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November 17, 1906.}
money on them, or to sanction their delivery to anyone else than the holder of the B L. In order to give the Hung Yui Bank a good title on the principle I am now considering it would have to be diffe ently stated: thus the principl has put the agent in his place and this bas enabled the agent to do things which he Was not authorised to do: to do things entirely beyond the scope of his authority, which had BO connection whatever with his actual authority; and in doing them to cem mit a frand. It must be considered that there is a dividing line in determining the liability of, the principal for the acts of his agent between those that are within the scope of his authority, and those which are not: it must on the other hand be admitted that though frand is nod for se within the scope of the agent's authority, yet in some cases the principal is liable for the fraud of his agent. I think the true line of i demarcation in the case of liability for fraud is to be found by enquiring whether the act itself, ou of which the fraud springs, is within the scope of the authority: if it is then if it is done with fraud the principal is liable, yet if it is not then the principal is not liable. Here the ship's agent's authority consed when he had deposited ¦ the tin in the godown. The subsequent act of obtaining money on the godown warrant and giving fraudulent instructions as to the order for delivery of the gonds was low and his auther ity and therefore the ship owner not inte Putting the mafter more coqeisiy the prin- cipal is not liable tecause he in is pat the agisa in such a position that he can edumit Trand, but because he has authorised him to drevet on acts which he has don fraudulently. On this ground therefore I think th· defendant's miss fails.
How can the plaintiff suceded i
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CHINA OVERLAND TRADE REPORT.
IN BANKRUPTCY JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT, (CHIEF JUSTICE).
A CREDITOR AND HIS CLAIM.
An interesting development in the bankruptcy of Cheung Shuu-koo was heard on a motion by Sir Henry Berkeley, KC, acting ou behalf of Mr. Lowe, the trustee in this estate, for a stay of proceedings until an order had been made compelling certain creditors to prove their debts Mr. M. W. Slade appeared for certain ere litors to make another motion in the same action.
Sir Henry Berkeley having mentioned his' motion,
Mr. Slade intervened with the remark that his motion came first.
Sir Henry Barkeley argued that his motion, which was for a stay of proceedings until es fain creditors had produced satisfactory proots of their claim, should he heard first.
Mr. Slado objected.
Was Tolteknd to ba
togus n and Was
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the persons that ware asking this? They were recalcitrant creditors who refused to come before the Trustee and prove their debts. The debtor was able to pay 100 per cent-20s in the C-or 80 or 90 per cent, much more than he offered. He put forth an offer of 20 per cent and that offer had not been before the I rustee. He had, on the evidence given in Court, concealed a portion of his property—
Mr. Slade objected. This was unnecessary in a preliminary objection.
The Chief Justice said he did not think Sir Henry needed to go into that.
Sir Henry replied that it showed that it was necessary br the pure administration of hankruptcies that the claims of those creditors should h. investigated, He pointed oat that Vr. Slade appeared for the debtor, who had no bus standi, as one of the grounds for his objection, and continued to discuss the question of additional proofs being required.
The Ci-f Justion. --The point is whether the motion to expung - the proof com's before this motion
Sir Inry-I am giving my reasons. They are discredited persons and ought not to come before this Court at all,
Me Stad--They are attacked.
Sir Henry Berkeley said that his learned friend was asking the Court to order the Trusts to call a mooting of croliters to enable the, debtor to lay before them a scheme of com position. This s·bome was approved of by Sir Henry-They are more than attacked. certain creditors who had been asked to prodités The Trusten is bound to investigate every additional profs but had refused The sebeme 'elai a put in To Of Receive first rend from these caldies on Angush 3rd prevfs of their claims, Helmitted them for what they wore worth, and afterwards passed them
on to Mr. A. R. Lowe, who had sub- quently been appointed Trusten..
It was the Trustee who called for additional proofs. They all ge de exinot ask for more prodí because the Official Reiver accepted what they tendered is prod; and because Mr. Lowe did not ask for proof within the time alle wed by the Ordinancy→ Two technical points which were worth nothing. They were the creditors who were moving with the debtor, who had no focus stand,
only to offer a e mposition of 24 per cent, | [hise er-ditors who were ordered to produc
further proof of their claims refused to do so, and his motion was to expunge that proof unless they gave further evilnes.
Mr. Slade That is only one msjay Sir Henry Yog; to others ar» —
Mr. Slide-I think I might be allowed to Again on the simple facts of the
exp ain my own na tone. The Curi si e au plaintiff being consignee of the hatris right- order allowing Ha Tung to amend his proof of which the RL would entitle to surend Büc debt, ea parte, Ho lung submitted proof for there are some peculiarities connected with this į a very large sum and it was through his vote at consigument whici: required to be curetally ex ¡
the creditors' insting that the scheme them amined, as the stressf the defensant s attiek affered by the dehter was tot acoupful. Wa was put upon them. The plantif" was the owner; want the order showing H - Fung to am and his of the ship in which the tin cans to Jongkong, ! debt to be resende 1. I moved last time tha and he beenne asigues from the Hongkong | that order he discru god. I think that logiedly and Shanghai Bank 1- 15. folowing eunes first, circumstances:—
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Sir Houry Berkeley That may be su don't dispute that. I want to know for whom my learned friend appears. According to the patice of motion he is appearing for the dbfor and creditors.
Sir Heury-Who are they?
The action was instituted by the Hongkong and Shanghai Bank as holders of the B L. against the shipawner for læna het contrast in not delivering the goods to the bank under the B'L: the damages being the amount for which Mr. Stad-- I appear for all the creditors. the B. L was purchased The shipowne there Sir Henry Hak-dr~{ want the upon agreed to pay the lank the amount claimed i given. He does not apjasar for H› lung nor the bank on its side agreeing to assign the ship ¦ for Palmer and Furner, owner all its rights unle the 1 Lis. Tais! Mr. Slade -- the Trustee had done his duty agreement was carried out and the ship wner, in this matter he would have moved the m dion. the present plaintiff, became assigace of the no! me. He was badly advised by Denen, BL. On this statement of facts an exceedingly Looker and Beacon. I am appearing for a ingenious argument was framed. Whatever | number of creditors might be the rights nuder ordinary circum stances of an assignee of the B. L to thes- Bị Ls, : this assignee had none because in any action on ; the B/L he would have to rely on his GWI wrong, his failure as shipowner to deliver the tin. It seems to me probable that under any circumstance it is possible to imagine an action brought by the shipowner against the consigues of the cargo he would be entitled to reply cannot, sue me for you yourself are in default in respect of the nondelivery of the tin." But certainly supposing this hypothetical action be brought against. Hang Seng Cheong, he could not set up such a defence, for that would be setting up his fraud: and the complete auswer to him would be "it was through your own frand that I did not deliver the goods. " Aud ang Seng Cheong's assignee can be in no balfer position than Hang Seng Cheang.
you
But the argument can be disposed of on a broader ground. There is nothing in this assignment which makes it invalid, though per- haps it may be inoperative as against certain parties to the original transaction. To hold that the Hung Yui Bank can set up the ship- owner's default for not delivering the goods to the holder of the B. & would be to hold that the assignment by the holder of the I to the shipowner in default was altogether bad—which I cannot do.
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I therefore think that the plaintiff in the issue is entitled to the relief as claimed with costs, which include all costs which have been reserved.
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Mr. Slade Personally I cannot give you the names. Thers are abouy half a dozen of them.
Sir Henry Berkeley I am entitled to know the names because the ests are very important
Mr. Slade There is a list of them. I cannot give the names.
Sir Henry Berkeley-I must have them. The Chief Justice (to Mr. Slade)- assum you appear for all the creditors?
Sir Henry Berkeley - Not all of them The Chief Justice-Then we must have the
names.
Mr. Slado--All of them.
The Chief Justice-Your firm has been instructed by certain cralitors?
Chuen
Mr Slade--Yes; on behalf of the creditors. Mr. Slade then read the names as follows: Chum Hom King, $62,000 and representing two Persons; Sum Che (petitioning creditor,) $1,166; ¡A. F. de J. Soares, $950; Li Shu, Li Yee Cho and Li Sam Cho (represented by Ho Lok Kum), $3,500
Sir Henry-As far as the last three mentioned are concerned they live at Cant, and no proxies have been shown for Ho Lok Kum to repres-at them. He voted at the meeting -
Mr. Slade-We will prove that.
Sir Henry Be keley thu took a preliminary objection. The motion he had filel to expunge the proof of certain creditors applied to those very men who were asking the Court to do the extraordinary thing of rescinding own order made in this bankruptcy. Who were
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Mr-lade Because they are attacked" is no reason why their motion should be postponed. The petitioning creditor proved his debts in op 'n eet.
The Chief Justic -The petitioning craditor is and her person altogether. I cannot se bor you can appear for the debtor.
Mr. Shule I am very doubtful. The trus ́eb · has neglected his duty in not making the motion
himself.
The Chief Justice objection is goal
I think the proliminary
Sir Henry argued tat the petitioning creditor's prò af in the wituoss box in order tộ obtain a receiving order was nt the proof require 1. They believed tha petitioning creditor to be a “friendly cralitor and had brought the petition against the debtor tò defeat the claim of H Tung-a ju igment for over $1,000,
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Mr. Slade I would like to know who you appear for.
Does my friend appear for the Trustee
The Chief Justice-That is a legitimate question.
Sir Henry-I appear on each motion for the persons against whom my learned friend is bringing them.
The Chief Justic+~Your own motion?
Sir Henry On that I appear for the Trustee. It was decidod, after discussion, that the motion brought by Mr. Slade should be allowed to go on.
Sir Heury said the question of costs aroa. The Chief Justice remarked that the creditors' names had better remain on the list,
FX
Sir Henry-Yes. The Chisť Justice
it stands.
Sir Henry-Yes.
We will take the motion
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Mr Slade--I think my learned friend saw he was getting hoist by his own petard.
Sir Heury-The question of costs alters tactics.
Mr. Slade, proceeding with the motion, raid that when Ho Tung filed his proof of debt the debt amounted to $30,778.16. Later on he applied and obtained leave to amend it to $11,000, the balance $19,50 being "secured." The effect of this was that he would receive $19.500 out of the estate and a pro rata amount of what was left, whereas had he left the debt as it was he would only have received a pro rata amount. Counsel quoted authority to show
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