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Colonial Cases

In re Hornby and Hornby, 1898



In re Hornby and Hornby

Supreme Court for China and Japan
Wilkinson ACJ, 9 February 1898
Source: North China Herald, 14 February, 1898




Shanghai, 9th February.

Before H. P. Wilkinson, Esq., Acting Chief Justice.

RE EMILY CONSTANCE MAYO HORNBY and another, infants,


   Mr. Dowdall, acting Crown Advocate, appeared for Lady Hornby the Petitioner, for Mr. Morrison, Guardian ad litem of the infants, and the Hongkong and Shanghai Banking Corporation, and of the parties served.

   Mr. Stokes appeared for the Shanghai Real Property Association; and Mr. Parkes for the Shanghai Land Investment Company, other parties served.

   Mr. Dowdall summarised the petition which alleged that the petitioner, Lady Hornby, was married to the late Sir Edmund Hornby, Knight, at Shanghai on the 29th of April, 1875, that the children were Miss Emily Constance Mayo Hornby and Miss Catherine Hilda Hornby who remained infants under the age of 21 years; that Sir Edmund died on the 17th of November, 1876, the petitioner remaining his widow and guardian under his will of the children; that Sir Edmund had, during his life, given the children shares in the Shanghai Real Property Association, which shares had been registered in their names, and the income on which had been up to the date of his death invested in other securities, and that the investments at the date of the death included Shanghai Real Property Shares, Chinese Imperial E Bonds, Shanghai Land A Debentures, and money  on deposit with the Hongkong and Shanghai Banking Corporation.

   The Petition asked, the learned Advocate said, that the income should be paid to the mother as guardian for the maintenance of the infants. The application was made under the act above mentioned which was now called the Infants' Property Act 1830 and which enabled the Court to order that income of property absolutely belonging to infants, which they could not, on account of infancy, give a good discharge for, might be paid to their guardian. Mr. Dowdall went on to point out that the power of the Court under this old Act was quite discretionary and unhampered. If infants had property and the persons liable to pay dividends were reluctant to pay because the infants could not give a good discharge, the Courts could step in and name some one who could, so that the infants might not be deprived of the enjoyment of their property at a  time when it might be as useful to them as at any time afterwards., Counsel referred to decided cases to show that even when owners of property had settled it in such a way that the enjoyment of it by the persons with whom it was intended was unintentionally postponed, the Court had stepped in and authorised the immediate use if not only income but also capital.

   The cases referred to were Griggs v. Hobson, W. N. (1878) 143, Bennett v. Bennet, 10 Ch. D. 474, and Ramon vl Ramon, 27 W. R. 260.  Mr. Dowdall then proceeded to argue that no question was raised of the capability of the mother to maintain the children.

   His Lordship said that the presence of the Guardian ad litem without making objection rendered it unnecessary to go into that question.

   Mr. Dowdall referred to precedents of orders which had been made under the Act, when

   His Lordship suggested that if the form of the prayer of the petition was amended, a trustee might be appointed by the Court who would have power to change investments which might be a safeguard to the property.

   Mr. Dowdall thanked his Lordship for the suggestion and applied for leave to amend.

   Mr. Stokes pointed out that the order asked for did not deal with the question as to the capital, which would arise when one of the children as tenants in common became of age.   

   His Lordship said that Mr. Dowdall was to prepare minutes of the order which would settle this point.

   Mr. Parkes offered no opposition to the making of the order.

   His Lordship granted leave to amend and made an order as prayed and that a fit person should be appointed trustee.

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