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December 21, 1208.]
His Lorship-There is no domicile there. Mr. Hastings-The point we have to consider is what was this debtor's domicile of origin? My friend seems to assume in his affidarit a wrong state of affairs, viz. that as the debtor was, born in Hongkong his domicile of origin was here. That is not so. A Chinese child born here takes the domicile of his father. We have to consider the father's domicile at the time the debtor was born. The family house was Chin San. I submit he never had domicile here Assuming for the sake of argument that he had a Hongkong domicile, there was not the slight. est doubt that he abandoned it when he left Hongkong for three years, and removed his family house to Macao. Proceeding he pointed! out that the debtor was attempting an abuse of the process of the court. His debts amounted te $243,000 and he came here with $20,000 which his friends had subscribed and asked the court to whitewash him. This was like paying three halfpence in the £ or two-thirds of a cent in the dollar. There were no merits in his favour. His Lordship-The question which arises is that he was born here and is therefore a British subject.
Mr. Hastings--Birth in a place does not give domicile.
His Lordship-It alters the whole business of jurisdiction.
Mr. Hastings I submit he is not a British subject.
His Lordship--He is born here. Mr. Hastings-But never was domiciled. His Lordship-Is a person who comes within the Bankruptcy laws ? Is he a British subject? Then you can come to the question of domicile ?
Mr. Hastings-Granting for the sake of argument that he is a person to whom the Banktaptcy laws apply, then, where are we? I say the very fact of his birth 'here does not give him a Hongkong domicile. If a Frenchuman comes to London with his wife, and a child is born while they are there that does not give the son an English domicile. He takes the French domicile of his father. In like manner this man takes the domicile of his father. It is clear he did not live or carry on business here within the year preceding the petition. It is solely on the question of domicile that they rely.
Mr. Atkinson took two preliminary objections to the application, but his Lordship did not sustain them. Proceeding Mr. Atkinson said that it was necessary for the Taiwan Bank to prove that the making of the oftler would entail some disadvantage to them Their object was to get the receiving order rescinded, put the man in gaol, keep him there and squeeze his brothers.
His Lordship-No, no.
Mr. Atkinson It is almost a recognised process. He added that the judgment creditors had had their judgment for three or four years and had done nothing with it.
His Lordship-There are a great many difficulties in the way of enforcing an English judgment in China. The sooner I get rid of these difficulties the better I shall like it.
Mr. Atkinson-They have the protection and assistance of the British Consul. He is there to help them. They have no right to come here at all.
On the question of discretion, his Lordship remarked that he would never have granted the petition if he had known that there was only to be a payment of three halfpence in the £.
Mr. Atkinson said that the mere fact of the assets being swallowed up by, the costs was not sufficient to refuse the petition.
He
His Lordship held that it was. Mr. Dennys then addressed the court. wished his Lordship to say that the making of the receiving order bound the judgment creditor, and that the court had exercis its discretion with reference to the amount that was divisible among the creditors. With regard to the first point he admitted that if his friend succeeded in making his Lordship hold that the debtor was not domiciled here at the date of the receving order, he had a right to ask his Lordship to rescind it.
His Lordship thought he had raised this question as to the amount of the dividend.
Mr. Dennys was of the opinion that the court having exercised its discretion was bound by that decision. His friend's statment that the dividend was only at the rate of three half-
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CHINA OVERLAND TRADE REPORT.
pence in the £ was wide of the mark. The debtor was indebted for over half a million
dollars.
His Lordship did not think they need go on with that.
Mr. Dennys then produced a certificate signed by the then Governor of Hongkong that the debtor was born in the colony.
ally
certificate
His Lordship did not know of which he could receive.
Mr. Dennys--I want to show he is a British subject.
His Lordship --I grant you that. Mr. Dennys. This shows he was a British subject in 1884. He never had any intention of going back to his Chinese citizenship.
His Lordship-The two things are distinct- domicile and nationality.
prove
Mr. Dennys-In this case I have to nationality. If your Lordship gives any cred- ence to the debtor's statement he never had any intention of giving up his British nationality or his domicile and the proof is that he was a Justice of the Peace of the colony.
His Lordship-Nationality is evidence in favour of domicile. That is as far as you can go. Mr. Dennys-Of course his statement can be contradicted by his acts.
His Lordship The question of domicile usually arises after a man's death
Mr. Dennys then read a long affidavit by debtor and pointed out that there was no evi- dence as to the nationality of Wai Kwong, debtor's father.
His Lordship --I am afraid he is a Chinaman. He was born before Hongkong can into the possesion of Britain.
The affidavit then went on to explain that debtor would have been able to ineet his dehts had not his estate heen swallowed to meet the liabilities of a friend for whom he stood security His Lordship expressed the conviction that a Chinaman returned to the home of his an cestors.
Mr. Dennys pointed out that this place was not considered the preestral home.
His Lordship hold that they position of a Chinaman differel very little from that of au Indian in other British colonies. They could not hold that an Indian was domiciled out of India. He had got the desire implanted with- in him to return to the home of his fathers. in the breast of an Englishman.
Mr. Dennys-The sue fling is implanted
His Lordship -And of a Scotsman too. Mr. Dennys-I take it my domicile is held to be England, although I have been her 40
years,
His Lordship-Because when you
hava amassed your fortune you propose to return. (Laughter).
Mr. Dennys-I have expressed no desire to give up my British domicile. to be a British subject.
This man claims
His Lordship-There is such double nationality.
a thing as
The Chief Justice then perused the certificate hauded in and remarked that it stated that in 1884 he claimed to be a British subject.
Mr. Dennys-Yes.
His Lordship Are these certificates issued now?
stated that so and so, the son of a
Mr. Dennys-Yes. I remember one which father and a Chinese mother, was a
Dutch subject.
British
is an Act of Parliament for declaring nationality. His Lordship-It is very important. There
It authorises the Goverument to give these certificates subject to certain formalities. An informal certificate is very dangerous. These written on. certificates are not worth the paper they are
Mr. Dennys--The Crown Solicitor was not consulted on the subject.
His Lordship reserved his decision.
Wednesday, 16th December.
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IN ORIGINAL JURISDICTION.,
BEFORE THE CHIEF JUSTICE (SIR F. PIGGOTT).
A COMPRADORE'S AGREEMENT. Further argument was heard in the action raised by S. J. David and Company against
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453
Chan Ut Chui, a former compradore for the recovery of $648,816 damages under a com- pradore's agreement.
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Hon. Mr. Pollock, K.C., instructed by Mr, Jackson, of Messrs. Johnson, Stokes and Mas- ter, appeared for the plaintiffs, while defendant was represented by Sir Henry Berkeley, K.C.. instructed by Mr. J. Scott Harston.
His Lordship, alluding to clause 8 which referred to the responsibility of the compradore to make good to the firm all monies, losses, etc., said he could not follow from counsel's argument why that did not supply the personal covenant in the mortgage.
Mr. Pollock submitted that the words referred to must import personal liability.
His Lordship wished to know whether that stood in lieu of the ordinary personal covenant.
Mr. Pollock agreed that it was equivalent to a personal covenant. He would like to draw his Lordship's attention to the word "all," and sub. mitted that it showed personal liability and was to extend to moneys, losses etc. and not merely to extend to a balance after deducting the value of the mortgaged premises and after deducting the sum of $55,000.
His Lordship replied that if he were to hold that that clause in the agreement was equivalent to the personal covenant in the mortgage, then possibly plaintiff's rights would be the same as if they had got a personal covenant.
Mr. Pollock agreed that was so and contended that clanse 12 showed defendant was bound to make good to the plaintiffs all losses in connec- tion with the firm's business sales, agreements or transactions. The clan obviously contem- plated an account being run up against the com- pradore. Taking clauses 8 and 12. his Lordship should hold that there was personal liability to of the mortgaged property and the $55,000 an unlimited amount, not limited by the amount
deposited, and it was absolutely clear that the compradore agreed to be liable inter alia for lossos arising from or in connection with the business.
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Sir Henry Berkeley said he was going to argue that the two documents should be read as one. The two documents constituted the trust of surety and therefore the agreement between the parties was one of suretyship. The point was whether the concluding part of clanse 3 of the agreement might be read as if it formed the precise terms of the mortgage security.
His Lordship-Whether it does not stand in lieu ofit?
Sir Henry Berkeley-Yes. Proceeding, he respectfully submitted that the concluding words did not constitute an agreement on the part of the compradore to pay all losses sustained by his employers under their contracts with the Chinese dealers. He contended that nothing was due under the mortgage because there was no personal covenant in the mortgage to pay.
In the course of subsequent discussion refer. euce was made to the method of conveyancing, upon which his Lordship remarked-I only wish we could adopt the French system of convey- ancing This is most complicated. If some. body would only study French conveyancing it would be quite simple; you simply say what you
mean,
Argument was concluded and his Lordship indicated that he would endeavour to give
ndgment before next Wednesday.
IN SUMMARY JURISDICTION.
BEFORE MR. H. H. J. GOMPERTZ (ACTING PUISNE JUDGE).
be
CLAIM AGAINST A SHIPPING COMPANY. The action in which Yun Wan, who I claimed
to
the lawful husband of Yun Yan Shi, deceased, and Yun Ah Mai, the infant danghter of both, sought to recover from the Indo-China Steam Navigation Company Limited $1,000 damages for loss sustained by the death of the said Yan Yan Shi, was continued. Plaintiff alleged negligence of the defendants' servants in navigating the 8.8, Loong Sang in the harbour of Hongkong on 19th June, 1903, whereby a collision took place between the Loong Sang and the licensed junk No. 2666 on which the said Yun Yan Shi was a passenger. The deceased had been in receipt of from 812 to 815 per month as wages and had contributed up to the time of her heath towards
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