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January 18, 1906.]
will the three sons were entitled to a beneficial interest of one third of the estate upon attain- ment of full age; that administration of the estate should be taken for the infant son; that deceased con's share in leasehold in the Colony be divided, one-third to his widow and two thirds to his infant son; that one-third share of the pare personalty be divided according to the law of his domicile, ie., China; that the costs of all parties as between solicitor and client, be taxed and paid out of the estate.
VILA DISPUTED CONTRACT, Yee Shun Hon Kee sued Ho Ping Yin and others to recover the sum of $5,700 due for architects' certificates.
Mr. M. W. Slade, instructed by Mr. F. X. d'Almada e Castro, appeared for the plaintiff, the defendant being unrepresented.
The statement of claim showed that on March 28th a contract was entered into between plain- tiffs and defendants whereby the former agreed to erect certain oil godowns at Taikoksni. Work was commenced, three architects' certificates being granted. One of these was paid for, bat the remaining two, totalling the amount claimed, were still anpaid.
Mr. Slade said there was only one defendant in Court, and he consented to judgment.
The dissentients being proved partners in the firm, his Lordship delivered judgment and costs for the plaintiff.
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CHINA OVERLAND TRADE REPORT
A second witness was called to support the plaintiff's claim, but he stated that $600 of the amount in dispute had been paid.
Mr. Harding, for the defence, submitted that the plaintiff had not made out a case, One of his own witness's showed that $650 alleged to be owing had been paid. The credit for goods was also paid.
After hearing the evidence for the defence, his Lordship said he thought the plaintiff believed that he was going to get the house and land, when the decision of the Land Court ousted him. He did not believe a wor of the plaintiff's story from beginning to end, and at one time thought of sending him to gaol, but that would not be much good. He hoped he would not see him again. There would be judgment for the defendant with costs.
Thursday, January 11th.
IN BANKRUPTCY.
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
THE MILLIONAIRE BANKRUPT.
Re Choy Chung Lee.
His Lordship delivered his decision regarding the release of this security. He said that on August 3rd a warrant was issued for the arrest of the bankrupt, who failed to appear at his public examination. The warrant was issued under section 34D of the Bankruptcy Ordinance. BEFORE ME A. G. WISE (PUISNE JUDGE). On August 4th it was suspended on the debtor
IN SUMMARY JURISDICTION.
A DISPUTED BALANCE.
Ip Fat On, trading as the Mow Cheung, at Nos. 127 and 129 Upper Main Street, Kowloon, claimed from Ip Sun Kui, of No. 131 the same street the sum of $1,000, being balance of a sum advanced by the plaintiff at the request of the defendant for the construction of the defendant's house..
Mr. Otto Kong Sing appeared for the plaintiff, and Mr. R. A. Harding for the defendant.
Mr. Kong, Sing said the full amount due was $1,360, but the plaintiff had waived $360 in order to bring the claim within summary jurisdiction. The claim was partly for goods sold and delivered.
His Lordship said he thought it was a question of title, but apparently it was nothing of the sort.
Mr. Harding submitted that it was a question as to whether the money was paid by his or by his friend's client.
Mr. Kong Sing stated that in 1901 a piece of land was bought on behalf of the defendant, and paid for by the plaintiff. Subsequently a house was built upon this piece of land by the defendant, and the contract was pai for by the plaintiff at the request of the defendant. The defendant had repaid part of the sam'owing, but there was still a balance of $1,360 due, $1,000 of which the plaintiff now claimed,
The plaintiff's books were produced, and he gave evidence, One book contained an entry to the effect that he had received so much on socount of the amount in dispute. He denied making this entry, but said his son wrote it.
His Lordship Is the writing on the other page yours?
Witness--Yes
Witness No. It is my son's. His Lordship-Is your son here ? Witnesses.
His Lordship-Are you going to bring him up to tell as many stories as you are telling?
Witness-Yes.
finding security for his appearance in the sum of $5,000. The bankrupt subsequently appeared and was examined, his public ex- amination closing on December 14th. Mr. Goldring then applied for the release of the security, and the question arose as fo whether the security in such circumstances was It was giver for the benefit of creditors, unnecessary to decide that question. As a matter of fact, the debtor was now being prosecuted for an alleged offence under the Bankruptcy Ordinance, and it was said that his appearance was therefore guaranteed. That did not follow that security was give for his appearance in case he was wanted again in the bankruptcy proceedings. Until therefore, his appearance was no longer required, or guaranteed in some other manner, the security would stand.
WEONG PROCEDURE,
Re Wong Chung Keo es parte Wing Fung and others.
Mr. P. W. Goldring (of Messrs Brutton, Hett and Goldring) appeared for the petitioning oreditor.
what order would meet the case. In ordinary circumstances the petition would be dism but I think I shall be right in giving liberty to serve the bankruptcy notice and put your procedure in order.
MOTION FOR HABE AS CORPUS, In the matter of Yu Pan, sud in the matter of Bankruptcy Ordinance 7 of 1891.
Mr. M. W. Blade, instructed by Mr. E. J. Grist (of Messrs. Wilkinson and Grist), moved that a writ of Habeas Corpus be directed to F. J. Badeley, Superintendent of Victoris Gaol, to bring up the body of Yu Pun before the Court immediately on the procedure of the writ. He said that on the motion his could either make an order for the issue at once, or obuld make an order nist wherein the question could be argued. In support of the motion an affidavit was filed by the prisoner in which he declared that he was committed to gaol under a warrant and had not been charged with any offence against the law. He was desirous that a writ of Habeas Corpus should issue in order that he might be brought before the Court. The material parts of the warrant annexed to the affidavit rend :-" To F. Howell, an officer of the Supreme Court, and to F. J. Badeley, Superintendent of Victoria Gaol: Whereas by evidence taken on oath it has been made to appear to the satisfaction of the Court that there is probable reason for believing that Yu Fun, managing partner of the debtor firm, has committed an offence, these are therefore to requir you, the said F. Howell and oth rs, to take the said Yu Pun, and him safely to keep in the said prison until such time as this Court may order." In that warrant there were two very material objections in point of substance. In the first place the warrant did not state the cause of commitment. Mr. Slade referred his Lordship to section 1 E of the Bankruptcy Ordinance which read:- "The Court may, by warrant, cause a debtor to be arrested
if there is probable reason for believing that he has com- mitted an offence under this Ördinance.”
His Lordship-The warrant is badly drawn. Mr. Slade-Yes, my Lord. It is a bad war- rant. It is necessary for every warrant of commitment to truly state the ground of commitment.
His Lordship-The offence is committed under Section 82 (4).
.4
Mr. Slade-Yes; but on the face of this war- rant the Court could not come to any conclusion as to whether the prisoner's action amounted to an offence.
Continuing, Mr. Slade said his second point was that the warrant ordered the gaoler to keep the prisoner in prison until such time as the Court might order. He submitted that the Court had no power to make such an order. A time certain must be stated in a warrant of commitment. The words of the Ordinance were perfectly clear; they said that the Court must make the order as to time at the same time as it made the order for a prisoner's arrest. He did not think it reasonable that they could bear any other meaning,
His Lordship, in giving judgment, said-In this case there was a petition by six judgment creditors and there has been substituted service of the petition. The not of bankruptcy is stated to be under section 3, 1G. of the Bankruptcy Ordinance. This, in my opinion, is insufficient service of the bankruptcy notice. The section requires service on the debtor. The debtor in this case is a firm, and although it is for con- venience called the bankruptcy of a firm it has
His Lordship The section provides for the been explained in ex parte main and other cases that there is no such thing in fact as a bank-warrant to be in force until the offence iss ruptcy of a firm, but only the bankruptcy of prosecuted.
So that the rule the individual partners.
1
as to service of other documents on firms does not apply to this case. The bankruptcy notice His Lordship Then the entry in question is must be served on the members of the firm as yours.
'was in the case stated re Wenham.' Attention was directed to section
of the 6 (1) Ordinance which provides for the presents tion of a petition against a firm in respect of an act of bankruptcy committed by any person having the control or management of the business of the firm. This is quite contrary to all the principles laid down in the series of cases ending with Charles A. Vogeler & Co., which decide that an sot of bankruptcy is personal act of the bankrupt; and though it is possible that an act of bankruptcy may be committed by an agent, the act can only be an act of bankruptcy if it is committed by authority of the debtor. Without making any further comment on the extraordinary provision of the law, I am of opinion that even as it stands it is no warrant for hold- ing that an sot of bankruptcy which consists in receiving a bankruptcy notice can be committed by the person having the control and manage- ment of the business of the firm. I do not know
His Lordshipsaid the plaintiff probably thought he was going to get a share out of his father's estate, but when he found he did not, he decided to make this claim. As far as he had gone, no one could believe a word of what he said. The son would be useless to society if he were as big a iar as his Lordship supposed his father to be.
Plaintiff continued to contradict himself as the writing of other entries in his books. His Lordship-Chinese don't keep their books in that fashion.
Witnes. I am not acquainted with my own laws (laughter).
His Lordshi of ours, I think.
You are sequainted with some
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Mr. Slade Not the warrant, my Lord. His Lordship mean the words of the ses tion. I don't see how the Court could make such an order.
Mr. Slade-I submit that this cannot mean that the Court can commit a man to gaol for an absolutely indefinite time, or until his creditors choose to move in the matter.
His Lordship-The section does seem very vague, but I don't see what other order the Court can make. ·|
Mr. Slade-It can commit a man for one That gives sufficient time for creditors week! to consider whether they will institute i prosecution. If they do not do so within that time, the man should be discharged at once.
His Lordship Other motions have been made recently for the release of debtors under such circumstances. I do not see my way make an order for release, as it is practically order on the Attorney-Generál.
Mr. Slade Not an order on the Atto General. He simply acts on instru before him. The delay which takes prosecution of criminals does not occur. Attorney General's or the Crown Solisite
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