November 11, 1896.1
are alleged to have been transmitted to the Registrar of the Judicial. Committee in the month of August last. So it may be taken that that appeal will at no distant date come on for hearing by the Judicial Committee of the Privy Council. Now, then, the question is, what will the Judicial Committee do on the hearing of that appeal? It is contended by Mr. Francis for the plaintiffs in this suit that the Judicial Committee will disregard the proceedings with regard to the counterclaim on the ground that the Court has no jurisdiction to entertain that counterclaim and no jurisdiction to make any order upon it. Well, of course, that may be so or it may not be so. It is difficult to say what the Judicial Committee will do, and I cannot take it upon myself to say whether the contention of the learned counsel | is well founded or not. Any way, it appears to me that the Judicial Committee must "deal with the case of the claim of the Normandie against the Pekin. The Shanghai Court dismissed that claim and held that it was un- founded. The Committee must either affirm that decision, holding that the Pekin was not to blame, or reverse it by holding that the Pekin was to blame; or it may take a third course by holding that both the vessels were to blame. However, the Judicial Committee will pronounce an opinion more or less decisive on the merits of the question now in controversy- whether each of the steamships was liable or whether both were liable for the collision. Well, of course, it may be that the Judicial Com- mittee will hold that the Shanghai Court was right and that it ought to have gone further and entered up judgment for the defendants on the counterclaim. I say it is possible: I do not say whether it is probable or not. In any case, as I said just now, the real merits of the controversy between the parties clearly must come under the cognisance of the Judicial Committee. Well then, the question is, what is the right thing to do between these parties in respect of this application to stay these present proceedings? These present proceedings un- doubtedly and admittedly grow out of the same collision, and it is for the Court now to say, looking at the matter from the point of view of the plaintiffs and looking at the matter from the point of view of the defendants, what is fair and right to be done between them with regard to these present proceedings, having regard to the fact that it has been in controversy and still is in controversy in other courts competent to deal with it. Cases have been cited on both sides more or less which do not strictly apply to the present case. They were all concurrent cases-proceedings taken in one court and then in another and the question arose in those cases whether those double proceedings were so harassing and vexations that one set should be stayed. This is a different case. This is a case of an action having pro. ceeded for judgment and the judgment having been given and thereupon an ap- peal takes place from the Court pronouncing the judgment to the Appellate Court, which Appellate Court has also jurisdiction over the Court in which this action is now brought; that is to say, the Supreme Court of Hongkong. | The position appears to be this. On the one side the present plaintiffs, the owners of the Pekin, have obtained a judgment in their favour in an action brought by the owners of the Normandie against them and exonerating them from liability, and they have also obtained in that counterclaim what I may call a dry declaration that the Normandie was to blame and so far liable for the losses and damage occasioned to their ship by the collision. The plaintiffs in this suit ought not to be lightly divested of the advantage they have so far gained in the proceedings in respect of this col- lision, as they are in the better position. On the other side, the plaintiffs in that action and the defendants in this, the owners of the Normandie, allege that the decision was a wrong decision and that they are entitled to have it reversed and to have it held that the Pekin was to blame and is liable for their loss and damage. As I said just now, what is the right course between the for the Court to take? I was much pressed during the argument, and I have been all through, with the inconvenience and I might almost say the impropriety of this Court
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accept these terms as they stand I will give them time to communicate with their constitu...” ents at Shanghai in order to ascertain what their views in the matter are. If they are not willing to have the order on these terms I will make also a condition that the stay should be until the decision of the appeal is made or until the further order of the Court. It is possible there may be reasons why we should not wait until the appeal. It is not likely, but I think in that the order should be recorded way. I have given anxious consideration to the case and I think that is a course that will give the least injury to either party and will be the most convenient.
Mr. Robinson-Will your Lordship put the terms in writing ?
His Lordship-Very well, I will make a note of the order, The order is not pronounced to- day; its final pronouncment will await until you have heard from Shanghai, which will he in about a fortnight's time.
Mr. Francis-How will your Lordship deal with the costs ?
His Lordship-I think I will order costs of the cause.
The Court then adjourned.
5th November.
IN BANKRUPTCY.
BEFORE HIS HONOUR DR. CARRINGTON (CHIEF JUSTICE.)
IN RE FRANK WAPSHARE WATTS. In this case the Official Trustee made an application to annul a scheme of arrangement and to adjudicate the debtor a bankrupt. Mr. Grist appeared for the debtor.
The case was adjourned from last Thursday in order to give the debtor an opportunity of assisting the Official Trustee and Committee of Inspection.
The Official Trustee. (Mr. A. Seth)-I am glad to say that the debtor has given us all the assistance and information in his power. I bave, therefore, nothing further to do in the matter. I wish to remark, however, that there will be practically nothing for division amongst the unsecured creditors.
entering upon the hearing of the decision of the case which is now under appeal to the tribunal which exercises jurisdiction over this Court, especially having regard to the fact that in the ordinary course of things the
of hearing the appeal will take place at no distant time. That is the general impression that has been on my mind during the whole of these proceedings. On the other hand, I have been impressed to a considerable extent by Mr. Francis's argument that it is probable that in any event, whatever view the Judicial Committee may take of the proceedings with regard to the counterclaim, the plaintiffs in this action, the owners of the Rekin, will not be able to get any material benefit or advantage from the declaration of the Shang- hai Court in their favour, and that their real remedy lies in this Court by proceedings in rem, It is clear that if that is so, if there is a probable ground for holding that that result will take place, this Court ought to consider very carefully before it stays proceedings go as to involve the loss of the plantiffs' remedy in this Court by proceedings against the vessel. Counsel for the plaintiffs alleges that their remedy at Shanghai is dead and that the real remedy is in this Court for the damages sus- tained. If reasonable and probable ground is shown for putting forward that conten-. tion I think the Court will be very reluctant to do anything by stay of proceedings in this action depriving the plaintiff of tangible and substantial damages which he says they have in this Court. That undoubtedly is the princi- ple which regulates the conduct of this Court in dealing with the stay of proceedings in vexa- tions and harassing actions. It is clearly laid down that the Court must not exercise that jurisdiction when the case involves loss or in- jury to any litigant. On the whole, I think, as far as I can form an opinion, that the Shanghai Court has either found it had made a mistake in dealing with the counterclaim as appears from the records or else for some reason declined go to the length of entering judgment for the owners of the Pekin on the counter-claim and left them practically with a declaration that the Normandie solely was to blame. Nothing clearly can be done in that as it stands, and it appears to me probable, to say the least of it, that the Judicial Committee may decline at any rate to go any further. They may say they will not go beyond what the Shanghai Court did and that they will affirm their declaration and not give judgment on the counterclaim. If so it is clear they could not obtain execution and enforce that declaration in the Shanghai Court. On the other hand, it appears to me that the defendants have a fair right to say to the Court that the case has been tried, that a decision has been come to, and the question of the decision is now before the proper tribunal to deal with that question, and they ought not to be put to the expanse and trouble of another trial. Looking at the point of view of both the parties it appears to me that the right and proper course is to allow the plaintiffs in this action, the owners of the Pekin, to have the benefit of the decision which has been given sa far in their favour, and on the other hand not to put the defendants to the expense and trouble of another trial whilst there are proceedings pending in which they may be successful and which would set the question finally at rest. And the best way to give effect to that view is to order a stay of proceed ings only upon terms. I think there is an- thority for saying that in cases of appation made to the Court to exercise its discretion the Court may grant what is asked for, subject to terms and conditions, and the way that I propose to deal with the application is to preserve the status quo as far as possible and at the same time give effect, also as far as possible, to any decision which the Court may pronounce on the hearing of the appeal. The way in which that may be done, I think, is by ordering a stay of pro- ceedings in this action until the decision of the Privy Council is known and subject to the condition that the defendants consent that, in
His Lordship-The scheme for what it is the event of the Privy Council forming a decision on the Court in Shanghai, judg-worth has been carried into effect P
The Official Trustee-Yes, but some of the ment should be entered against them in this Court subject to the assessment of damages. creditors seem to have been rather disappoint If the defendants do not see their way to If they had known that the estate was not
His Lordship Everything has been got in? The Official Trustee-Everything that could be got in has been got in.
His Lordship-What about the pending I mean the question? Is that still open? compradore's security.
The Official Trustee-That is settled, my Lord. There is conflicting evidence in the matter as to the quality of the iron, and the Committee of Inspection and myself cannot see our way, as we have no funds, to pay any costs.
His Lordship-And the debtor has placed· himself entirely in the hands of the Committee and yourself?
The Official Trustee-Yes, my Lord.
His Lordship-And has rendered you all the assistance you required?
The Official Trustee-Yes. I should like to say something in reference to the remark made by Mr. Grist about the account from the Bank which he said had been in the hands of the Committee and myself for over a month before Mr. Watts went away. Upon looking at the ac- count I find that the statement is not a fact. We had the acconut only three days before he left the colony and consequently we had no time to look into it before he left. I should also like to speak in regard to the absence of one of the Committee of Iuspection, Mr. Cottam one of the creditors who signed the application. Of course he was present when nearly two-thirds of the creditors met and came to the decision that the scheme should be annulled, but his absence the other day was owing to his having gone to Shanghai on business,
His Lordship-Do I understand that you wish to withdraw the application to annul the scheme and to adjudicate the debtor a bankrupt?
The Official 'Trustee-I do not see that any thing can be gained by adjudicating the debtor a bankrupt.
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