December 16. 1905.1
plaintiffs to proceed to establish their claim. I must confess that it seems to me that that application was unnecessary, section 469 says that after the issue of a writ the plaintiff may forthwith file his statement of claim and proceed to establish his claim.
His Lordship Is your point that there should be no application in chambers?
Mr. Pollock
Yes.
His Lordship-If that could be eliminated it would save costs. What is the rule with regard to proceeding exparte in an ordinary action ?
Mr. Pollock referred his Lordship to sections 50 and 52 of the code.
His Lordship-In future there will simply be the usual application to the Registrar to fix a day.
Mr. Pollock-Your Lordship will see from the statement of claim filed that the plaintiffs are claiming for $5,000, cash advanced on the 16th ultimo. Two promissory notes were given on that date for the amount, one for $3,000 and and the other for $2,000.
Luk Pak Ham, sworn, said he was the managing partner of the plaintiff firm, which carried on business at 6 Wing Lok Street. The plaintiff advanced the sum of $5,000 to the defendant on the 16th November, and he gave them an acknowledgment. The whole amount was still due and owing. Witness did not know where defendant was, although he had had people looking for him until yesterday.
Mr. Pollock said he had attached the property of the defendant on account of money owing to other creditors, as well as the one before the Court. He would ask for execution with regard to that.
His Lordship-On the last occasion, when I gave judgment it was general, because the writ was a general writ of attachment.
Mr. Pollock-With regard to the question of execution P
His Lordship-Execution had best be limited to the movable property of the defendant registered in his name under a memorial, and attached by the plaintiffs. Judgment will be given as prayed, together with interest claimed and costs.
A SIMILAR APPLICATION.
Mr. Pollock made a second application against the defendant, the plaintiffs being the Ming San Pon bank. -
Mr. Pollock stated that the claim of the plaintiffs was for $10,000 lent to the defendant on the 24th September, and a second $10,000 advanced on the 27th of the same month; in all, $20,000, together with interest and costs.
Leung Hok San, manager of the plaintiff bank, gave evidence as to the advance of the money, after which his Lordship gave judgment as prayed together with interest and costs.
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. W13E (PUISNE JUDGE),
AN OLD DEBT.
The Lok Kee firm claimed from Chui Siug Chi the sum of $780, being balance due on money lent and interest thereon.
Mr. R. F. C. Master (of Messrs. Johuson, Stokes and Master) appeared for the plaintiffs, and Mr. E. J. Grist (of Messrs. Wilkinson and Grist) represented the defendant.
CHINA OVERLAND TRADE REPORT.
After hearing further evidence, his Lordship said he was sorry he could do nothing for the defendant. He believed there was a swindle, but he must pay up. There would be judgment for the plaintiff with costs.
Mr. Master said the claim was for $780 being for interest and balance of principal lent by the plaintiff to the defendant who was under arrest, The principal was $300, and interest had accumulated until it had reached $78. He had received notice of two technical defences from the other side; one. under the Summary Jurisdiction Act, was that the claim was out of time, and the other came under Ordinance I. of 1851.
Thursday, 14th December.
IN BANKRUPTCY.
BEFORE SIK FRANCIS PIGGOTT (CHIEF JUSTICE).
APPLICATION FOR A RECEIVING ORDER.
Re Wong Cheung Kee exparte Wing Fung Leung.
This was an application for a receiving order. Mr. P. W. Goldring (of Messrs. Brutton, Hett and Goldring) who applied, said there were six petitioners. Leave to effect substitated service had been obtained, and the service had been effected. Affidavits were on the file, one made by the bailiff and one by himself as to the insertion of the varions notices in the newspapers. The petitioners were all judgment creditors. The aggregate of the judgment debts was $2,144.77, and the taxed costs amounted to $717.90. The notice had been served on the manager-
His Lordship-It would be very much more convenient, Mr. Grist, if, when you forward the other side notice of these objections, you would also supply the court with copies.
His Lordship-You cannot serve a bank ruptcy notice, except on the bankrupt himself, without first getting leave.
Mr. Goldring-That refers to service out' of the Colony. We are applying for a receiving order against the firm, not against an individual. His Lordship-There is no such thing as the bankruptcy of a firm; the bankruptcy is the individual members of the firm. There is a recent case in which that is laid down.
Mr. Grist handed same to his Lordship. His Lordship-Well, let's get on. The managing partner of the plaintiff firm said the defendant borrowed $300 from him for which he gave a promissory note. From time to time he had paid $45 on account, but had refused to pay anything more.
Mr. Goldring referred his Lordship to section 6 sub-section 2.
His Lordship-I daresay that the procedure goes on against the firm, but what it is in fact. is a bankruptcy of individuals. According to the rules the service of a petition may be assimilated| to the service of the writ because it is the initial document in the proceedings. The service of a bankruptcy notice is a very diffe.ent thing, because the service of the notice does not initiate proceedings.
Mr. Goldring-We have a special provision in the Code which brings in a firm as an individual.
I
His Lordship-Well, I cannot go beyond that case, which is a House of Lords case. can't remember the name of it now, but you can look it up in the Court of Appeal, 2 Q.B., re A. B. & Co. Meantime, the matter can stand over.
|
Later, Mr. Goldring informed his Lordship that he had found the case. lt was Cook. appellant, and C. A. Voegler & Co., respondents. His Lordship-The giving of your bankruptcy notice is the act of bankruptcy, but the service must be on the members of the firm.
Mr. Goldring-May I again refer your Lordship to bankruptcy ordinance 6, Sub-
section I?
is whether the act of bankruptcy could be His Lordship-The whole point in this case
committed by an agent or somebody else other than a partner of the firm.
423
ruptcy.
His Lordship-It is hardly a case for bank-
Mr. Almada-Some of the debts may not be recoverable my Lord.
His Lordship-Why have you not brought an action to recover your 8500?
provision in our Code.
Mr. Goldring-Well, my Lord, there is a
His Lordship-Well, I must consider it. Is
Ordinance? there nothing analagous to it in the Bankruptcy
Mr. Goldring-Apparently not, my Lord. I cannot find anything.
His Lordship-Very well. The application stands adjourned until Thursday next.
ANOTHER RECEIVING ORDER WANTED.
Mr. Almada-The man gave notice that he was susp nding payment of his debts.
Re Shum Wa San exparte Chow Wing. Mr. F. P. d'Almada e Castro, who appeared for the petitioning creditor, said the service of the petition had been proved by affidavit.
His Lordship That certainly puts you with. in the bankruptcy law, but you show that the greater portion of the $5,500 is reo›ver-ble, aud that the detor's liabilities are only $4,500.
Mr. Almada-There is $1,100 in Canton, which may not be recoverable.
His Lordship-In ordinary cases of actions against a firm, you don't want leave to serve personally other than the person in control.
His Lordship You say it is in your affidavit. Mr. Almada-I say I verily believe it is. His Lordship-What do you say, Mr. Wakeman ? This case similar to those cases we had last day.
Mr. Wakeman-The debtor is here to speak for himself.
Li Yuk Sau, sworn, said he was one of the partners of the Shun Wa San frm. The liabili. ties of the firm were about $5,000 while the assets were a little over $6,000, about 85,000 of which was recoverable. He could not collect the money owing in Canton, but thought the Official Receiver could recover it.
His Lordship-Even then, there is only $1,100 in Canton. Without that there is plenty to pay his debts.
Mr. Almada-If he sues those who are in his debt and recovers.
His Lordship-But don't people pay without being sued?
(To debtor)-Have you tried to collect this money ?
Debtor-Yes. But I am put off from time to time.
Mr. Almada stated that the bankrupt firm gave notice of suspension of payment. Their debt to the petitioning creditor W88 $500, while the assets of the firm, so far as his client could make out, as mentioned in the declaration, were 85,500 the greater portion of which was recoverable. The liabilities of the firm amount to $4,500.
His Lordship-There is one amount owing by the Nam Hing Cheong firm; is that recoverable.
Debtor-Yes.
His Lordship-Have you tried to recover it? Debtor--Yes. But they put me off. His Lordsbip-What standing has the Nam Hing Cheong?
Mr. Almada-I don't know, my Lord.
I
His Lordship-The next thing will be that they will go bankrupt, and there will be a string of bankruptcies one after the other. don't decline the petition, but it will stand ever.
A D BTOR'S PETITION.
Chan San Shek and another exparte the debtors.
Mr. Almada, who appeared for the petition- ing creditor, said this was a debtor's petition. In the usual form of affidavit proof of the assets had been filed by the debtors themselves. The assets were $49,500 and the liabilities 874,000.
His Lordship-I think this is a case for a receiving order.
Mr. Almada-May I ask your Lordship for an order for the receiver to sell this stock before adjudication ?
His Lordship-That is a matter for the Official Receiver to decide,
Mr. Almada-I understand the Official Receiver has no objection.
His Lordship-Very well. An order for the sale of the stock is granted.
APPLICATION FOR PAYMENT OF COSTS. Re Han Fnk Cheung exparte the Hong Yuen Bank.
Mr. C. F. Dixon (of Mr. Hastings' office) applied
behalf of the San Wing Cheong firm, under Section 33 of the Bank- ruptcy Ordinance, for payment of the said firm's taxed costs.
on
His Lordship-What was the act of bankruptcy?
r. C. E. H. Beavis (of Messrs. Wilkinson and Grist), who appeared for the petitioning creditor, said the act of bankruptcy alleged was the departure from the Colony of two of the partners of the firm. That departure was sup- posed to have occurred in the early part of October when a letter was written by the firm, addressed generally to the creditors, stating that the partners were leaving the Colony, and would leave their goods to be disposed of by
the creditors.
•
Mr. Wakeman thought the application was rather premature, 88 had not yet been adjudicated bankrupt. He the firm could not say at present whether the estate had sufficient funds to pay the costs.
No comments yet.
Private notes are available after approval.