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Colonial Cases

In re Cunningham, 1899



In re Cunningham

Supreme Court for China and Japan
Bourne ACJ, 19 September 1899
Source: North China Herald, 29 September 1899




(In Bankruptcy.)

Shanghai, 19th September.

Before Mr. F. S. A. Bourne, Acting Chief Justice.


   This was an application by Alfred Cunningham for his discharge in bankruptcy.

   Mr. F. Ellis (Messrs. Browett and Ellis) appeared for the debtor.

   Mr. Ellis informed his Lordship that he wished to apply for his client's discharge. His Lordship had before him the report of the Official Receiver and it was purely on that document that his Lordship would have to decide as to the form of discharge to which the debtor would be entitled or could avail himself of. So far as he (Counsel) knew there was no opposition or feeling against his client obtaining his discharge.

   In reply to his Lordship, Counsel stated that the creditors had all been served with a notification of his client's application for discharge, but that they were not represented by Counsel.

   His Lordship - I have read through the papers and it seems to me to be a case with which I shall be justified in dealing with as much consideration as the law will allow.   

   Mr. Ellis said as his Lordship could not give his client his absolute discharge it was in his Lordship's power and discretion to make the suspension of the discharge for two years, dating from the adjudication of the bankrupt - namely, March,1898.

   His Lordship sad he did not think he could make the order retrospective unless Counsel could show him some authority.

   Mr. Ellis admitted he had not been able to find any such precedent; but from the words 'as from' such and such a date in the form of order he took it that it implied his Lordship had the power to make the order retrospective.

   His Lordship said he could not accept that, but if Counsel would like an adjournment in order to find an authority he would grant one.

   Mr. Ellis said he would like to avail himself of an adjournment.

   His Lordship - Then we will reserve that point. Is there any creditor here who has anything to say with regard to the debtor's application? The order may be effective two years from date, or possibly earlier, if Mr. Ellis can find a precedent.

   Mr. T. W. Kingsmill - Well, my Lord, simply as a creditor, I think it is a case where the debtor can very fairly be granted at the earliest possible moment his discharge. He is doing his best to earn money. He has been offered an appointment of very great importance to him, and I, for my part, would like to see him treated as leniently as the law will allow. I may say I have spoken with the other creditors, who agree with me.

   His Lordship - Very well, I will make a note of that. You would like to see him treated as leniently as possible.

   Mr. A. Leake - As another creditor and the Trustee, I support the remarks of Mr. Kingsmill. The debtor gave me no trouble in the discharge of my duties, and facilitated them to the best of his ability.

   Mr. E. H. Burrows, Official Receiver, informed his Lordship that the debtor had committed no other offence under the Bankruptcy Acts, 1889 and 1890, than that mentioned in his (the Official Receiver's) report.

   His Lordship - I think, subject to the point that has been reserved, I am quite justified in taking a lenient view of this case. The debtor is young, and his failure to pay his debts might very well have arisen from inexperience. That I imagine is one of the objects of the Bankruptcy Act - to give a man a fresh start in life. The creditors take that view, and I hope on Thursday, after I have heard Mr. Ellis, to be able to make an order for discharge as early as possible or two years from date.

21st September.

   This was the adjourned application of A. Cunningham for his discharge.

   Mr. Francis Ellis, who appeared for the debtor, said that he had been unable to find a precedent making an order of discharge retrospective, but he had found a case, in which an application for discharge was made before Sir Nicholas Hannen on the 8th of July, 1897, In re Lee See-ching. In that case the debtor was adjudicated bankrupt on 21st December 1896, and on the 8th July 1897, Sir Nicholas Hannen made an order suspending the discharge for one year, therefore the debtor obtained his discharge in one year and seven months from date of adjudication. (Report of case, North China Herald put in).

   His Lordship after reading the case said he thought he could follow the case cited, as he had no doubt the Chief Justice took into consideration local conditions, and that he thought a year in China was equivalent to two years at home, for most of us lived here no longer than we were obliged. The same principle operated in criminal cases where for instance three months' imprisonment was considered equal to six months at home.  He thought therefore in following the case he was justified in making an order for the discharge of the applicant one year from date.

   Mr. Ellis asked whether it would be necessary for his client to return to Shanghai.

   His Lordship said he did not think so, as he would make an absolute order suspending the discharge until 21st September,1900, and when that date came round the order would take effect.

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