ALIEN ENEMIES (WINDING UP) ORDINANCE, 1914

ALIEN ENEMIES (WINDING UP) ORDINANCE, 1914

No. 28 of 1914.
An Ordinance to provide for the winding up of the affairs
of certain alien, enemies.

[27th October, 1914.]

WHEREAS it is necessary that certain alien enemies should be ordered
to quit the Colony and that certain other alien enemies should be,
detained : AND WHEREAS it is expedient that provision should
be made for the winding-up of the affairs of such alien enemies in
order to prevent loss to them. and to other persons :

1. This Ordinance may be cited as the Alien Enemies
(Winding up) Ordinance, 1914.

2. In this Ordinance,

(a) Alien enemy means an alien whose sovereign or
state is at war with His Majesty, and includes every body
corporate incorporated or established in the territory, or
within the jurisdiction, or under the laws, of any sovereign
or state that is at war with His Majesty, and includes every
firm which has, or which at any time since the outbreak if
war has had, a partner or an office in the territory of any
sovereign or state that is at war with His Majesty.

(b) Corporation under enemy control means-

(i) a corporation of which any director or person occupy-
ing the position of a director, by whatever name called, is an
enemy or enemy subject; or

(ii) a corporation in which ten per cent or more of the issued
capital or voting rights are held by, or directly or indirectly
for or at the disposal of, enemies or enemy subjects; or

(iii) a corporation which is by any other means, whether of
a like or a different character, in fact under the control
directly or indirectly of enemies or enemy subjects or corpora-
tions under enemy control; or

(iv) a corporation the executive whereof is a corporation
which falls within the terms of paragraphs (i) ' (ii) or (iii) of
this definition, or is an enemy.

* As amended by No. 30 af 1914, No, 11 of 1917 and Law Rev. Ord., 1924.





(c) Enemy, except in the term alien enemy , means-

any natural person who is or is treated as an enemy
under any Act of Parliament, Order in Council, Royal
Proclamation, or Ordinance, for the time being in force; or

(ii) any corporation which is or is treated as an enemy
under any Act of Parliament, Order in Council, Royal
Proclamation, or Ordinance, for the time being in force; or

(iii) any firm, or other composite person other than a cor-
poration, any member of which is or is treated as an enemy
mider any Act of Parliament, Order in Council, Royal
Proclamation, or Ordinance, for the time being in force.

(d) Enemy subject means a subject of a state for the
time being at war with His Majesty, and includes a body
corporate constituted according to the laws of such a state.

(e) Immovable property includes every right and every
interest, whether legal or equitable, in, to or arising out of
immovable property.

(f) Legal proceeding includes an arbitration, and refer-
ences to the bringing of legal proceedings against any
persons shall in the case of arbitrations be construed as
referring to the commencement of arbitrations to which such
persons would be parties.

(g) Person means any natural person, company, firm,
or association or body of persons corporate or unincorporate.

(h) Property includes every right or interest whatsoever
in, to or arising out of any property.

(i) Property tinder prohibited controV means any prop-
erty which is held wholly or partly by or for or on behalf
of or in trust for or for the benefit of or subject to the control
of an enemy or an enemy subject or a corporation under
enemy control or any person who but for the conclusion of
any peace made in relation to the present war would be an
enemy or an enemy subject or a corporation under enemy
control.

(j) Trade includes every kind of business, occupation
and work.





3. If any question arises under or in consequence of this
Ordinance as to whether any person is or was an alien enemy
or not, a certificate under the hand of the Colonial Secretary
that in his opinion such person is or was an alien enemy
shall be sufficient proof for all purposes that such person is
or was an alien enemy as the case may be, and the onus of
proving that such person is not or was not an alien enemy
shall lie upon the person asserting such to be the case.

4.-(1) No alien eneiny shall carry on any trade, or do
any act in furtherance of or in contemplation of any trade,
or make any disposition of any property without the
permission of the Govenior conveyed by any officer duly
authorised in that behalf.

(2) No firm which has an alien enemy partner or in alien
enemy manager shall carry on any trade, or do any act in
furtherance of or in contemplation of any trade, or make any
disposition of any property without the permission of the
Governor conveyed by any officer duly authorised in that
behalf.

(3) No person shall without the permission of the Governor
pay any money or part with any property whatsoever to or
for the benefit of any alien enemy, or in any way deal with
any property for the benefit of an alien enemy whether such
alien enemy be within or without the Colony.

(4) Any permission referred to in this section may be given
subject to such conditions, restrictions and limitations as the
Governor may think fit.

(5) All permissions and licences previously given to alien
enemies in the Colony shall absolutely cease and determine
from the date of coming into operation of this Ordinance.

5.-(1) When an alien enemy has been ordered to quit
the Colony, or has been made a prisoner of war or has been
detained for any other reason, or is about to be made a
prisoner of war or to be detained for any other reason, or is
absent from the Colony, it shall be lawful for the Governor
to appoint any person whom he may think fit as liquidator
to wind up the affairs of any trade formerly carried on in
the Colony by such alien enemy, whether on his own account

As amended by No. 30 of 1914.
As amended by No. 30 of 1914, No. 11 of 1915 and Law Rev. Ord., 1924,





or on account of himself and a partner or on account of an
employer or principal, and to wind up the personal affairs of
such alien enemy.

(2) Such liquidator may be appointed although such alien
enemy may have been carrying on such trade wholly or partly
on behalf of a person who is not an alien enemy.

(3) Such liquidator may be appointed although the trade
carried on in the Colony by such alien enemy may have been
a branch or the head office of a trade carried on also outside
the Colony.

(4) The appointment of any such liquidator shall be made
by writing under the hand of the Colonial Secretary, and
slich writing shall be conclusive evidence of such appointment
for all purposes whatsoever until the appointment has been
revoked.

(5) It shall be lawful for the Governor to revoke any such
appointment at any moment in his absolute discretion, and
upon the communication of such revocation to the liquidator
his powers as liquidator shall absolutely cease and determine,
without prejudice however to any acts bond fide done by him
as liquidator before the communication of such revocation of
such appointment, and without prejudice to the rights of any
persons who inay bona fide deal with him without notice of
any such revocation.
(6) The rights and powers of any such liquidator shall
take effect from the date of his appointment.
(7) Any such liquidator shall for all purposes whatsoever
have as full rights and powers as if the whole of the trade
previously carried on by such alien eneiny, together with the
goodwill of such trade and every part thereof, and all the
property of every description previously employed in or in
connexion with such trade, or any branch of such trade
outside the Colony, and all the property in the Colony of such
alim enemy, or standing in his name, had been absolutely
assigned for valuable consideration to such liquidator, and
as if all the contracts of such trade, and all the contracts of
such alien enemy with regard to his private affairs, had
originally been entered into with such liquidator, and in
particular the appointment of a liquidator of the trade of an
alien enemy under the provisions of this Ordinance shall not
alter, vary or affect in any way any liability or obligation of





any compradore of any such trade, or of any surety of any
such compradore, as existing immediately before the appoint-
inent of the liquidator, nor shall such appointment operate
to discharge any such compradore or any surety of any such
compradore in respect of any such liability or obligation or
to give him or any person who has mortgaged, pledged,
charged, assigned or given any property to secure any such
compradore any rights such surety or person would not
otherwise have had whether in respect of any personal
obligation or of any property mortgaged, pledged, charged,
assigned or given as security or otherwise: Provided that
no such liquidator shall, as against any third parties, be
entitled to insist on the continuance of any partnership Or
agency or any contract for the performance of any personal
service by such alien enemy, otherwise than may be necessary
fOr the purposes of such winding-up.

(8) Any proceedings, except proceedings in bankruptey
against an alien enemy, which if this Ordinance had not
come into operation might have been brought by or against
such alien enemy in respect of such trade or in respect of the
private affairs of such alien enemy may be brought by or
against such liquidator: Provided that no liquidator shall
incur any liability in respect of any such winding-up beyond
the assets which may have come to his hand and which shall
not have been bona fide parted with by him in the course of
such winding-up: Provided also that no liquidator shall
incur any personal liability in respect of any such winding
up except for such acts or defaults as would be criminal in
the case of a natural person.

(9) Any such winding-up may be carried out without any
authority for any act or omission being required from any
person outside the Colony.

(10) Every such winding-up shall, subject to the just
rights of any other persons, be carried out as for the benefit
of the persons entitled to the profits of such trade, or to
any property dealt with by the liquidator, and all proceeds
realized by such winding-up shall be paid into a bank
approved of by the Governor to await the ultimate disposal
thereof in accordance with such law as may be enacted, or
such directions as may be given by the Governor, in that
behalf.





(11) Every liquidator shall be entitled to retain out of the
assets of the trade, or out of the personal assets, of the alien
enemy whose trade or personal affairs respectively he has
been appointed to wind up, the expenses incurred by the
liquidator in the course of such winding-up, including (a)
the rent of any business premises formerly occupied by
such alien enemy which shall accrue while such premises
are occupied. by the liquidator for the purpose of such
winding-up, (b) audit fees, and (c) any money which may be
advanced by the liquidator for the purposes of such winding-
up, and also a sum of money equal to two and a half per
cent. on the total assets realized or brought to credit by the
liquidator, as remuneration for his loss of time and trouble.

(12) In case the assets of any such trade, or the personal
assets of any such alien enemy shall be or become insuf-
ficient to meet all the corresponding liabilities, such assets
shall be applied in the following order of priority:-

Firstly, the expenses incurred by. the liquidator in the
course of such winding-up, including (a) the rent of any
business premises formerly occupied by such alien enemy
which shall accrue while such premises are occupied by the
liquidator for the purpose of such winding-up, (b) audit
fees, and (c) any money which may be advanced by the
liquidator for the purposes of such winding-up.

Secondly, a sum of money equal to two and a half per cent.
on the total assets realized or brought to credit by the
liquidator, to be retained by him as remuneration for his
loss of time and trouble.

Thirdly, all sums of money due to secured creditors up
to the value of their respective securities.

Fourthly, the salary or wages of any clerk or servant in
respect of services rendered since the 31st day of July, 1914,
less any sum of money due by such clerk or servant to such
alien enemy, or the compradore of such alien enemy.

Fifthly, all sums of money due to the Crown.

Sixthly, all other liabilities rateably parl. passu whether
due to persons within or without the Colony: Provided that,
in the case of the winding-up of any trade formerly carried
on in the Colony by an alien enemy which was a branch of
a trade carried on also outside the Colony, such liabilities in
the opinion of the liquidator arise out of transactions entered





into by or on behalf of such branch within the Colony and
are not liabilities which would ordinarily have been dis-
charged by branches of such trade outside the Colony.

(13) In case the nett assets of any such trade., or the nett
personal assets of any such alien enemy, after deducting the
value of all securities held by secured creditors, shall be or
become insufficient to satisfy the total sums of money which
the liquidator is entitled under sub-section (11) to retain,
every secured creditor shall be liable to pay to the liquidator
stich proportion of the sum by which the nett assets as
above defined are insufficient for the purpose aforesaid as
the value of his security may bear to the total assets realized
or brought to credit by the liquidator.

(14) The accounts of every such liquidator with respect to
any such winding-up shall be audited in such manner as the
Governor may direct.

(15) Every person who shall, without lawful excuse, refuse
to hand over to a liquidator on demand any keys, safe, office
furniture, account books, cheque books, or other things of
any nature whatsoever, of which he may be in possession,
and which may have been used in connexion with or which
may relate to the trade or personal affairs of the alien enemy
whose trade or personal affairs respectively such liquidator
has been appointed to wind up, and every person who shall,
without lawful excuse, in any way obstruct any liquidator in
taking possession of any premises occupied by or on behalf
of such alien enemy immediately before the appointment of
such liquidator, shall be deemed to commit an offence against
this Ordinance.

(16) Notwithstanding anything in this Ordinance con-
tained, the Governor shall have power, in any case where it
shall appear to him that the remuneration of any liquidator
under the foregoing provisions would be inadequate, to
award to such liquidator such remuneration as he shall think
fit, and thereupon such liquidator shall be entitled to retain
such increased remuneration out of the assets of the trade, or
out of the personal assets of the alien enemy whose trade or
personal affairs respectively he has been appointed to wind
up: Provided that nothing in, this sub-section shall be con-
strued as affecting the rights of any secured creditor of such
alien enemy.





(17) Subject to the provisions of this Ordinance, every
such liquidator shall conform with any directions which may
be given to him by the Governor.

(18) In sub-sections (11), (12) and (103) the total assets
realized or brought to credit by the liquidator shall be
deemed to include all credit balances in any bank in ally
account formerly operated on. by the alien enemy whose trade
or personal affairs such liquidator was appointed to wind up,
and all sums of money due and payable to any such alien
eneiny by his coinpradore immediately before the appoint-
ment, of such liquidator, but no liquidator shall be entitled
to any remuneration an any such balance or sum of money
without the express permission of the Governor.

(19) It shall be within the absolute discretion of the
Governor to determine whether any remuneration on any
such balance or sum of money shall be drawn.

(20) Any remuneration on any such balance or sum of
money drawn by any liquidator before the 7th day of May,
1915, shall, unless the Governor otherwise directs, forthwith
be repaid or placed to the credit of the alien enemy whose
trade or personal affairs such liquidator was appointed to
wind up.

6.-(1) No person shall without the permission of the
Governor carry on or engage in the trade or any part of the
trade formerly carried on by any alien enemy.

(2) Any such permission may be given subject to such
conditious, limitations and restrictions as the Governor may
think fit.

(3) If any person acts in any way for any former principal
of such alien enemy, or corresponds or deals with any person
with whom such alien enemy formerly had trade relations,
he shall be presumed to be carrying on the trade formerly
carried on by such alien enemy, unless he shall prove to the
satisfaction of the magistrate or the court or the jury, as the
case may be, (a) that such trade was bona fide assigned or
parted with or abandoned by such alien enenty before the
5th day of August, 1914, or (b) that he has bona fide
established new trade relations with such principal or person

As amended by No. 30 of 1914.





without the intervention or assistance of such alien enemy,
and that he is not trading in any way on account of or for
the benefit of any alien enemy.

7.-(1) In any case in which it is suspected that any
offence, under this Ordinance has been committed by any
person and in any case in which it is anticipated that any
such offence is about to be committed by any person, a
magistrate may on oath being made before him to that effect
authorise by warrant under his hand and seal, which may be
in Form No. 1 in the Schedule, any person or persons named
in the said warrant-
(a) to inspect all books and documents belonging to or
under the control of any person by whom it is suspected
or anticipated that such offence has been or is about to be
committed;
(b) to require any person whom he may consider able to
give any information respecting the business or trade of any
person by whom it is suspected or anticipated that such an
offence has been or is about to be committed to give such
information;
(c) if accompanied by a police officer, or if himself a
police officer, to search ally premises specified in the
information as having been or being used in connexion with
such business or trade;
(d) to seize and take possession of all books, documents
and things discovered in the course of any such inspection
or search which inay appear to furnish any evidence that
any offence under this Ordinance has been or was about to
be-committed; and
(e) to do all such acts and things as may be reasonably
necessary for the purpose of effecting such search.
(2) In any case in which by reason of the apparent
urgency of the occasion it shall appear to be impracticable
to obtain such warrant from a magistrate in time, it shall
be lawful for the Captain Superintendent of Police, or the
Deputy Superintendent of Police, or any Assistant Super-
intendent of Police, by order in writing under his hand,
which may be in Form No. 2 in the Schedule, on such
grounds as he may think fit and without ally information

As amended by Law Rev. Ord., 1924,





being laid or sworn, to authorise any person or persons
named in such order to do all such acts and things as he or
they might have been authorised to do by a warrant issued
by a magistrate under sub-section (1).

(3) Every person who refuses or neglects to produce any
books or documents belonging to or under his control or in
his possession or physical custody, or to give any informa-
tion within his knowledge, on demand, to any person or
persons authorised by any such warrant or order in writing
aforesaid to inspect such books or documents or to require
such information, and every person who obstructs any
inspection, search or seizure authorised by any such warrant
or order in writing aforesaid, shall be deemed to commit an
offence against this Ordinance.

8. No alien enemy shall be entitled to present a bankruptcy
petition himself.

9. All the amendments made by Ordinance No. 30 of 1914
in Ordinance No. 28 of 1914 shall be deemed to have been
made in Ordinance No. 28 of 1914 immediately upon the
coming into operation of Ordinance No. 28 of 1914.

10.-(1) No action or other legal proceeding shall without
the permission of the Governor be brought by or against any
liquidator appointed under this Ordinance in respect of the
trade or personal affairs which such liquidator was appointed
to wind up, or against any alien enemy whose trade or
personal affairs a liquidator has been appointed to wind up.

(2) Any stich permission may be limited to the taking of
such proceedings only as may be necessary in order to
prevent the operation of any enactment whereby the com-
mencement of the action or legal proceeding might be limited.

As amended by No. 30 of 1914 and Law Rev. Ord., 1924.
As amended by No. 11 of 1915 and Law Rev. Ord., 1924.





ALIEN ENEMIES (WINDING UP). No. 28 of 1914. 207

(3) No further proceeding of any kind whatsoever shall
without the permission of the Governor be taken in any
action or other legal proceeding which was begun before the
7th day of May, 1915, by or against any such liquidator in
respect of the trade or personal affairs which he was appointed
to wind up, or against any alien enemy whose trade or
personal affairs a liquidator has been appointed to wind up.

(4) No further proceeding of any kind whatsoever shall
without the permission of the Governor be taken in any
action or other legal proceeding which was or shall have been
begun against any such alien enemy before the appointment
of a liquidator to wind up the trade or personal affairs of
such alien enemy.
(5) Where by the law and practice of the Supreme Court
or by any special order any limited time from and after any
date or event is appointed or allowed for the doing of any act
or the taking of any proceeding in any such action or other
legal proceeding as is referred to in this section, any time
which. elapses between the 7th day of May, 1915, and the
date on which any permission of the Governor to take further
proceedings in the said action or other legal proceeding shall
be served on the other party or parties by the party obtaining
such permission, both dates inclusive, shall not be reckoned
in the computation of such limited time.

(6) No execution of any kind whatsoever shall without the
express permission of the Governor issue against any such
liquidator or any such alien enemy in any such action or
other legal proceeding as is referred to in this section,
whether any general permission to begin the action or other
legal proceeding or to take further proceedings therein shall
have been obtained from the Governor or not.
(7) No plaintiff in any such action or other legal proceeding
as is referred to in this section shall be deemed to be a
secured creditor by reason only of any order or judgment
made or given in such action or other legal proceeding before
the 7th day of May, 1915, or by reason only of such order or
judgment and of any steps taken thereunder.

11. Every order and judgment duly made or given in
any action or other legal proceeding brought by or against
any liquidator appointed under this Ordinance in respect of

As amended by No. 11 of 1915 and Law Rev. Ord., 1924.





the trade or personal affairs which such liquidator was
appointed to wind up shall for all purposes and in all respects
be as binding on the alien enemy whose trade or personal
affairs such liquidator was appointed to wind up and on all
the persons entitled to the profits of such trade as if the
action or other legal proceeding had been brought by or
against, and the order or judgment had been made or given
for or against, such alien enerny and persons as well as by,
against, or for such liquidator.

12. The Supreme Court shall have power to stay any action
or other legal proceeding brought against any liquidator
appointed under this Ordinance in respect of the trade or
personal affairs which such liquidator was appointed to wind
up in any ease in which it shall seem to the court to be
desirable to do so in the interests of justice on account of the
liquidator being unable to obtain proper instructions from
the alien enemy whose trade or personal affairs such liquidator
was appointed to wind up, or on account of any similar
reason.

13. The Supreme Court shall have power, of its own
motion or at the application of any party or on the representa-
tion of the Crown, to stay any action or other legal proceeding
brought against any alien eneiny in any case in which it may
seem to the court to be desirable to do so in the interests of
justice on account of the impossibility of obtaining proper
instructions from such alien enemy owing to the state of war
which exists between His Majesty and the state to which
such alien enemy belongs, or on account of any similar reason.

14.-(1) Any liquidator appointed under this Ordinance
shall with the permission of the Governor be entitled to
apply to the court for directions on any matter arising out of
the winding-up.
(2) Any such application shall be heard and determined
in such manner as the court may direct, and it shall be
lawful for the conrt to hear such parties and person as it
may think fit.

(3) The costs of any such applicailon shall be in the
direction of the court.

As amended by No. 11 of 1915, No. 11 of 1917 and Law Rev Ord., 1924.
As amended by No. 11 of 1915 and Law Rev. Ord., 1924.





(4) No claim for any costs awarded against such liquidator
on any such application shall have any priority over any
other claim against such liquidator in respect of the winding-
up.

15. Any liquidator appointed -under this Ordinance shall
with the permission of the Governor be entitled to discharge
out of the assets in his hand any liability of the alien enemy
whose trade or personal affairs such liquidator was appointed
to wind up, although such liability may have arisen out of
a, transaction entered into by such alien enemy on behalf
of a branch of his trade outside the Colony and may not be
a liability which would ordinarily have been discharged by
such alien enemy within the Colony.

16. No liquidator shall without the express permission of
the Governor assign away the goodwill of the trade or of any
part of the trade which he was appointed to wind up, or
any trade mark used in connexion therewith.

17.-(1) The power of appointing a liquidator conferred
on the Governor by section 5 shall be deemed to include and
at all times to have included the following powers:-

(a) power to appoint a liquidator of the trade, or personal
affairs of any alien enemy whether such alien enemy has
ever been in the Colony or not;
(b) power to appoint a liquidator of the trade or personal
affairs of any person any of the property, of whom was for
any purpose whatsoever in the possession, custody or control
of any person whose trade or personal affairs a liquidator
has been appointed to wind up;
(c) power to appoint a liquidator of the estate of any
deceased alien enemy;
(d) power to appoint a liquidator of the estate of any
deceased person of whose estate an alien enemy is executor
or administrator;
(e) power to appoint a liquidator of the trade or personal
affairs of any person who is or at any time since the outbreak
of war has been a partner or a joint owner or an owner in
common with any alien enemy;

As amended by No. 11 of 1915 and Law Rev. Ord., 1924.
As amended by No. 11 of 1917 and Law Rev. Ord., 1924.





(f) power to appoint a liquidator of the affairs of any
association of persons or organisation which is or at any time
since the outbreak of war has been composed in whole or
part of alien enemies or which at any time since the outbreak
of war has been in whole or part represented in the Colony
by an alien enemy;

(g) power to appoint a liquidator of the affairs of any
person if the Governor thinks it advisable on account of the
enemy nationality or association of such porson.

(2) Every stick liquidator shall have as full rights and
powers as any other liquidator appointed under this Ordi-
nance.

(3) The Governor shall be deemed to have and at all
times to have had power to give directions for the sale or
disposal of any property which at any time since the out-
break of the present war has been in the possession, custody
or control of any alien enemy and which is not claimed by
any person who is not an alien enemy.

18.-(1) Every liquidator appointed under this Ordinance
to wind up the affairs or estate of any person shall for all
purposes whatsoever be deemed to have power, and at all
times to have had power, while acting as such liquidator,
to transfer all the property of whatever description within
the Colony of such person, or vested in such person, or
belonging to such estate, in all respects as fully as if the
transfer had been duly made or executed by or on behalf
of such person, or by or on behalf of his legal personal rep-
resentative, as the case may be, whether such liquidator
can or cannot produce any title-deeds or other documents
of title relating to such property, and any such transfer by
such liquidator shall be deemed to pass all the legal estate
in such property which may be or was vested in such
person, or in his legal personal representative, at the date
of such transfer.

(2) Nothing in this section shall be construed as limiting
in any way whatsoever any powers which any liquidator
appointed under this Ordinance would have possessed if
this section had not been enacted.

As amended by No. 11 of 1917 and Law Rev. Ord., 1924.





19. The rights and powers of a liquidator under this
Ordinance shall pass, and shall be deemed always to have
passed, from liquidator to liquidator, so as to be exerciseable
by the liquidator for the time being during his continuance
in office.

20.-(1) In every winding-up under this Ordinance, it
shall be lawful for the liquidator to distribute the assets in
the first instance on the footing that no interest has accrued
or shall accrue on any debt after the first appointment of a
liquidator of the trade or personal affairs of the person whose
assets are about to be or are being distributed : Provided
that nothing in this section shall affect the rights of any
secured creditor in respect of any security held by him.

(2) Any surplus assets remaining after such distribution
may be applied rateably In the payment of claims for
interest.

21. In every winding-up under this Ordinance, the assets
shall, so far as they are available for discharging unsecured
debts, be applied in discharging such debts due to creditors
who are not enemies or enemy subjects in priority to the
unsecured debts due to creditors who are enemies or enemy
subjects: Provided that nothing in this section shall be
construed as authorising any payment being made to a
creditor who is an enemy or an enemy subject.

22.-(1) Every liquidator appointed under this Ordinance
to wind up the trade or personal affairs of any person may,
by writing signed by him, with the permission of the
Governor, disclaim any lease or contract under which such
person is subject to any liability.

(2) Notwithstanding anything contained in section 36,
such disclaimer shall operate to determine, as from the date
on which the disclaimer is signed, the rights, interests and
liabilities of such person under the lease or contract dis-
claimed, but shall not, except so far as is necessary for the
said purpose, affect the rights or liabilities of any other
person.

* As amended by No. 11 of 1917 and Law Rev. Ord., 1924.





(3) Where the person whose affairs are being wound up
was the lessee of any premises, and the liquidator has with
the consent of the lessor sub-let the said premises or any
portion thereof, the lessor, upon such disclaimer, shall not
be entitled to distrain on any premises held by such sub-
tenant except for the rent formerly payable by the sub-tenant
to the liquidator in respect of these premises, and the lessor
shall not be entitled to enter on any premises so held by
such sub-tenant except for breach of some covenant contained
in the sub-lease, if any.

(4) Notice of such disclaimer shall, so far as is practicable,
be given to every party to the lease or contract disclaimed
other than the person whose affairs are being wound up :
Provided that no such disclaimer shall be void or otherwise
affected on the ground only that any notice required by this
sub-section shall not have been given.

(5) Any person injured by the operation of a disclaimer
under this section shall, to the extent of the injury, be deemed
to be a creditor of the person whose trade or personal affairs
are being wound up.

(6) Any person who alleges himself to be so injured shall,
within six weeks of his being required by the liquidator to
do so, furnish to the liquidator a statement of the extent of
such injury, verified by statutory declaration, together with
the evidence in support of such statement.

(7) Upon receiving such statement and the evidence in
support thereof, the liquidator shall proceed to admit or
reject such claim or to admit it in part, and, subject to any
order made by the court under sub-section (8), his decision
shall be final for all purposes of the winding-up.

(8) If the party alleging himself to be injured by the
operation of the disclaimer shall be dissatisfied with such
decision, it shall be lawful for him, within one month of such
decision being communicated to him, to require the liquidator
to apply to the court for directions, and the liquidator shall
thereupon apply to the court for directions, and any order
made by the court on any such application shall be final for
all purposes of the winding-up. The party alleging himself
to be injured shall be entitled to be heard upon any such
application.





(9) It shall be lawful for the court to enlarge the time
limited in sub-section (6) or sub-section (8) upon such terms
as the justice of the case may require, and any such enlarge-
ment may be ordered although the application for the same
is not made until after the expiration of the time limited.

23.-(1) It shall be lawful for any liquidator appointed
under this Ordinance to give notice to any secured creditor
of the person whose affairs such liquidator has been appointed
to wind up to realize his security within such time from the
receipt of such notice by the secured creditor as the liquidator
may by such notice or by any modification thereof appoint:
Provided that the time so appointed shall not be less than
one month, and provided that no such notice shall be given
except with the permission of the Governor.

(2) The secured creditor shall realize his security within
the time appointed, and shall furnish forthwith to the liquida-
tor an account of the proceeds of such realization.

(3) Where the proceeds of such realization exceed the
amount to which the secured creditor is entitled under the
terms of the security, the secured creditor shall forthwith
pay any surplus to the liquidator.

(4) If there is any dispute as to the amount to which the
secured creditor is entitled, or if the secured creditor falls to
comply with any of the provisions of this section, the liquida-
tor shall apply to the court for directions and any order made
by the court on such application shall be final for all purposes
of the winding-up.

(5) If the secured creditor fails to realize his security within
the time limited, the court may by order vest the property in
the liquidator and may give directions as to the sale of the
property by the liquidator and may make such order as may
be necessary for the purpose of. enabling the liquidator to
realize the property.

(6) In this section, terms of the security shall include
any rights possessed by any corporate body over the shares
in such corporate body in respect of debts due to such
corporate body.

As amended by No. 11 of 1917 and Law Rev. Ord., 1924.





24. Any order made by the court on any application by a
liquidator for directions under any of the provisions of this
Ordinance may be enforced in the same manner as any judg-
ment or order of the court in an action would be enforceable:
Provided that no order made on any such application for
directions shall be enforced without the permission of the
Governor.

25. No liquidator shall in any winding-up under this
Ordinance sell or otherwise deal with any immovable prop-
erty in such a way that it shall, either directly or indirectly
and either forthwith or after any interval of time, become
property under prohibited control.

26.-(1) No sale or lease of immovable property in any
winding-up under this Ordinance shall be completed unless
and until the purchaser shall have made a statutory declara-
tion in Form No. 3 or Form No. 4 in the Schedule.

(2) Where the sale or lease is to a corporation, such
declaration shall be inade by some officer of the corporation
duly authorised thereto by the corporation and approved for
that purpose by the liquidator.

27.-(1) Except with the, permission of the Governor, no
person by whom any immovable property sold by a liquidator
in any winding-up under this Ordinance is or shall be held,
shall sell, transfer, lease, mortgage, bequeath or otherwise
deal with any such property in such a way that it shall,
either directly or indirectly and either forthwith or after any
interval of time, become property under prohibited control.

(2) If any person contravenes the provisions of this section
such person, or in the case of a deceased person his estate,
shall forfeit to the Crown the sum of fifty thousand dollars to
be recovered at the suit of the Attorney General.

(3) The penalty provided in this section shall be without
prejudice to any other penalty, or to any forfeiture, to which
any such person or his estate may be liable.

As amended by No. 11 of 1917 and Law Rev. Ord., 1924.





28.-(1) If any immovable property sold, leased or other-
wise dealt with by a liquidator in any winding-up under this
Ordinance, or any part of such property, shall have become
or shall become property under prohibited control, the
Attorney General may apply to the Supreme Court for a
declaration that such property or such part thereof be for-
feited to the Crown, and the court shall declare such property
or such part thereof to be so forfeited, and thereupon it shall
be so forfeited accordingly.

(2) The forfeiture provided in this section shall be without
prejudice to any penalty to which any person may be liable.

29.-(1) The Governor may at any time require any
person claiming to be the owner of or to be entitled to any,
immovable property sold by a liquidator in any winding-up
under this Ordinance, or any part thereof, to furnish to him
in writing such particulars as may appear to him to be neces-
sary to enable him to ascertain whether or not such property
or such part thereof is under prohibited control, and in the
case of a corporation may require any officer of the corpora-
tion to furnish the required particulars.

(2) Every person who falls when required to furnish such
particulars as it is in his power to give or ascertain, or
furnishes particulars which are false in any material particular,
shall upon summary conviction be liable to imprisonment for
any term not exceeding one year and to a fine not exceeding
five thousand dollars.

(3) Where any particulars have been furnished in accord-
ance with this section, such particulars may be used in evidence
against the person or corporation by whom they are furnished
in any proceedings under this Ordinance, and the fact that
any person who has been required to furnish particulars
in accordance with this section refuses or neglects to
furnish such particulars as it is in his power to give or
ascertain or furnishes particulars which are false in any
material particular shall be prima facie evidence in the ease
of proceedings under this Ordinance that such property or
such part thereof is under prohibited control.

* As amended by No. 11 of 1917 and Law Rev. Ord., 1924.





30. The, following are hereby vested in the Custodian as
from and including the 30th day of March, 1917:-

(a) The goodwill of every trade formerly carried on in the
Colony by any person who is, or at any time since the 4th
day of August, 1914, has been an alien enemy, or by any such
person in partnership with any other person, except in so
far as any such goodwill may have been validly transferred
before the 5th day of August, 1914, to some person who is
not, and has not since the 4th day of August, 1914, been,
all alien enemy.
(b) All rights whatsoever in respect of any trade mark as
defined in the Trade Marks Ordinance, 1909, or in respect
of any trade description as defined in the Merchandise Marks
Ordinance, 1890, which are vested in or exerciseable by any
person who is, or at any time since the 4th day of August, 1914,
has been, an alien enemy, or which would be exerciseable by
any such person but for the existence of a state of war and
had he continued to possess such rights up to the 30th day of
March, 1917.

(c) Without prejudice to any other provision in this section
contained, the goodwill of every trade formerly carried on in
the Colony by any person whose affairs are being, or have
been, wound up by a liquidator appointed under this Ordi-
nance, and all rights whatsoever in respect of any trade
mark or trade description used in connexion with such
goodwill or trade which are vested in or exerciseable by any
such person or which would be exerciseable by any such
person but for the existence of a state of war and had he
continued to possess such rights up to the 30th day of March,
1917.

(d) The goodwill herein referred to shall not, for the
purposes of this Ordinance and of vesting the aforesaid
rights in the Custodian, be deemed to have determined by
reason of this Ordinance or of the existence or continued
existence of a state of war or of any circumstances arising
therefrom, but the said trade marks shall be deemed to have
been lawfully transmitted to the Custodian and shall remain
vested in him notwithstanding the actual determination of
the said goodwill if such goodwill has in fact determined
or does hereafter determine.

* As amended by No. 11 of 1917 and Law Rev. Ord., 1924.





(e) Notwithstanding the provisions of section 30 of the
Trade Marks Ordinance, 1909, no such trade mark shall be
liable to removal from the register for non-payment of the
fee for renewal except by order of the Governor.

(f) Any such trade mark which since the 26th day of
October, 1914, has been removed from the register for non-
payment of the fee for renewal shall be restored to the
register and shall be deemed to be a trade mark the rights
in respect of which are vested by this Ordinance in the
Custodian.

31. No act of any liquidator appointed under this Ordi-
nance to wind up the trade or personal affairs of any person
shall be deemed invalid by reason only of the fact that at
the time when the act was done such person was not an alien
enemy, or had died, or had ceased to exist.

32. No legal proceeding of any kind whatsoever, civil or
criminal, shall without the permission of the Governor be
brought against any liquidator or any public officer in respect
of any act or omission connected in any manner whatsoever
with any winding-up under this Ordinance, whether such
act or omission has occurred before the 30th day of March,
1917, or may occur after the 29th day of March, 1917.

83. The provisions of this Ordinance shall continue to be
in force until such time as the Governor may order otherwise,
either generally or in a particular case, notwithstanding that
by reason of the cessation of a state of war or for any other
cause whatsoever any person whose rights may be affected
by any of the said provisions shall have ceased to be an alien
enemy or an enemy or an enemy subject.

34. Every person who commits any offence against this
Ordinance shall be deemed to be guilty of a misdemeanor
and shall be liable upon conviction either summarily or on
indictment to imprisonment for any term not, exceeding
twelve months and to a fine not exceeding five thousand
dollars.

35. No prosecution shall be instituted under this Ordi-
nance, without the consent of the Attorney General.

As amended by No. 11 of 1917 and Law Rev. Ord., 1924.
As amended by Law Rev. Ord., 1924.





36. Nothing in this Ordinance contained shall be deemed
to affect the rights or remedies of any person against any
alien enemy, except in so far as the liabilities of such alien
enemy may have been discharged towards such person by a
liquidator appointed under this Ordinance: Provided that,
where a liquidator has been appointed to wind up the affairs
of any trade formerly carried on in the Colony by an alien
enemy or to wind up the personal affairs of any alien enemy,
no proceedings in bankruptcy shall be brought or be main-
tained against any such alien enemy so long as the appoint-
ment of such liquidator, or of any person appointed as
liquidator in succession to such liquidator, shall remain in
force.

37. Any powers given under this Ordinance shall be in
addition to and not in derogation of any other powers with
respect to alien enemies or any other powers of His Majesty.

SCHEDULE.

FORM No. 1. [s. 7(1).]

WARRANT.
The Alien Enemies (Winding up) Ordinance, 1914, s. 7.
Hongkong.
To each and all of the officers of the police force of the Colony of
Hongkong and to ............................... .........
...........................................
Oath having been made before the undersigned, a magistrate of the said
Colony, that an offence under the Alien Enemies (Winding up) Ordinance,
1914, has been committed (or that it is anticipated that an offence under the
Alien Enemies (Winding up) Ordinance, 1914, is about to be committed)
by ...............of ..............Victoria
in the said Colony namely that the said ..............................................
unlawfully did on or about the.........day of................., 1914,
...........................................
and that the said .......uses (or has used)
the premises ...............................................................................
in connexion with his (or their) business or trade
These are therefore to authorise you in His Majesty's name-
(a) to inspect all books and documents belonging to or under the control
of the said ................................................................................
(b) to require any person whom you may consider able to give any
information respecting the business or trade of the said ...........................
........... to give such information:
As amended by No. 30 of 1914 and Law Rev. Ord., 1924.
As amended by Law Rev. Ord., 1924.





(c) if accompanied by a police officer or if yourself a police officer to
search the premises .................................. :

(d) to seize and take possession of all books documents and things dis-
covered in the course of such inspection or search which may appear to
furnish any evidence that any offence under the, said Ordinance has been or
was about to he committed :

(e) to do all such acts and things as may be reasonably necessary for the
purpose of effecting such inspection search or seizure.

Dated this .....................day of 19

..................................
Magistrate.

Fown No. 2. [s. 7 (2).]

ORDER.

The Alien Enemies (Winding up) Ordinance, 1914, s. 7.

Hongkong.

To each and all of the officers of the police force of the Colony of
Hongkong and to ...........................................................................
...........................................

Whereas it has been made to appear to the undersigned that an offence
under the Alien Enemies (Winding up) Ordinance, 1914, has been
committed (or that it is anticipated that an offence under the Alien Enemies
(Winding tip) Ordinance, 1914, is about to be committed) by ...................
............................................. of.................... Victoria
in the said Colony namely that the said .............................................
unlawfully did on or about the ...day of 1914,
...........................................
and that the said .......uses (or has used)
the premises ....................................
in connexion with his (or their) business or trade:

These are therefore to authorise you in His Majesty's name-

(a) to inspect all books and documents belonging to or under the control
of the said ..............................:

(b) to require any person whom you may consider able to give any
information respecting the business or trade of the said ...........................
........................... to give such information :

(c) if accompanied by a police officer or if yourself a police officer to
search the premises ........................................:





(d) to seize and take possession of all books documents and things
discovered in the course of such inspection or search which may appear to
furnish any evidence that any offence under the said Ordinance has been or
was about to be committed :

(e) to do all such acts and things as may he reasonably necessary for the
purpose of effecting such inspection search or seizure.

Dated this........day of .............19

......................

Captain Superintendent of Police.
Deputy Superintendent of Police.
Assistant Superintendent of Police.

FORM NO. 3 [s. 26.]

DECLARATION BY AN INDIVIDUAL PURCHASER.

(Description of property.)

I ........................................of do solemnly and
sincerely declare as follows :-

I am a ........subject and reside and enrry on business
at .......................................and I am not an enemy or enemy subject
as those terms are respectively defined in the Alien Enemies (Winding up)
Ordinance, 1914.

I further solemnly and sincerely declare that there is no arrangement of
any kind whatsoever under which I am to hold the property above described,
or any part thereof, wholly or partly for or on behalf of or in trust for or for
the benefit, of or so that it shall in any way be or come under the control of
any enemy or enemy subject or corporation under enemy control as those
terms are respectively defined in the aforesaid Ordinance, either alone or
jointly wilh another or others.

And I make this solemn declaration conscientiously believing the same to
be true and by virtue of the provisions of the Statutory Declaration Act,
1835.

(Signed) A. B.

Declared at .......in Hongkong
this ........day of ..........19

Before me,

(Signed) C. D.

As amended by No. 11 of 1917 and Law Rev. Ord., 1924.





FORM NO. 4. [s. 26.]

DECLARATION ON BEHALF OF A CORPORATION.

(Description of property.)
I..................... of ..........................
the (a) ...........of (b)
hereinafter called the corporation, being duly authorised by the corpora-
tion to make this declaration do solemnly and sincerely declare as follows

The corporation is not an enemy or At corporation under enemy control as
those terms are respectively defined in the, Alien Enemies (Winding up)
Ordinance, 1914, and to the best of my knowledge and belief tbere is no
arrangement whatsoever under which the corporation is to hold the property
above described, or any part thereof, wholly or partly for or on behalf of or
in trust for or for the benefit of or so that it shall in any way come under
the control of any enemy or enemy subject or corporation under enemy
control as those terms are respectively defined in the aforesaid Ordinance,
either alone or jointly with another or others.

And I make this solemu declaration conscientiously believing the same to
be true and by virtue of the provisions of the Statutory Declarations Act,
1835.

(Signed) A. B.

Declared at ................................. this day
of ............19

Before me,

(Signed) C. D.

No. 29 of 1914, repealed by Law Revision Ordi-
nance, 1924.

No. 30 of 1914, incorporated in No. 28 of 1914.

No. 31 of 1914, incorporated in No. 1 of 1884.

No. 32 of 1914, incorporated in No. 1 of 1895.

No. 33 of 1914, repealed by No. 17 of 1923.

* As amended by No. 11 of 1917 and Law Rev. Ord., 192.
[Originally No. 28 of 1914. No. 30 of 1914 No. 11 of 1915. No. 11 of 1917. Law Rev. Ord, 1924.] Short title. Interpretation. [s. 2 contd.] Onus of proof as to alien enemy character. Alien enemy not to trade or dispose of property without permission. Winding-up of trade formerly carried on by alien enemies or on their behalf, and of their personal affairs. [s, 5 contd.] [s, 5 contd.] [s, 5 contd.] [s, 5 contd.] Cash balances, and the remuneration thereon. Prohibition against carrying on the trade of an alien enemy. Inspection, obtaining of information, and search. Schedule. Form No. 1. Schedule. Form No. 2. No alien enemy to be entitled to present a bankruptcy petition against himself. Amendments made by Ordinance No. 30 of 1914 to be deemed to have been made upon the commencement of Ordinance No. 28 of 1914. Leave necessary for legal proceedings. Action by or against liquidator to bind alien enemy and others. Court to have power to stay action against liquidator. Court to have power to stay action against alien enemy. Liquidator to be entitled to apply for directions. Power to discharge liabilities incurred outside the Colony. Goodwill and trade marks. Power to appoint a liquidator in certain special cases and to give directions for the disposal of certain property. Transfer of property. Rights and powers to pass from liquidator to liquidator. Distribution on the footing that interest does not accrue after the commencement of the winding-up. Priority over debts due to enemies. Disclaimer. [s. 22 contd.] Realization of securities held by secured creditors. Enforcement of orders made on applications for directions. Liquidators not to transfer immovable property to prohibited control. Statutory declaration before completion of sale or lease. Schedule. Forms Nos, 3, 4. Purchasers and others not to transfer immovable property to prohibited control. Forfeiture of property transferred to prohibited control. Power of Governor to require owner of property to furnish certain particulars. Goodwill and trade marks vested in Custodian, Ordinances Nos., 40 of 1909 and 4 of 1890. Ordinance No. 40 of 1909. Validity of acts of liquidators. Protection of liquidators and public officers. Provisions to continue in force. Penalty. Consent of Attorney General. Rights against alien enemies not affected. Saving of other powers. (a) here insert the office of the person making the declaration, e.g. secretary. (b) Here insert the name of the corporation.

[Originally No. 28 of 1914. No. 30 of 1914 No. 11 of 1915. No. 11 of 1917. Law Rev. Ord, 1924.] Short title. Interpretation. [s. 2 contd.] Onus of proof as to alien enemy character. Alien enemy not to trade or dispose of property without permission. Winding-up of trade formerly carried on by alien enemies or on their behalf, and of their personal affairs. [s, 5 contd.] [s, 5 contd.] [s, 5 contd.] [s, 5 contd.] Cash balances, and the remuneration thereon. Prohibition against carrying on the trade of an alien enemy. Inspection, obtaining of information, and search. Schedule. Form No. 1. Schedule. Form No. 2. No alien enemy to be entitled to present a bankruptcy petition against himself. Amendments made by Ordinance No. 30 of 1914 to be deemed to have been made upon the commencement of Ordinance No. 28 of 1914. Leave necessary for legal proceedings. Action by or against liquidator to bind alien enemy and others. Court to have power to stay action against liquidator. Court to have power to stay action against alien enemy. Liquidator to be entitled to apply for directions. Power to discharge liabilities incurred outside the Colony. Goodwill and trade marks. Power to appoint a liquidator in certain special cases and to give directions for the disposal of certain property. Transfer of property. Rights and powers to pass from liquidator to liquidator. Distribution on the footing that interest does not accrue after the commencement of the winding-up. Priority over debts due to enemies. Disclaimer. [s. 22 contd.] Realization of securities held by secured creditors. Enforcement of orders made on applications for directions. Liquidators not to transfer immovable property to prohibited control. Statutory declaration before completion of sale or lease. Schedule. Forms Nos, 3, 4. Purchasers and others not to transfer immovable property to prohibited control. Forfeiture of property transferred to prohibited control. Power of Governor to require owner of property to furnish certain particulars. Goodwill and trade marks vested in Custodian, Ordinances Nos., 40 of 1909 and 4 of 1890. Ordinance No. 40 of 1909. Validity of acts of liquidators. Protection of liquidators and public officers. Provisions to continue in force. Penalty. Consent of Attorney General. Rights against alien enemies not affected. Saving of other powers. (a) here insert the office of the person making the declaration, e.g. secretary. (b) Here insert the name of the corporation.

https://oelawhk.lib.hku.hk/items/show/1289

1923

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