who carried on the business. Defendant was at liberty to buy goods out of the stock at cost prices. When Miss Noronha took over, & list of the stock was taken, and it was found that & quantity of goods was missing. Some of these goods defendant was soch to wear and others she admitted wearing. Defendant alleged that the goods were nosest to this and that person, but thes

people knew nothing at all about them.

Mr Maocamara said that the defence was that the defendant's husband was in charge of the business. You

manor. I know not where the idea comes from, but I find no trace of it in the legislation or in the leases concerned, and it does not seem to assist the case of the defendants at all. Whatever tenure in a Concession may be it is not copyhold

tenure.

Madame Flint, giving evidence, said that she had known defendant and her husband for about four or five years. When her bushand lost his posi tinn she thought she would help Madame Gavin by appointing her macageress of the Shameen shop.

Mr. Prior At the time of the appoint ment was her wardrobe fairly well c do you know!

His Lordship: A woman's personal wardrobe is never adequate.

M. Durant gave evident as to defend art taking over the management, and Baid about a month and half later he visited Shameen to take stock, and foure the goods missing.

Mr. Macnamara put to it witness tha Madame Gavin was down in Hongkorg for days on end, when it was stated that she was working in the shop up to ver late hours,

Witness replied that that might have Mr. Macnamara pointed out that the revideree as to the delivery of the goodE was not disputed. Ma

been so.

His Lordship gave judgment for plain.

DRAFTS FROM LIVERPOOL TO,

HONGKONG.

REPAYMENT OF £100 CLAIMED.

ACTION DISMISSED.

sierations which govern civil liability and NO POWER TO REFUSE

POLICY IN RELATION TO LAW. Mr. Prior said that it was true rights of property in times of peace differ radically from those which govern enemy I therefore bold that there is no power Upon the policy underlying the refusal Mr. Durant had approached the husband character in time of war. He disagreed in the Regulations to refuse this trans to register this transfer which formed of defendant for payment of the bill. The agreement, however, was between the ((p. 340) with the view of the Court of for, nor in the Crown Lease, as the pro- the larger part of the evidence of Sir plazhill and Madams Gavin, and it whe Appeal that, where the law was concern-posed transferes does not come within the James Jamieson, it is not for the Court purely bluff appealing to the husband, ed with the artificial persons, it was to restrictive covenant. But it is then said to express an opinion: I am only con These things were not necessities, and to know nothing of the natural persons who that the Secretary of State may with cerned with the law. If the law bas not constitute and control it. And he went draw protection from the Bank and that provided for that policy, it is the fault go to the husband for payment was hope less. Mamade Gavin, was responsible for is enough in itself to make the Bank of the legislature. I can only administers whole of the bill and he would appeal In questions of property and capa religible as a Crown lessee. I do not the law as I understand it, irrespective to His Lordship for judgment against city, of acts done and rights acquired or know where this theory came from. It of the views of the Executive as to what

the defendant. Jiabilities assumed thereby, this may be true that the Secretary of State Ans the law ought to beIN always true. Certainly it is so for the draws protection from this Bank and think I have dealt with all the points tiff. most part. But the character in which thus emphasized its British nationality raised and argued in this case. I think property is held and the character in in a letter dated some two months after the Consul-General was right when he which the capacity to act is enjoyed and this action was commenced a step not, said that the only matters that concerned acts are done are not in pari materias far as I am aware, communicated to this trucsfer were the King's Regulations The latter character is a quality of the Via or any one else. I do not at and the terms of the Crown Lenae, I company itself and conditions its capa tempt a definition of what" protection

only want to add this: the case for the milite and it acts and if that means, and has not been referred to defendants has been based throughout, Character mast be derivable, not from the y case or textbook upon it; but I know as indeed it had to be upon the assump circumstances of its incorporation which it is different from recognition (see tion that the sole object of the legislation arise once for all, but from qualities of Crders in Council, 1904, Article 162 (10), and the restriction covenants was to A case involving the sending of a 2100 anmity and amity, I know not from what 1921, Articlo 3 (0), and 1913, Article 51), ensure the exclusion from Shameen of all draft from Liverpool to Hongkong, was human beings that character should be and it has nothing to do with jurisdic persons, Chiness or other, who were not heard yesterday afternoor Plaintiff, As derived if resort is not to be

The withdrawal of protection subject to British jurisdiction and con- F. Lee Yow, of Liverpool, sued Woon had to the predominant character of the does not subject the individual concerntrol in China; and upon that basis Kew, Secretary of the Yer Woo Tong

ed to the jurisdiction of the Chinese have decided it shareholders and corporators."!

Seamen's Club, 28, D'Aguilar Street, for It is suggested here, therefore, that on B.B.M. Coart in China. I suppose it

Courts he can still un ard, be sued in a doubt" has been suggested against the repayment of £100 sent by him to hir that doctrine the Court is entitled to go means at least the giving of help to for the bonafides of the transaction between brother, who was travelling in Hongkong. behind the certificate of incorporation ward intercsts and to resist impositions declaration naked that the Bank of East Plaintiff, and the defendart was repre- the two plaintiffs. I therefore make the Mr. N. I Brewer appeared for the of this Company for the purposes of plac but it is au sormous step further to say Asia, Limited, as assignee under an In- Mr Brewer said that in 1920 a man

sented by Mr. H. 8. Fitzroy ing a meaning upon words which it is the withdrawal of protection" from Is admitted only refer to jurisdiction: nas withdraws from him legal rights denture of August 7th, 1973, of Lot No. uamed Li Fume to Bengkong for & words that have been in such lenses in that he has already acquired and even 52 B. in the British Concession of Sha holiday from England, and during that this connection since, 1861. I can see no subjects an innocent third party (e.meen, is entitled to have the transfer to time plaintiff (his brother) forwardil thing which leads me to such a conclusion Vasanin in this case) to pains and it of that Lot made in the books kept demand drafts to Hongkong, which came in the doctrine above laid down. And it penalties (see paragraph 11 of the de- General at Carton And, if it be necessant a draft for £100 in August 192

for the purpose in H.B.M. Consulate from invested property in England. He in to be remembered that mary, if not fence). It is a claim that somewhere in most, of the directors and shareholders protection is hidden the right of the sary, an order in the nature of a man- but in September of that year Li Fo of this Limited Company (which as far executive to chject to a proposed trans- damus must go. as I am aware might have been formed fer or mortgage of a Crown Lease and in Englandy are recognized by the that, without any notification to the British authorities as British subjects, public, of the right, nor any notificatio however diffent it may be to enforce of the actual exercise of it. It may, that recognition in China.

"us is contended, that such a right ought to exist... I am not concerned with that one way or the other; but it is not the The matter is put thus no assignment lair, with which alone I am concerned, of this lease can be made to a Nativa that, because it ought to exist, therefore of China" this being a Crown Leang it does exist.

ASSIGNMENT OF LEASE.

these words are to be construed in favour NO LIMITATION

QUESTION OF APPEAL

Mr. Holborrow then raised the ques ion of costave

Mr Pratwood objected to costs being given in this case, since he contended that by law the Crown could neither pay nor receive costs

returned to England, and never received the draft which was addressed to him care of " defendant. When Li- Fn, re-

turned to England he told plaintiff that he had hot received this £10 He told plaintiff to write for ita return, and Li Fa" wrote to defendart ssking him to return it to Lee Yow. The dealt whs not returned by defendant, and in 1992, after The Judge held that in this case the the death of Li Fu, plaintiff wrote to the defendants were sued not merely as ser-Chartered Bank, and inquired whether vants of the Crown, but as servants of the draft had been eashed. The reply he the Crown exercising their public duties rebivad was that the money had been

of the Crown (a position with which take it, whatever protection towards the public as such, and it seem paid over in February, 1991 before: Li

fully agree, though it cannot be pressed

Loo far); sce 10 Halsbury 443 Jenks, para it can be withdrawn at any time and re-ed to him that the rule whereby the Fu knew of the existence of the draft graph 1933, and A.C. Ewelms Hospital granted at any time I know of no Crown either paid nor received costa Lee Yow now took the opportunity of (22 L. ch. 848); and therefore the limitation upon the grounds for which could cut apply in this case. Plaintiffs, being in the Far East on holiday, to Crown is entitled to go behind the certi- it can be withdrawn. Such a claim, then; therefore, would receive costa bring the action, ficats of incorporation to see the real as is cow put forward by the Crown Ad-

character of this Company; and when it vocate, if accurate not only Ruddenly. Mr. Wilkinson then raised the ques Mr Fitzroy submitted that there was discovers from that, that the in- lessors the value of these Crown Tses tion of appeal. He pointed eat to his no case to answer, and His Lordship corporators Browmany of them at by adding an unknown, and unforeseen Lordship that before ary steps to appeal said he was doubtful whether plaintiff's all events-persons who in China clog on the right of alienation, and more could be taken, the facts and records action could be maintained, but it would are claimed by the Chinese author gige, but it also would give the executive would have to be placed in much higher save time if Mr. Fitzroy put his evidence

before the Court. itics (not admitted by the British author a power to override the express terms of hands than his / In those circumstances The wife of the deceased, giving ori- itses) to be Chinese citizens and therefore the King'a Begulations Led the Crow be asked whether the Court, would agree not subject to the jurisdiction and con- lease For it is a claim to add to the to extend the usual period of 15 days done, said that defendant wrote to her trol of His Majesty's Court in Chira, restrictions on alienation some such allowed before any decision of the Court husband, stating that he had got the money, and that he was instructed to it is entitled to refuse this transfer, oven, clause na the following: '' Or to Bay were carried out

bankit pending Though sich persons have the cloak of in British subject from whom protection has The Judge replied that he could not deceased to Hongkong.

orporation as a British artificial per been withdrawn of to make every do this. The pediod of 15 days was a band's mother happened on My Arst comment on that is that transfer or mortgage subject to the ap fixed period during which defendants money, and begins This right to inquire into the nationality proval of His Majesty's Government (see could make their appeal to the

Bartholders is not given anywhere paragraphs of the defence) a position Council. It could not

the rialastro, where it is expressly which does not appear either in the reminded Mr. Wilkinson

In the caso at companies limited Crown Lenza or in the Regulations; and was given after se Order in Council, 1915, it is suggested that such i withdrawal of been made for the

14) "Beconlly it is a power protection with the results stated above, máre, Honwhil than is granted to the Registrar can be made at any time, and thus affect made delaying. Companies in the actual formation of a complete sale In other words that

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