July 30, 1904.]
CHINA OVERLAND TRADE REPORT.
The Hipsang was of 1658 tons register, and | in an unusually straightforward her foreign officers were Captain Bradley; Mr. A. G. Smith, chief officer; Mr. A. J. Cart- wright, second officer; Mr. F. J. Collier, chief engineer: Mr. H. Watson, second engineer; and Mr. W. Bishop, third engineer.
“TAKAKHIMA.
THE
"
On the 29th inst. at 6.30 a.m. a Japanese steamer, the Takashimu Maru, 318 tons, was sunk by the Vladivostock squadron off Isoya, about 25 miles east of Hakodate. The crew landed at the promontory of Yesan to take shelter, and they are all safe.
THE INDO-CHINA STEAMER "HIPSANG."
With reference to the various rumours aflost
steamer, regarding this
Messrs Jardine, Matheson have addressed us as follows: We beg to advise having received a tele gram from Shanghai to the effect that although no definite news has been received. our friends there are informed on good authority that the steamer was torpedoed by the Russians on the 16th inst. All the foreigners on board as well as most of the Chinese are reported to be saved and have been taken to Port Arthur. The steamer is fully covered in London against war risk. [Port Arthur as the destination of the crew looks like a mistake.-ED.]
SUPREME COURT.
Saturday, 23rd July.
IN BANKRUPTCY.
|
manner,
and I have come to the conclusion that he was quite ignorant of the debtor's financial | position at the time that he advanced him the money on the security of the shares. I think it comes within section 42 of the Bankruptcy Act, New Edition. The position simply is this: There was an act of bankruptcy committed upon which the petition was framed on March 5th, 1903; then a receiving order was made on April 28th. It has been shown that in addition to the special act of bankruptcy, mentioned in the petition, there was a prior act of bankruptcy | -that he had previously absented himself from the Colony in February. Therefore I think there was a previous act of bankruptcy in February. By section 36 the trustee's title prima facie relates back to the first act of bankruptcy, thus it relates back to February. Therefore prima facie any transactions by the bankrupt in February would be invalid, unless he is in a position to show that it is one of those transactions which come within section 42 of the present Bankruptcy Ordinance, No. 7 of 1901. Mr. Slade contends that it did come within the section as being a transaction, deal. ing. or contract made with the bankrupt for valuable consideration, and that it comes within the proviso that the transaction was to occur before the date of the receiving order, that is before April 23, and that there must have been at the time no notice of any available act of bankruptcy committed. I have come to the con- clusion that there was no available notice, from the way Li Chang Chow gave his evidence. He declared that he did not know anything cumstances it seems to be a protected transaction, and the result is that he is entitled to have his
BEFORE HIS HONOUR SIR W. M. GOODMAN about this act of bankruptcy. Under the cir-
(CHIEF JUSTICE).
ACTION FOR RETURN OF SHARES.
The Court took up the adjourned hearing, in the matter of Wong Tat Hing ex parte Wong Hoi Shan, of the application by the Official Receiver (Mr. Bruce Shepherd) for the surren- der of 15 shares in the Union Insurance Society of Canton, Ld., by Li Chang Chow. Mr. H. E. Pollock, K.C., barrister-at-law (instructed by Mr. F. B. L. Bowley, Crown Solicitor), appeared on behalf of the Official Receiver; Mr. M. W. Slade, barrister-at-law (instructed by Mr. J. Hays, of Messrs. Johnson, Stokes and Master solicitors), appeared for Li Chang Chow.
The case had been adjourned to allow of the following point being considered. Assuming that Li Chang Chow had no knowledge or notice of any available act of bankruptcy on the part of Wong Tat Hing on March 4, 1903, when the money was advanced on the security of the depositing of the shares, does the doctrine of the relation back of the trustee's title invalidate the transaction, if it was bona fide on the part of Li Chang Chow? It is to be assumed that Wong Tat Hing committed an act of bank- ruptcy on February, 1903, prior to the act upon which the petition was founded.
Mr. Pollock said that he was very anxious to do all that he could in the interest of the general creditors of the estate. He had looked very carefully into the point to see what course he would adopt. He had to confess, however, that the authorities on the point were so strong that he felt justified in assuming that Li Chang Chow would be entitled to obtain from the proceeds of the sale of the shares the money he had advanced on them. That being so he could do nothing further on behalf of creditors. It certainly seemed strange that the bankrupt should have borrowed the money on the shares only a day before he committed the act of bankruptcy, and in the interests of the creditors he thought the action should have been brought forward.
The Chief Justice-You are quite right. It was a very suspicious transaction for a man to get $7,500 one day, and then go bankrupt the next day. It was a matter which, in the interest of the public and creditors, should have been inquired into. Now we have done so, and, I am bound to say that I have not a shadow of a doubt that the debtor got the money from the purchaser of the shares and drew his money from the bank with a view of keeping it away from the creditors. There are two sides to it, however. There was no mercy to be shown to the debtor. There were certain transac. tions which were protected if they were bond-fide, and I am bound to say that in this case Li Chang Chow gave his evidence
$7,500 paid to him. I take it that the proper course will be to hand over the scrip to the Official Receiver, and that the Official Receiver will probably sell them, and out of the purchase money he would pay Li Chang Chow $7,500. Any further claim he must prove in the usual
manner.
Mr. Slade contended that Li Chang Chow was entitled to interest. It was a mortgage bearing interest, and the interest and principal He was were on exactly the same footing. in the same position as if he were suing for it. He sues on the mortgage of the shares for The terms were the principal and interest. practically the same as of any mortgage.
The Chief Justice-I should like to see some authority on that.
Mr. Slade submitted that it was a question of legal right.
Mr. Pollock agreed that he was entitled to interest.
the
The Chief Justice-Will the shares realise sufficient pay principal and interest?
Mr. Slade-No. There will be a shortage of $100, and this amount he will have to prove.
The Chief Justice-He is in the position of a secured creditor.
After further argument, the Chief Justice Bid-What I have to decide is: Assuming that Li Chang Chow had no knowledge or notice of any available act of bankruptcy on the part of Wong Tat Hing on March 4, 1903, when the money was advanced on the security of the de- positing of the shares, does the doctrine of the relation back of the trustee's title invalidate the transaction, if it was bona fide on the It is to be part of Li Chang Chow? assumed that Wong Tat Hing committed an act of bankruptcy on February 1903, prior to the act upon which the petition was founded. I decide that he is entitled to succeed on the issue. The relation back of the trus- tee's title does not invalidate the transaction. My own opinion is that the enquiry was a proper one in the interest of the creditors, and I allow the taxed costs of both sides to come out of the estate.
The Chief Justice afterwards drew attention to the fact that the newspapers had misquoted The him in Friday's report of the above case. words "relational act of the trustee title" should
have been "relation back of the trustee's title."
This is the return of visitors to the City Hall Library and Museum for the week ending the 24th July, 1904-222 non-Chinese and 74 Chinese to the former, and 94 non-Chinese and 1,595 Chinese to the latter institution.
Wednesday, 27th July.
IN APPELLATE JURISDICTION.
79
BEFORE HIS HONOUR SIR W. M. Goon- MAN (CHIEF Justice) and T. SERCOMBI SMITH (PUISME JUDGE.)
LAND COURT CASE. Mr. M. W. Slade, barrister-at-law (instructed by Mr. J. Scott Harston, of Messrs. Ewens and Harston, solicitors), appeared in support of an application to adduce further evidence in the matter of the claim of Tang Tsz U, 54, Holly- wood Road, to land in the New Territory in C. A. Survey District, as against the Attorney- General.
The Chief Justice said he understood that an order had been agreed upon subject to the approval of the Court.
Mr. Slade stated that the Crown had agreed. The Chief Justice said he had gone carefully into the proposed order, which provided that the appellant's affidavit should be filed before 18th August and the respondent's on 1st September, and that the case be set down for hearing on 12th September. As both parties were desirous that this order should be made it seemed to him fair and right that the permission sought should be granted.
BAMBOO POLES ON THE SIDEWALKS,
Hon. Sir Henry 8. Berkeley. Attorney- General (instructed by Mr. F. B. L. Bowley Crown Solicitor), appeared in support of an appeal by Wai Chung, appellant, and Hung Hoi. respondent, against the decision of Mr. H. H. J. Gompertz, magistrate, in dismissing a case in which the respondent was charged with carrying a bamboo pole on the pavement. The Attorney-General stated that at the Police Court on 27th May, and 16th June, 1904, an information preferred by Wai Chung, the appellant, under Section 2, sub-section 11, of Ordinance No. 14 of 1845, charging the respondent with unlawfully carrying a bamboo pole on the public footpath at Praya East, such pole being calculated to annoy and incommode passengers thereon, on 17th May, which in- formation was dismissed by Mr. Gomperts. The appellant being dissatisfied with the Magistrate's decision as being erroneous in point of law. applied for a case to be stated under section 99 of the Magistrates Ordinance. Mr. Gompertz, upon the hearing of the information, found as a fact that about 5.45 p.m. on 17th May respond- ent was walking on the public footway on Praya East near the entrance to Tai Wo Lane, that the respondent was then carrying on his shoulder a large bamboo carrying pole; that it was carried in such a way as to obstruct the footpath and to be calculated to annoy and incommode passengers thereon; that the pole was not being carried by the respondent for the purpose of being housed or for the purpose of being loaded on any cart or carriage on the other side of the footway. The Magistrate further found as a fact that the pole was used by the respondent a carrying coolie, as a tool or implement of his trade.
On the part of the appellant it was contended that the general purpose of the Ordinance was to make provision for the good order and cleanliness of Hongkong and its dependencies by prohibiting nuisances in public thoroughfares; that among such nuisances was the obstruction of public roads or footpaths in various ways, as by placing merchandise there- on, putting out poles or blinds, riding, driving, or leading horses across the footpath; that in sub-section 11 of section 2 the general words "other thing" were not limited in their meaning by the specific words "barrel, cask or butter which preceded them, because being read as they should be with the words "calonlated to annoy or incommode" which immediately follow them, it was clear that the genus contemplated by the Ordinance consisted of "anything calculated to annoy or incommode," and would therefore in- clude anything whatsoever so such for instance as a coolie's large hat or an umbrella carried over' a man's shoulder in « manner calculated to annoy or incommode passengers, that the exception "for the purpose of housing them or of loading any carf or carriage" should not be held to limit the mean- ing of the words “other thing calculated to annoy or incommode”; and that a bamboo pole as carried by the respondent on the footpath
calculated,
!
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