George Lyall, - Appellant; Jardine, Matheson, and Company, trading at Hong Kong, Charles Frederick Still, and George Francis Maclean, petitioning Creditors, and Frederick Sowley Huffam, Official Assignee, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 08 July 1870 |
| Date | 08 July 1870 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 45
ON APPEAL FROM THE SUPREME COURT OF HONG KONG.
Mews' Dig. tit. Bankruptcy, H. IV. Colonial Bankruptcies; tit. Colony, III. Appeals to Privy Council, 3. Leave to Appeal, 5. Principles on which Privy Council Acts. S.C. L.R. 3 P.C. 318; 39 L.J. P.C. 43; 22 L.T. 882; 18 W.R. 1050.
[116] ON APPEAL FROM THE SUPREME COURT OF HONG KONG. GEORGE LYALL,-Appellant; JARDINE, MATHESON, AND CO., trading at Hong Kong, CHARLES FREDERICK STILL, and GEORGE FRANCIS MACLEAN, petitioning Creditors, and FREDERICK SOWLEY HUFFAM, Official Assignee,-Respondents* [July 8, 1870]. On a petition for special leave to appeal the petition must fully and truly state all circumstances which, possibly can have any bearing on the leave asked for [7 Moo. P.C. (N.S,), 126]. Where, on the evidence submitted to the Court below, the Order was properly made, no appeal will lie on the ground that facts existed which would, if known to that Court, have led to a different Order being made, those facts not having been submitted to the Court. A member of a Firm carrying on business in London and Hong Kong, sent from London a power of attorney to his partners in Hong Kong, enabling them to petition the Court at Hong Kong for an adjudication of Bankruptcy; or to make an assignment of all their estate in trust for Creditors. Under this authority they petitioned the Court, which was, by the law of Bankruptcy in force there, in itself an act of Bankruptcy; and they also assigned the property of the firm to a Trustee, which was also an act of Bankruptcy by that law. About the same time a Partner of the Firm resident in London was adjudicated Bankrupt there, and a joint adjudication passed in Hong Kong against all the Partners, the latter being subsequent in date to the former:-Held, that it was not competent to the Partner in London to dispute the validity of the joint adjudication. Semble, a separate adjudication in England against the English resident Partner of a Hong Kong firm, is no ground for refusing in Hong Kong a joint adjudication against all the Partners, though one is not resident in the Colony [7 Moo. P.C. (N.S.) 132]. The case of Carter v. Dimmock (4 H.L.C. 337) explained [7 Moo. P.C. (N.S.) 131]. On granting special leave to appeal a sum of 300 was deposited as security for the Respondents' costs. Three sets of Respondents appeared separately. In affirming the decree appealed from it was ordered, that if the taxed costs of the Respondents amounted to a larger sum than one-third of the sum so deposited it was to be divided rateably [7 Moo. P.C. (N.S.) 133]. In this case special leave had been given by the Judicial Committee to the Appellant to appeal from an Order of adjudication in Bankruptcy made by the [117] Supreme Court at Hong Kong on the 23rd of May, 1867, by which the Appellant, together with the Respondents, Charles Frederick Still and George Francis Maclean, his co-partners in Hong Kong, were there adjudicated Bankrupts, pursuant to the provisions of the Hong Kong Bankruptcy Ordinance, No. 5 of 1864. The petition for leave to appeal was presented by the Appellant, on his own behalf, on the 12th of May, 1868, and the leave to appeal granted on the 15th of June in that year. The petition stated, that in April, 1867, the Appellant was, and for some time previously had been, carrying on the business of a Merchant in co-partnership with * Present: Lord Cairns, Sir William Erie, Sir James William Colvile, and Sir Lawrence Peel. 45 VII MOORE N.S., 118 LYALL V. JABDINE [1870] the Respondents, Still and Maclean, at Victoria, in the Colony of Hong Kong, under the style or firm of Lyall, Still and Co., and in Leadenhall Street, in the City of London, under the style or firm of George Lyall and Charles Frederick Still; that on the 18th of April,' 1867, the Appellant was, upon the petition of John Lyall, a Creditor of the Appellant in respect of a debt due from him, duly adjudicated Bankrupt in the Court of Bankruptcy in London, pursuant to the provisions of the Bankruptcy Act, 1861, and having surrendered to such Bankruptcy, on the 14th of February, 1868, passed his last examination thereunder ; that on the 23rd of May, 1867, the Respondents, C. F. Still and G. F. [118] Maclean, were, upon the petition of their Creditors, the Respondents, Jardine, Matheson, and Co., of Hong Kong, filed on the 21st of May, 1867, adjudicated Bankrupts by the Supreme Court of Hong Kong; that Still and Maclean, being at the date of such adjudication in Hong Kong, surrendered thereto, and passed their last examination, and respectively obtained their Orders of discharge thereunder; that the Petitioner was at the time of such adjudication in Hong Kong, and from that time had continuously been residing in England, and had no notice or knowledge whatever of the petition or adjudication in Hong Kong until on or about the 8th of July, 1867, when he received a Letter from Still informing him of the fact; that he was unable to show cause against the validity of the same within the time limited by the provision of the Hong Kong Bankruptcy Ordinance of 1864; that he was still subject to the jurisdiction of the Court of Bankruptcy in London, and that he was desirous to obtain leave to appeal to Her Majesty in Council for the purpose of disputing the validity of the adjudication made in Hong Kong on the 23rd of May, 1867; and was advised that unless he commenced some proceedings for that purpose within twelve months after the advertisement of his Bankruptcy in the Hong Kong Gazette, he would have no remedy, and that such adjudication would be final against him, and leave him exposed to serious pains and penalties under the provisions of the Bankruptcy Ordinance of 1864; and he prayed for leave to appeal from such adjudication of Bankruptcy in Hong Kong, and that the Supreme Court might be ordered to transmit the transcript of the proceedings and evidence on such adjudication. [119] The petition was supported by an affidavit of the Petitioner's Solicitor, which was an echo of the petition; to which was appended a copy of the Certificate of the Commissioner of the appointment of the Creditors' and Official Assignees of the Appellant in the London Court of Bankruptcy...
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