July 10, 1905.]
His Honour-No. because you were going to bring a cross action
CHINA OVERLAND TRADE REPORT.
Mr. Goldring-I was going to bring a cross was now shared by himself and his brothers. action when the things same back from New-His salary from this was $5 per month, and pro- chwaog. The money was paid into Court fits were divided every year. His father was because you made t is a term for postponing named Chay Kin Tung, and plaintiff's name was the action.
Chay Kin Ön. He called himself King On Tong >o that his brothers would not recognise him. The property was not yet divided. There were no other members of the King On Tong, a name invented by himself, his brothers being members of the Tun Loong Tong. Plaintif called himself King On Tong to separate him. self. The father left about $30,000, the $500 being part of that, $500 out of his share of the yearly divisions.
Mr. Goldring-The goods delivered were not according to sample. We paid for them before they arrived at Newchwang. I am going to bring a cross action for the return of the money.
His Honour-You cannot bring an action for the return of the money till you have paid
it.
Mr. Goldring-I have paid a good deal. I never would have paid the money into Court if I had known this.
Mr. Thomson-I admit we had the money and gave a receipt for it, but we did not get the money from this man.
Mr. Harding called Wong Fai Ting, the accountant. This man had left the defendant
His Honour-I think I can only give judg- | ment against you, and you can apply for au i shop. order to stay execution.
Mr. Goldring-I am willing to contest this
case now.
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His Honour-I do not see how you can say on the one hand "Yes I owe this money and l on the other say No, I do not." Yours is not a cross action, but a claim for damages.
Mr. Goldring-I should like to have these two cases tried together; my man has ben away a good many weeks.
His Honour-He may be away a good many more weeks.
Mr. Harding-This is the seventh occasion that this has been before you`
Mr. Goldring-I submit you this Botion.
cannot decide
His Honour-I submit you cannot deny the debt; you had be ter not put your man in the box. It is quite certain you have made a mistake; you must have misunderstood
ine.
Mr. Goldring-Will you stay execution till the original action!
His Honour-No, for a fortnight; and grant an extension if there are reasonable grounds.
KING ON TONG V. THE HING LEE FIRM.
Mr. R. A. Harding appeared for the plaintiff, and Mr. O. D. Thomson for the defendants, who carry on business as ship compradores at 39, Des Voeux Road; $500 being the amount of share money repayable by the defendants to the plaintiff on the 7th June, 1905, under an agree ment signed by the defendant on the 26th March, 1905.
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The case was adjourned.
}
Tuesday, 4th July.
IN BANKRUPTCY,
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19
His Lordship-That seems sound. Your real ground, then, is that the creditor in 32 is acting in order to shield the debtor. But you must explain to me how he can do it.
Mr. Bowley referred to the debtor's affidavit of the 23rd June, in which it was stated how the debtor was pressed by the Compradore of Messrs. Meyering and, as a result of this press- ing, gave the Compradors a delivery order to take goods out of the godown. When they went there they found a number of other creditors who refused to allow them to take delivery of the goods. The creditors all then went to the debtor' shop to see the account books which, however, had been taken away by one of the creditors. The debtor was then taken to the Police Station where he was detained for the night.
His Lordship What was he doing there The Police Station should not be used to force. people to pay their debts. It may have au important bearing on whether they should be allowed to have the carriage of the proceedings.
Mr. Bowley went on to say that the debtor theu lived above the office of Messrs. Bratton, Hall and Goldring, so that they might get him to see the Official Receiver when required.
BEFORE MR. F. T. PIGGOTT (CHIEF JUSTICE). Other affidavits were referred to, and Mr.
RE THE CHING HOP FIRM.
In bankruptcy case No. 35 Mr. F. B. L. Bowley appeared for the petitioning creditors. Originally this case was the Ching Hop firm exparte Simssen & Co. and others, but at the previous hearing the Chief Justice ruled that the petition would have to be amended because in sixteen out of the twenty instances the signa tures on the petition were those of the com- pradores or other than the principals. Mr. C. E. H. Beavis appeared for the petitioning creditor in action No. 32, the Ching Hop firm exparte Leung Sing Wo, and others. Mr. P. W. Goring appeared for the debtor.
u.
Mr. Bowley applied for consolidation. Me. is raised a preliminary objection
For Rulu 27 of the home ordinauce. Mr. Bowley-I submit it is not in force. His Lordship Let us hear the objection. M. Beavis went on to say that he had only received one day's notice instead of sight. He did not, however, press that point. What he did object to, though, was that there was no affidavit in support of the motion. He should have time to prepare his objections.
His Lordship-Anything can be done by leave of the Court.
Mr. Boris Yes, in a formal defect, but this
is more than a formal defect.
His Lordship--If it is necessary to have an affilavit I will, but if I can take evidence I shall.
The plaintiff explained that in the defendant shop there were four partners including him- self, Leung Lai Chuan being the managing partner. Having previously received a com. munication, plaintiff went to the defendant firm on the 16th September, 1904. Leung Lai Chuen said the business was doing well, and plaintiff agreed to join it as a partner. He subsequently, on the 17th September gave $500 to Wong Fai Ting, accountant in the defendant shop, for him to give to Leung Lai Chuen, partnership money. In giving a receipt Leung Lai Chuen put down plaintiff's wrong name, and plaintiff got him to correct it. Then the plaintiff went to the country for a short time, and on his return weat to the defendant Mr. Bowley explained that in making this firm and asked Leung Lai Chuen for the part application he was relying on the affidavits nership book.
file. He did not get a partnership and petitions on To begin with any book before that, so went for one. Leung Lai
creditor was entitled to make a petition subject Chuen did not give him one, because, as he said, the
to the rules of consolidation. His friend's
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Mr. Borley-Both Mr. Beavis and Mr. Goldring keep ou referring to these home bankruploy rules and they are not in force. The Chief Justice has power to make rules, which unfortunately have not been made, and we have no rules to guide us.
His Lordship -I will consider that iu cham- bers. Go on.
shop affairs were not settled. Plaintiff sub petitions were friendly and such friendly
sequently applied for a balance sheet, but Leung Lai Chuen s id it was not ready Plaintiff waited a week and then asked again and, not being shown any balance sheet, said he would not be in the business. All the partners were then present, and when plaintiff spoke about his capital the other partners said they would take over bis share from him. Plaintiff agreed to that and it was arranged that the amount should be paid back on the 7th June, a stamped docu- ment being given to that effect. On receipt of this document plaintiff returned Leung Lai Chuen his receipt. On the 8th June plaintiff went and applied for the money, but Leung Lai¦ Chuen said he would not have it for a few days. Plaintiff later sent a registered letter, receipt for which was produced. Plaintiff said he received no answer,
Mr. Thomson said that this hadnever been received,
Cross-examined, plaintiff said he bought goods for customers in the country. His father, who died ten years ago, owned a pawnshop, which
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petitions are allowed to be withdrawn.
His Lordship-There has to be a very search ing inquiry.
Mr. Bowley-I am trying to show our grounds for presenting a second petition. At present I am representing four petitioning creditors, but you have it on file that these represent the bulk of creditors.
His Lordship-What you really want is the calens of the proceeding.
Mr. Bowley-Yes, and it must be in your Lordship's knowledge that I represent the bulk of the creditors.
His Lordship-I do not know that now; the petition has been amended.
The matter was then entered into, and it was discovered that Mr. Bowley's four clients' claims aggregated $10,000, whereas Mr. Beavis client's claim was approximately $30,000. His Lordship decided against Mr. Bowley on this point.
Mr. Bowley-I submit, then, that it is not right for my friend's creditors to shield the debtor from other creditors.
Bowley pointed out that all that took place was not between Messrs Brutton, Hall & Goldring and the debtor but between their interpreter and the debtor. He submitted that the inter- preter was much exceeding his authority in removing the debtor's books so that the several other oreditors should not see them.
We are entitled t› see them.
His Lordship-"ow is a man entitled to go into another man's shop and see his books? The proper way is through the Bankruptcy Court. Is there any particular harm in one creditor taking the part of the debtor?
Mr. Bowley-I submit that the debtor should present the petition himself. Every debtor is Ordinance. and I submit the proper way to get entitled to the protection of the Bankruptcy
it is to file a petition himself.
His Lordship-Is that laid down. It seems rather a curious proposition.
Mr. Bowley-That would be the straight- forward way.
His Lordship-There seems to have been a regular mob and they exceeded their powers. You must make a very strong case against the first creditor who filed his petition. because the Court itself will protect the ered fors, and it does not matter who has the carriage of the machinery. I cannot understand your action. There is nothing in removing the books to his solicitors. It is one of the advantages of our profession and covers a multitude of sins. The proceedings were doue by ■ Chinese interpreter in a solicitor's office.
Is the Managing Partner?
Mr. Bowley-No, my Lord. I do not admit that. He is not a solicitor. No interpreter is the proper person to manage the business. would be very dangerous.
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Mr. Bearis-The solicitor has to take all the
responsibility, but the interpreter does manage the business to the extent that he goes to see the Chinese.
Mr. Goldring-The position, really, is that of a compradore
creditors had besu affected by the books not being carried over to the Official Receiver at once. The Chinese Custom is that creditors at once take the books before the debtor has time to alter them.
Mr. Bowley said that he alleged that the
His Lordship-If you can prove that the books have been tampered with then you have
a case.
The Court held that the calens of the pro- ceedings should remain with the original ared.tor.
Mr. Bowley then applied merely for consolida-
tion.
Mr. Beavis opposed this saying that his friend's petition should never have been placed on file.
The estate was already protected by an interim receiving order.
His Lordship said he could not consider that question then but would reserve the ques
He consolidated the petitions leaving the lens of the proceedings with the petitioning creditor in No. 32. The case was ixed for Thursday next.
tion as to costs.
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