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November 4, 1899.] accordingly." Let us now consider the some- what voluminous evidence of the thirty witness es who have been called in this case and then it will be for you to consider what facts you find proved and to give your verdict accordingly.
His Lordship then went through the evi- dence.
The jury retired to consider their verdict, and after an absence of five minutes they returned with a verdict of not guilty.
The prisoners were accordingly discharged.
30th October.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR W. MEIGH GOOD man (Acting Chief Justice).
IN THE MATTER OF THE HONGKONG AND WHAMPOA DOCK CO., LIMITED, AND IN THE MATTER OF THE COMPANIES (MEMOB- ANDUM OF ASSOCIATION) ORDINANCE, 1890.
879
CHINA OVERLAND TRADE REPORT. Chancery Division p. 538) show that it is pro- regarded the other $5,000 it had been paid to per to impose such a condition when the altera-wipe off a debt due from defendant to another tion makes a name which was appropriate before person. If defendant had sued the ganrishes no longer appropriate, But, in the present for the $5,000 the garnishees would have had case, especially as alterations in the names of complete answer by saying, "I owed you $5,000, companies are apt to create unforeseen difficul. but I have paid $5,000 at you request for you, ties, I do not consider it necessary for me to and therefore wiped off the debt." impose any such condition. I accordingly confirm the alteration proposed and set forth in the petition. A formal order may be drawn up in accordance with the Judgment.
1st November.
IN APPELLATE JURISDICTION.
BEFORE THE ACTING CHIEF JUSTICE (THE Hox. W. M. GOODMAN) AND THE PUISNA JUDGE (MB. JUSTICE WISE)
NG YUK (APPELLANT) V. LIU YEE (RESPONDENT,)
Mr. E. 8. Sharp (instructed by Messrs. Mou- usey and Bratton) appeared for the appellant.
In reply to the Aoting Chief Justice, respond. ent said she had no further evidence to call.
Mr. Sharp said he moved for leave to appeal
by way of rehearing against the decision of Mr. Gompertz, Acting Police Magistrate, given on the 9th day of October, whereby appellant was convicted on the charge for that he feloniously did steal one gold ring of the value of $20, the property of complainant, on the 8th October, and was sentenced to a term of one month's im-
This was a petition presented to the Court to confirm a special resolution of the Company, daly passed and confirmed at extraordinary meetings held on the 3rd July last and the 19th July last, altering the form of the Company's constitution by substituting a memorandum of association and articles of association for the Company's deed of settlement dated the 29th August, 1863, and for all regulations of the Company subsequently made and now in force.
The Hon. H. E. Pollock (Acting Attorney-prisonment with bard labour on the ground (1) General), instructed by Messrs. Deacon and Hastings, appeared in support of the petition, no one appearing to oppose it.
His Lordship delivered the following judg.
that there was not sufficient evidence to warrant the said conviction in fact and (2) that the said conviction was against the weight of evidence. He made this application under the Magistrates
the depositions be not put in.
The Acting Chief Justice said he did not
Case
Mr. Slade-In other words, be said I admit the debt, but I have a complete answer because I have a set-off. It is for him to prove his set- off.
The Court held that it was for Mr. Slade to prove his case. He accordingly called the garn ishee and other witnesses, but their evidence not being favourable he decided to discontinue his case.
The court held that under section 82 sub. section 18 of the code there existed no property in the hands of the garnishes subject to attack- ment under the writ and no debt dne from the garnishes to defendant. The appeal was there- fore, allowed.
2nd November.
IN BANKRUPTCY JURISDICTION.
BEFORE HIS HON. W. MHIGH GOODMAN (ACTING CHIEF JUSTICE).
RI JOHN MOIVER,
Bankrupt applied for his disobargo under section 27 of the Bankruptcy Ordinance, 1897.
His Lordship said-The bankrupt carried on the business of a chemist and druggist at the Pharmacy, Queen's Road Central, and fil- ed his petition in bankruptcy on 15th Febru
last. ary
The immediate necessity for this pe
from whom the debtor purchased the business, to enforce payment of the balance of the pur- think they need trouble Mr. Sharp any further.
chase money which had remained unpaid since 1897. A receiving order was made on 20th February, 1899, and the debtor was adjudicated Although he had only shortly" oponed, his learned brother and himself had read the whole bankrupt on 18th April last. His public ex- of the evidence very carefully through, and
amination was concluded on the 7th September had come to the conclusion that although the last, and he now applies for his discharge. It was a very suspicious one the evidence appears, from the report of the Official Receiv- was not satisfactory to the court and they er, that the total dividends will not amount to thought the conviction should not be upheld. more than 30 per cent, and that the only mat
ter with regard to which any blame can be at- No doubt by the Magistrates Ordinance the
tached to the bankrupt is his omission to take court might dismiss the appeal or grant a re-
stock at regular and proper intervals, so as to hearing, subject to such terms as it might think
know his position as a business man. There is fit, but as the respondent was in court and said
no imputation of any fraud or extravagant liv. she had no further evidence it would be a pure waste of time for that evidence to be recapiting. He started the business with insufficient no fresh eri- capital and with borrowed money, which the | ulated there.
dence forthcoming on the rehearing the result profits have not enabled him to repay. In all The court thought it the circumstances, the Court grants an order of unnecessary, therefore, to require a re-hearing, discharge but suspends its operation for a term and they thought the appeal should be allowed and the decision of the Magistrate reversed. They did not attach any blame to the Magistrate. The case was one no doubt of grave suspicioning and one which different persons might have different views of, but they thought the benefit of the doubt should be given to the prisoner.
As there was
would be the same.
of six months from this date.
RE CHAN A MAN,
Chan A Man (alias Chan Chap Shan), carry
on business as Kang On Wo, also applied for his discharge.
ment:-This is a petition by the Dock Com. Ordinance No. 10 of 1890₫ He applied also that, | tition was a writ issued by his late partner, pany, under Ordinance 25 of 1890, asking the if their Lordships saw t to order the rehear- confirmation by this Court of a special resolu-ing, the evidence be taken de novo, and that tion of the Company, referred to in paragraph 11 of the petition. The object of the petition is to enable the Company to substitute a memo. randam and articles of association for the old deed of settlement, which does not quite suit the present requirements of the Company. The Dook Company appears to have prospered and to be in a flourishing condition and consequent- y to have need of a somewhat broader constitu- them than that conferred by the original deed of settlement. Before confirming an alteration of this kind the Court is required by the Ordin- ance to see that certain preliminary conditions have been complied with by the petitioners, to see that proper notice of the application has been given to the various classes of people whose interests might be affected by the alteration proposed. Mr. Pollock, who appeared in support of the petition, has satisfied me that the necessary advertisements have been issued and proper notices given; and the fact that no one appears here to oppose the petition :strengthens me in the opinion I have formed from a perusal of the proposed memorandum and articles of association, as well as of the old (deed of settlement, that the alteration in the constitution of this company ought to be sanctioned. Accordingly I confirm the special resolution and sanction the proposed substitu- tion of a memorandum and articles of association for the deed of settlement. In the course of the proceedings the question of whether an alteration ought to be made in the name of the company was mentioned. I was informed that the memorandum of association practically makes no alteration in the local limits of the possible | original case. sphere of the company's operations. They could carry on business in Hongkong and eles-member that they had the case before them on where before, and can do so, if they please, in the future under the new constitution. If the new constitution had restricted the authorized area of the Company's operations so that they could no longer carry on business at Wham- pos, even if they desired to do so, then, it appears to me, it would be proper to alter the name of the company by omit ting the words "and Whampoa ' and to make that alteration one of the conditions re- ferred to in sub-section (3) of the first section of the Ordinance. The cases of "In re Foreign and Colonial Government Trust Company (Law Reports, 1891, % Chancery Division 395) and "In re Indian Mechanical Gold Ex- trasting Cɔmpany" (Law Rɔports 1891, 8
11
"
P.
|
The appeal was accordingly allowed without costs.
THE SHAU OH) tong (appelLANTS) V. THE HING CHEONG (RESPONDENTS). In this case the Hon. H. E. Pollock (in- strnoted by Mr. Bowley) appeared for appellants, and Mr. Slade (instructed by Mr. Ewens) for respondents, the latter being the plaintiffs in the
Mr. Pollock said their Lordships would re-
the 12th April this year, when it was adjourned sine die,
The Acting Chief Justice said that this was the position as he understood it. There was a debt of $10,000 due from defendant to plaintiffs, or rather $16,000 was sued for, and judgment was obtained for that sum against defendants, That judgment stood and there was no appeal from it. Then the question came, how are plaintiffs to be paid? The Shan Cho Tong were put in as garnishees and plaintiffs alleged that the Shan Cho Tong owed the sum of $5,000 to defendant. It was admitted by the Shan Cho Tong that at one time they borrowed $10,000 from defendent, but it was contended that it had been repaid-$5,000 by sotual cash and as
|
His Lordship said:-This is also an applia. tion for the discharge of the bankrupt, who formerly carried on business as a merchant exporting rice and sugar to Japan, importing, through his local agents there, general mer- chandise. His Hongkong office was in Bonham Strand West. He filled his petition on 7th April, 1899, in consequence of writs being served upon him by rice and sugar merchants. The adjudication in bankruptoy was on 7th September last, and his public examination was concluded the same day. The dividend is not likely to amount to more than five or six per cent. It appears, from the report of the Official Receiver that the bankruptcy is to be attributed solely to losses in business operations amounting to 854,000 owing to the sudden fall in the prios of rice in Japan in the early part of this year and at the end of last year. In other words, the bankruptcy may be attributed to business misfortunes. The books appear to have been accurately kept and the bankrupt appears to have rendered every assistance to the Official Receiver in the bankruptcy proceedings. In the circumstances, the Court grants a discharge, but on account of the smallness of the dividend, suspends the operation of the order as by law. The period of suspansion will be six months.
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