100
Mr. Potter-My friend admits that at one time we must have had three causes of action, but now there is some process, he has not given an instance, of these becoming merged.
His Lordship He quoted from the Law Journal. In all the cases that have been cited, and in others I have referred to myself, the Court as a rule has tried to got over the objec- tion if it could, and I would have done so if I could, but I don't think I can. There is one claim, simply for money owing and which ought to have been repaid on different dates, but has not been repaid. It seems to me that it is all one claim.
Mr. Potter-There was one point I intended to urge if this is permitted to be fully argued.
His Lordship When do you wish this full argument to take place ?
Mr. Potter-To-morrow. in Chambers. Mr. Orr-The point was reserved this morn- ing for judgment. My friend had ample opportunity to argue the case, and I think it is now not fair to me that it should be re-opened.
Mr. Potter-It is in your Lordship's power to hear further argument now, or on another day, if your Lordship thinks it is a point deserving of further argument.
His Lordship-It is not an easy point. Mr. Orr-I think the point was fully argued this morning. I would ask your Lordship to give judgment, and if my friend likes he can appeal.
Mr. Potter-My friend is quite within his rights as to splitting, and if it was simply a splitting of the action I would have been quite prepared to answer it, but something more has to happen before splitting takes place. My friend must first prove that all these causes of action are merged into one. It is a proposition not known to the law that any separate causes of action should be merged into one.
His Lordship-Suppose you had ten causes could you bring three writs?
Mr. Potter-We are always allowed to join, but where there are soparate and distinct actions there is no process by which they can be merged.
Mr. Orr-That is the whole point, whether they are separate or distinct actious. I would ask your Lordship to give judgment.
His Lordship-I must give judgment for the defendant, unless Mr. Potter wishes to amend.
Mr. Potter-The only way we could amend would be to agree that we won't recover a bal- ance of $1,000.
Mr. Orr I will ask for judgment and costs in each of the three actions.
Mr Potter-Not judgment, my Lord. Thi is a non-suit.
His Lordship-I will dismiss each action with costs.
Mr. Potter - Do I understand the judgment is that those three actions become merged into
one ?
His Lordship-I hold that they come under the section which states that there is one cause of action existing at the one time.
Mr. Potter-Your Lordship holds that the three writs form one cause of action?
His Lordship-Yes, and I think it would be a very good thing if there was an appeal. It is a very important point.
The actions were dismissed with costs.
Thursday, July 29th.
IN BANKRUPTCY,
BEFORE HIS HONOUR SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
A PETITION ADJOURNED. Re the Ko Tsan King.
Mr. R. D. Atkinson (of Messrs. Deacon, Looker and Deacon) said this matter was ad journed a fortnight ago in order to allow the Official Receiver to make inquiries as to whether there were sufficient assets in the shop. The assets, according to the declaration of assets, amounted, as far as the petitioning creditor conld say, to about $$7,700.
His Lordship-Is this the ginger shop? Mr. Atkinson--The preserved fruit shop. His Lordship-What is the state of the bankruptcy?
Mr. Atkinson-I understand there is an offer of $2,000 for the goodwill of the business, and those $2,0:0, so far as I am aware, are the only
!
|
THE HONGKONG WEEKLY PRESS AND
assets available to the debtor. The furniture and fittings were sold under a restraint for rent about ten days ago, and realised about $800. I believe there is a small balance besides this offer for the goodwill.
His Lordship - What are the liabilities? Mr. Atkinson-About 870,600, as far as the petitioning creditor can say.
The Official Receiver (Mr. Fletcher) - I don't agree with the statement that $2,000 has been offered for the goodwill. I was offered $500 for the whole of the business in the beginning, and Mr. Lammert, from whom I made on- quiries, considered that a good price. A man came and offered $2,000 if the sale was stopped. | I suggested to him that he should buy the business himself, and I understand that he did The business was sold at auction for $819 against a restraint of $1,220. The goodwill was not sold, but I think it was worth nothing.
Mr. Atkinson-I understand a man is ready to give $2,0 0 for the goodwill,
80.
His Lordship-There are not enough assets to warrant mo making an order.
Mr. Atkinson Would your Lordship adjourn the case for a week in order to ascertain whether the purchase for $2,000 can be put through or not?
His Lordship-I will adjourn it into Chambers. The matter can be discussed there.
RECEIVING ORDER GRANTED.
Re the Sang Cheong Chan.
Mr. Davidson (of Messrs. Hastings and Hastings), who appeared for the petitioning creditor, said this was a petition for a receiving order to be made against the Sang Cheong Chan firm. The debt was 600 taels, and the act of bankruptcy was that on June 30th notice was given to the petitoning creditor by the firm that they had suspended payment of their debts.
His Lordship-I have to see the notice of suspension.
Mr. Davidson-I can obtain that. Another act of bankruptcy is that the managing partuer has absented himself from the business.
The Official Receiver-He is the sole owner, and he has absconded. I think this is a cloar case for a receiving order.
His Lordship-What are the assets? Mr. Davidson-The only asset the petition- ing creditor is aware of is a quantity of timber worth $1,000. I understand this has been sold under restraint, the restraint has been satisfied, and I believe there is a balance of $800 or $900 left as well as some book debts of which the petitioning creditor has no information
His Lordship What are the liabilities? Mr. Davidson---That I don't know. The Official Receiver Between $800 and 8900 iu haud, and about $14,000 worth of book debts. I am satisfied there is a reasonable prospect of a dividend.
The order was granted.
REPORT BY THE OFFICIAL RECEIVER. Re Ynen Lan Hin.
The Official Receiver stated that Messrs. Deacon, Looker and Deacon had applied in Chambers in this matter for a receiving order. Debtor was a sub-contractor, and practically his only assets were $2,000 due under à contract. The speaker wrote to the War Department regarding the debtor, and received a reply that they had no knowledge of him, as he was not on the War Department list of contractors. In spite of that, Mr. Fletcher thought it was possible that there was some mistake in names, and that the debtor was a sub-contractor for another man. He asked that the application be postponed until he could make further inquiries.
The request was granted.
ADJUDICATION ORDERS.
Re Lam Wing.
The Official Receiver applied for an adjudi- cation order in this bankruptcy. The receiving order was made on January 13th, 1908, and the adjourned first meeting of creditors was held ou March 28, at which it was unanimously resolved that the debtor should be adjudged bankrupt and the Official Receiver appointed trustes. The public examination was held ou April 16th. It was customary for the solicitor who appeared for the debtor to apply for adjudication and file it, but in this case nothing had been none, so he would ask that the adjudication order be made
now.
His Lordship-When was the meeting of creditors?
[August 2, 1909; The Official Receiver-On March 28th, 1908, His Lordship-That prevents it going into the rubbish heap.
The Official Receiver-I apply in this con- nection that the Official Receiver should apply for a receiving order in every case. He presides at the meeting of creditors and reports to the Court, and it is customary at home for him to file-adjudication orders as it prevents delay.
His Lordship-I am not quite prepared to make a general order to that effect: I should say, unless an adjudication order is applied for within
a month.
The Official Receiver-I have made it a practice always to apply at once on the resolution of the creditors. A solicitor does not always know what the creditors have resolved, as he is not always present at the meeting.
His Lordship--I will consider it, and make a general order during the week if you will see me in Chambers. In this case I make the order.
SMALL INCOME AND LARGE FAMILY. Re C. M. Barradas.
The Official Receiver conducted the public examination of debtor.
C. M. Barradas said he had been employed as a clerk in the China Sugar Refining Co. for three years at a monthly salary of $125. Roughly, his liabilities totalled $1,500 and he had no other assets than his salary from the firm.
What family do you support on your salary?- I have a wife and eight children.
And only one of your children is earning a salary-Yes, my son receives $50 a month, out of which he gives me $30 and keeps 320.
And you rent a room to a Chinese cook for $5 a month? Yes.
Your indebtedness is chiefly owing to monies borrowed? Yes.
When did you start borrowing money?—Be. tween six and seven years ago.
And you have never been in a position to pay it off?— No.
And as loans become due and people pressed you, you borrowed more money to pay off the former loans?- Yes.
Have you had any extraordinary expense at any time-Doctors' bills.
What, roughly, have you spent this year on doctors?-Over $100, besides medicines for which I paid cash.
It has been reported to me by a creditor that either just before or after your petition in bankruptcy you gave a feast at your house on the occasion of the confirmation of one of your daughters. Is that correct?-It is not so.
The Official Receiver-That is all I wish to` ask the debtor. This is a very small bankruptcy, and some friends are willing to put up enough I have had a money to pay about 15 per cent. meeting of creditors, and they are willing to accept the composition.
The public examination was closed.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR MR. H H. J. GOMPERTZ (PUISNE JUDGE).
CLAIM FOR GOODS SUPPLIED.
His Lordship heard further ovidence in the action between Abdul Kador and Kirpa Ram and Mangtu Ram, in which the plaintiff sought
to
recover from the defendants $159.67 for goods supplied.
Plaintiff was represented by Mr. M. Reader Harris (of Messrs. Wilkinsou and Grist), snl the second defendant by Mr. J. H. Gardiner.
Judgment was reserved.
AN ABSENT WITNESS.
A case was called on in which Wong Fak Kin sued Chiu Fuk Kwan to recover $434.41, being as to 8103 for money lent; as to $38 for money paid by plaintiff to the Chun Wo firm on behalf and at the request of the defendant; and as to $293.41 damages for wrongful detention of one set of gold buttons, one gauze waistcoat and one pawn ticket relating to the pawning of one pair of pearl earrings mounted with gold.
Mr. P. W. Goldring (of Messrs. Goldring. Barlow and Morrell) represented the plaintiff, and Mr. Davidson (of Messrs. Hastings and Hastings) appeared for the defendant.
Mr. Davidson applied for an adjournment, stating that his Lordship had made an order that the case was to be tried yesterday subject to his friend furnishing particulars on Saturday, but
No comments yet.
Private notes are available after approval.