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Colonial Cases

In re Benjamin, 1886


In re Benjamin

Supreme Court for China and Japan
Rennie CJ, 10 November 1886
Source: North China Herald, 17 November 1886

Shanghai, 10th November 1886
Before Sir R. T. Rennie, Kt., Chief Justice.
In this case Mr. Benjamin David Benjamin sought to have set aside a bankruptcy notice served by the court upon him on the 21st October last, at the instance of Mr. James Cooper official liquidator of the London, Bombay and Mediterranean Bank, Limited.
  The following is the text of the Bankruptcy notice:-
In Bankruptcy,
To Benjamin David Benjamin, of 15 Kiukiang Road, Shanghai.
  Take notice that within seven days after service of this notice on you excluding the day of such service you must pay to James Cooper official liquidator of the London Bombay and Mediterranean Bank, Limited, by his attorney Henry Stead, of the Central Hotel, Shanghai, the sum of rupees24,090 and annas 13 for principal and rupees 6,986 and annas one for the interest thereon which sums being taken together amount to rupees 31,076 and annas 14 and are equal to Taels 10, 024 of Shanghai sycee claimed by him as being the amount due on a final judgment obtained by him against you on the High Court of Judicature at Bombay dated the 17th day of December, 1880, whereon execution has not been stayed, or you must secure or compound for the  said sum to his satisfaction or the satisfaction of the Court, or you must satisfy the court that you have a counter claim set off or cross demand against James Cooper, official liquidator of the London, Bombay and Mediterranean Bank, Limited, which equals or exceeds the sum claimed by him and which you could not set up in the action in which the judgment was obtained.
Dated 20th Oct., 1886.
By the Court, G. Jamieson, Acting Registrar.
[Not transcribed.]
  Mr. Wainewright said he did not pretend that his client had paid, or had a counter claim.
  His Lordship - Then why take this course.
  Mr. Wainewright replied, because the notice was grounded on a foreign judgment, and his client was entitled to plead non-indebtedness.
  His Lordship said he was at first impressed with Mr. Wainewrights's argument, but he now thought that this was not the time to decide whether the words "final judgment" in section 4 pf the Act applied to the case of a foreign judgment.  His Lordship referred to the case of Ex parte Roper, L.R. Ch. Div. XV, and read an extract from a judgment of Lord Justice James in which he says that in his opinion proceedings on a debtor's summons were wholly distinct from proceedings on a petition, and he could not accept the proposition that one was so connected with the other that evidence taken in one case could be used in the other.  The one was a proceeding to compel a man to commit an act of bankruptcy, and the other proceeded to make him a bankrupt.  The two were in his mind as distinct as if the one had been an action at law and the other a petition for an adjudication.  The evidence on this summons was strictly not evidence on the petition. His Lordship also quoted Cotton L.J. who expressed his concurrence with the foregoing decision, saying that so far as the point of law was concerned it might be taken to be concluded by the case of Thacker v. Hardy.
  His Lordship then said the points raised by Mr. Wainewright might be discussed hereafter on a petition for adjudication being presented.  It might be that the present proceedings would turn out to be nugatory but no grounds had been shown for setting aside the notice and the motion must be refused with costs.
  Mr. Wainewright applied to his Lordship to fix the costs, to which Mr. Latham offered no objection, but his Lordship declined, saying that the matter had better be left to the Registrar.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School