November 12, 1906.]
Mr. Gardiuer-The defendant is the surety, my Lord.
His Lordship-You released your security, that's all about it. But let us get on; it's news to me.
Plaintiff said the defendant went to him and asked him to release Goldenberg as he (the defendant) had brought a buyer.
His Lordship-On condition he got a buyer? Mr. Gardiner-There was no condition. His Lordship-Supposing you hadn't got a buyer; he wouldn't have released Goldenberg. That is the condition.
Plaintiff In the event of the buyer not pay. ing $200, Fzekiel promised to pay.
Mr. Almada-That is the case, my Lord; but it requires a written promise.
Plaintiff-Ezekiel paid $100 of the 8200, and promised to pay the second $100 in three or four days.
His Lordship-How did Ezekiel get any benefit out of the $100 you are claiming ?
Mr. Gardiner He got the cigarettes. Mr. Almada-Isaacs got them. Mr. Gardiner -I will prove Ezekiel got them, and it is merely a ruse his putting Isaacs forward.
His Lordship-Where does Goldenberg come in.
Mr. Gardiner-He has nothing to do with this case now.
His Lordship-You said the defendant was guaranteeing Goldenberg?
Mr. Gardiner-Quite so.
His Lordship-Well, where is Goldenberg' Mr. Gardiner-Released at the request of the defendant.
His Lordship-And you are suing on a promissory note. You cannot do it.
Mr. Gardiner-Bat I have to show it is a guarantee.
His Lordship-Pardon me, it is a promissory
note.
Mr. Gardiner-I have got to sue од B guarantee.
His Lordship- Well, that upsets you. The plaintiff bas been perfectly honest; but, unfor- tunately for him, honesty in this case is not the best policy.
Mr. Gardiner-I thought it was always. His Lordship-Not in this case. Plaintiff-The defendant came to me and wanted to give me $100.
His Lordship-Well, you had better take it if you can get it! There will be judgment and costs for defendant.
Tuesday, November 6th.
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. WISE (PUISNE JUDGE).
CLAIM FOR HIRE.
The Kwong Hing firm sued Chan Shu to recover the sum of $200, being as to 8100 part, thereof for the return of money deposited with the defendant as birgain money for the hire of defendant's cargo boat No. 693, and as to the remainder being the amount of damage defendant agreed to pay the plaintiffs on his failure to deliver the said cargo boat.
Mr. F. X. d'Almada e Castro appeared for plaintiffs, and Mr. J. H. Gardiner (of Mr. O. D. Thomson's office) for defendant.
Mr. Almada, in opening, said the plaintiff firm carried on about three million dollars' worth of business yearly, and required a con- siderable number of boats. After the typhoon, some of their cargo boats were damaged and the firm employed a broker to arrange to hire some. This man arranged with defendant on terms of $300 a month, and a deposit of $100 was paid. While that was being paid the defendant agreed with the plaintiffs that if he did not deliver the cargo boat on the following day he would pay $100 as damages,
After hearing the evidence his Lordship reserved judgment.
1.
PARTNERS QUARREL¦ AND CREDITORS PROCEED.
CHINA OVERLAND TRADE REPÓRT.
Mr. Otto Kong Sing appeared for all the plaintiffs, and Mr. Steavenson (of Messrs. Deacon, Looker and Deacon) represented the second defendant in each action.
Mr. Steavenson informed his Lordship he was not prepared to defend as the two partners had quarrelled, and he was unable to get them together to find out whether the amounts claimed were owing or not. He would there- fore consent to judgment on behalf of the second defendant.
His Lordship gave judgment and costs to the plaintiffs in each action.
Wednesday, November 7th.
IN SUMMARY JURISDICTION.
any person having control or managa- ment of the business. The casa argued as if this provision would be on any one who might be conversationally said to be in charge of the business, but I think this would do away altogether with the characteristics of service, especially so if the persons made bankrupt were out of the jurisdiction. I now refer to section 6 of the Bankruptcy Ast, which makes use of the same expression: that an act of bankruptcy in the case of a firm may be com- misted in respect of an act in reference to the business of the firm by any partner of the firm or by any person having control or management of the business. The use of the same expres« sions makes it clear to my mind that the service of a petition can only be on persons who in the terms of section 6 (1) can commit an aot of bank.
BEFORE MR. A. G. Wise (PUISNE JUDGE). | ruptcy. It is clear the act of bankruptcy
FIGHTING ON PRINCIPLE.
Chan Chiug-ping, trading as the Tang Hang Yue firm, sued the Yau Hing firm to recover the sum of 8418 88 due on 17 tubs of bean oil.
I
Since the issue of the writ 8409 had been paid into Court, the defendants disclaiming further liability. The action was therefore
continued to recover the sum of $9.
Mr. Jackson (of Messrs. Deacon, Looker and Deacon) appeared for the plaintiffs, and Mr. J. H. Gardiner (of Mr. O. D. Thomson's office) for the defendants.
When His Lordship was ready to proceed Mr. Jackson stated that one of his principal witnesses was absent. He had evidently been misinformed, and had gone to the Magistracy.
His Lordship-Then I'll have to strike the case out. I had three cases like this this morning. Are you going on P
Mr. Jackson-I'll go on in anticipation of bis arriving in time?
His Lordship -As you please. He basn't gone to the Police Station, bas he?
Mr. Jackson-No. To the Polios Court, His Lordship-That's all right, but I thought I'd lie to know whe he was.
Mr. Jackson-He hasn't been "had up" for anything (laughter).
you
His Lordship-You are saing for $9. Why don't take the money out of Court?
Mr. Jackson-My clients are fighting on principle.
His Lordship-You'd better take the money paid in.
Mr. Jackson-I understand it is customary in the oil trade to allow a reduction of one per cent on account of leakage. Delivery of this oil was taken in tubs, so that there was no leakage, and the defendants claim that they are entitled to this redaction.
His Lordship-It seems to me perfectly absurd to fight this case for $9.
Mr. Gardiner There is a counter claim for short delivery under this contract for $18.50.
His Lordship-I cannot understand y. ur fighting on.
Mr. Jackson-Personally I have no inclina- tion to do so.
His Lordship-Your costs will come to $90 or $100. It is silly. However, go on; it does
no: matter.
Evidence was then called, after hearing which his Lordship gave judgment for the am unt paid in, without costs.
Thursday, November 8th.
IN BANKRUPTCY.
BEFORE SIE FRANCIS PIGGOTT (CHIEF JUSTICE).
SERVICE OF BANKRUPTCY PETITIONS,
i
Re the Wai Tai Cheung firm ez parte Chan Pui Shia.
His Lordship-There was a point in practice last day which I took down to consider with regard to the service of a bankruptcy petition in the case of a firm where the partners are not Four actions were brought against Cheng in the Colony. It is clear that under section 7 Tsai and Cheng Lai, partners in the Chua) that a creditor's petition may be served in Shing firm, in which the following firms sought the same manner as a writ of summons. There to recuper the amounts hereafter stated: -The fore in the case of a petition against a firm In Hing Loong, $39433; the Wing Cheung the service may be under section 485 (1): at Loong, $55.90; the Kwong Cheong Loong, the principal place, within the jurisdiction, $96.15; and the Kue Cheong Loong, $268.76. of the business of the partnership upon
could not have been committed by the person whom it was desired to serve in this case the assistant accountant. I think that section 6, although it does allow a firm carrying on business in the Colony to have an adjudica- tion order made against it, does not alter the essential obaracteristics of a bankruptcy of a firm; that is, the bankruptcy of the individual partners. It is clear that some persons, not partners, may commit acts of bankruptcy, but they must be so intimately connected with the business that the act can be said to be an set of the partners themselves. In this case I say the assistant accountant could not possibly under any circumstances whatever commit an set of bankruptcy on the part of the firm. Therefore I think the service was bad.
Mr. Morrell I understood your Lordship reserved your judgment on the point as to whether the business was carried on at the shop or not. This is quite a surprise to me. The object of service is to bring to the notice of the person you desire to make bankrupt, that a petition has been filled against him.
His Lordship-I don't think that is so.
Mr. Morrell-An act of bankruptcy has been committed in this case. A déclaration was filed that the firm was unable to pay its debts by the managing partner. Whether the person served can commit an act of bankruptcy or not has nothing to do with it.
the mere
His Lordship-With that I quite agree, but act that an act of bankruptoy has been committed does not entitle you to waive the precedence of service. Service must be on somebody who is a partner, or has the control and management of the business.
Mr. Morrell-This man was managing the
shop.
His Lordship-That is not sufficient. The point of my judgment is this: that the use of the same expressions in the two cases, first as to service, that it must be on a person having control or management of the "business, and secondly, that an act of bankruptcy can be committed by such person, that shows to my mind that service can only be on somebody who can commit an act of bankruptcy.
#
Mr. Morrell-Am I to take it from your Lordship's reading of the words "a person having control or management of a business that such person to commit an act of bankruptcy must be a partner ?
+
His Lordship-No. There are some nots of bankruptcy which can be committed by an agent, or by person having control or management. The law of service is not merely this: that be- cause an act of bankruptcy is committed, therefore any notice is sufficient to serve the bankruptcy petition. Notice must be served absolutely on some definite person authorised by law. Whatever the law may be with regard to the service of writs, with regard to the service of a bankruptcy petition, the only man who can be served is the person who can commit an act of bankruptcy.
Mr. Morrell-I maintain that the service of writs and petitions is exactly the same under our own Ordinance.
His Lordsbip-It may be we have interpreted rather laxly, but as the two terms are used, that a certain person not a partner can commit an act of bankruptcy, and that a certain person not a partner can be served with a bankruptey petition, I fear that sccording to the interpreta- ion of those two provisions service must be on somebody who can commit an act of bankruptcy. After considering a good many cases I feel certain that must be the law.
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