Page
March 6, 1895.1
UPREME COJICT.
28th February.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR Ma. E. J. ACKROYD,
and
CHINA OVERLAND TRADE REPORT.
One steamer, as per specification of details to the said contract attached, for the sum of dollars eighteen thousand three hundred
173
..$18,300.00
2.--One small steamer, as per specifica- tion of details aforesaid for the sum of dollars four thousand two hundred. 4,200.00 3-One small steamer, as per specifica. tion of details aforesaid, for the sum of dollars four thousand
4,000.00
His Lordship--If I give costs there will be and Pang Fak Ming, a merebant, for the non- two sets of costs, because there was a separate performance of a contract dfied the 20th day of solicitor,
January, 1894, made bater o Messrs. Oh o Wo Mr. Francis Thon addressed his lord-hip, and [& Co, of the one part auf ihn said plaintiff of called attention to the fact that so far there was the other poet, whoeshy the fald choo Wọ & Cộ. no evidenes of the position of the parties ex-¦ngrid to build and delivo la ongkong har- cept one affidavit. Until his Lordship gave judg- bour three steamer, viż :- ACTING CHIEF JUSTICE.
ment a few days ago they had no interest what. I. ever in the matter in dispute. and the gree- The Hongkong and Shanghai Bankingment referred to in the affidavit stated that cer- Corporation, the Chartered Bank tain things were to be done and certain interests of India, Australia, and China, the assigned in ease the defendants succeeded in the Chartered Mercantile Bank of suit. India, London, and China, the New in the suit, and only a contingent interest upon The added parties had no primary interest Oriental Bank Corporation, Lithe determination of the case in a certain way mited, and the Comptoir National and upon their making certain payments. d'Escompte de Paris, Plaintiffs, There was no evidence before the Court that they had made those payments, or that they in- tended to pay unless they liked. In the second place he submitted that supposing they had any Agreed for the said three steamers twenty-six interest they were fully and competely repre- thousand five hundred dollars Hongkong Beuted by the two trustees-Creasy Ewens and rency. The said D. Prouehandy was to Ng Chow Fong. Neither of the added parties delivery of the three (3) steamers wh was in the least degree affected by any charge of pleted and after satisfactory trial, with i fraud and had no legal interest in the matter. saries mentioned in these specifications; t They had no right or claim to be added as de- of the first steamer must be 10 knots an fondants unless they bore their own costs and two launches not less than 8 knots, their actions were long auterior to the commencements to be in the following manner:- ment of the suit. Nothing that the plaintiffs First $ 7,575.00 on signing the agre could have dou, if the case had been decided in.. Second $ 5,575.00 two months and a h their favour, could have in the least affected the
siguing agreemen added parties, and he submitted that they had Third $13,350,00 on delivery of the st no right whatever to appear, as there had been nothing said from beginning to end which they had auy interest in defending. He did not say. of course, that his Lordship had done what was not right in allowing them to come in.
John Murray Forbes, Ng Woon Sun Howqua, Creasy Ewens, and Ng Chow Fong. Defendants. Mr. J. J. Francis, Q.C., and Mr. E. Robinson, instructed by Mr. A. B. Johnson (of Messrs. Johnson, Stokes and Master), appeared for the plaintiffs, and Mr. A. J. Leach, Q.C., and Mr. E. H. Sharp, instructed by Mr. H. L. Dennys and Mr. Creasy Ewens, represented Ng Woon Sun Howqua, Creasy Ewens. Ng Chan Foug, Ho Tung, Ng Lai Shan, Ng Chow Wan, g Heung Lun, and Ng Pak Wan.
added ' at some
The question of costs in regard to the defendants in this case was discussed length.
29
Mr. Leach said that on the 17th August au
application was made to his Lord hip in chambers under section 8, sub-section 4 of the Code of Civil Procedure to add certain parties to the suit because they were interested in it and he asked for the costs of those parties. then directed bis Lordship's attention to the law on the matter, and his Lordship said that the only question how was whether these particular persons were necessary parties. Mr. Leach sub- mitted that they were necessary parties, and not only necessary but it was reasonable that they should be added in order to look after their own interests. If Mr. Francis considered that Mur- ray Forbes, Creasy Lwens, and Ng Chow Fong sufficiently represented the parties, why did he make Howqua a beneficiaire and party to the suit? It seemed to him (Mr. Leach) that there was a principle involved, and his Lordship having decided in chambers that it was fit and proper to make these persons parties the only question now was whether it was necessary, or whether there was such reasonableness in making them parties that they ought to have their costs in the event of the action ending in favour of the defendants.
His Lordship-Why should I Larden the other side with double costs ?
Mr. Leach-They were necessary parties to protect their interests. The suit containing charges of fraud it was necessary for us to appear and protect our interests in case of appeal. The ordinary rule ought to prevail and we ought to have costs of our attendance.
His Lordship-They were not represented by different counsel,
Mr. Leach-No; so far as the i sne involved was concerned you might say that, our interest was joint; but so far as the appeal is concerned we might have been compelled to oppose it. We have no third party procedure and unless we had been made parties at that stage of the proceed- ings we should not have had a locus standi to come in afterwards.
His Lordship That is all very well. The only question in my mind is-Is it right that the losing party should pay all sets of costs be- cause owing to the procedure in the case the defendants choose to part with their interests ?
+
Mr. Leach-That might be a question, having regard to the fact that one set of counsel re- presented all the defendants, whether there should be any modification of costs.
His Lordship-It is not now a question for the Registrar It is a question whether you should get any costs at all. The Registrar would say what costs are reasonable. The parties being all represented all the necessary parties and Howqua choosing to part with his interests, the other parties are joined, he still going on with the case, and is it right that the losing party should be saddled with two sets of costs ?
Mr. Leach-I submit so in such a case as this; not necessarily two sets of costs, but costs. The question of what amount of costs would be left to the Registrar.
|
|
His Lordship-I had not much to do with it. If I remember rightly it was a matter of consent, Mr. Francis-I do not see that we had any right in preventing them coming if they thought fit
$26,500.00
$26,500.00
d
10
8, 4.
on
Len
Any
The said three steamers to be complet ready for sea within five (5) calendar from the 15th January to 15th June Twenty-five dollars (25) for each day's de over the time said after 15th June, 1894 all trials must be completed or accepted. alteration or deviation from the terms of the specification required by D. Prouchandy's repre- Mr. Francis concluled by asking his Lordship sentative or arrestation of the work by force to allow his clients costs of the original applica-major to nullify this clause, but the matter must tion in chambers, and not to allow any costs of be given by writing. The due. performance of proceedings since that day.
the said agreement by the defendants Chee Wo His Lordship-I am of opinion that, under all & Co. was guaranteed at the foot thereof by the circumstances of this case, the added defend the defendants the said Kong Tak Hing Wo ants were not necessary. I had no objection in Kee, firm, Chin Wai Hing, and Pang Fuk chambers on the affidavit put in to allow them to Ming, The said respective specifications re- appear and watch the case, but I was not ontitled ferred to in the said agreement are thereto an- to give them costs until I was quite sure that it nexed, and provide (inter alia) that as regards was necessary for them to appear. The sub- the first or larger steamer the draft thereof sequent evidence and the coudnet of the case should be six feet with 1,700 piculs and bunker show to me that it was not necessary They coal on board, and that her speed on trial were fully and ably reprosented by the trustees, should be 10 knots an hour, and that as regards the defendants who were already in the case; the second and third or small steamers that they and in fact their interests or their names were should be built and completed concurrently with never mentioned except on the first day when Mr. the first or larger steamer, so that they could Leach said whom he appeared for and until this proceed in company to their destination. The question of costs arose. I am quito snee that if said suit has been withdrawn as regards the they had not taken any steps their interests were said Pang Fuk Ming. The plaintiff alleges in safe hands and well safe-guarded, and under that at the time of entering into the said con- these circumstances I do not think it would be tract the defendants Chee Wo & Co. had right or just for the plaintiffs to bear double been informed by the plaintiff and well set of costs.
kuer that the said steamers Were in- Mr. Francis-The costs of the application intended for use upon a shallow river, and that chambers you will allow to us ?
His Lordship-Yes, the costs of the applica- tion in chambers.
Costs of the summons to be allowed to plaintiffs, costs of added defendants in the suit refused, aud costs of present application to the plaintiffs.
1st March.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR MR. E. J. ACKROYD, ACTING CHIEF JUSTICE.
Darmanaden Prouehandy, Plantiff,
and
Cheo Wo & Co., Chán Chee, Pang Ling, The Kwong Tak Hing Wo Kee Firm, Chan Wai Hing, and Paug Fuk Ming, Defendants. The plaintiff was represented by Mr. A. J. Lench, Q.C. and Mr. E. S. Sharp, instructed by Mr. J. Hastings (of Mr. V. 1. Deacon's office); the defendants were represented by Mr. J. J. Francis, QC instructed by air. F. B. L. Bowley (of Mr. H. L. Dennys's office),
His Lordship in giving judgment in the above case said- This is a suit entered by Darmanaden Prouchandy, a merchant of Saigon, against Chee Wo & Co., of Wing Lok Street, merchant, Chan Chee and Pang Ling, partners of that firm, The Kwong Tak Hing Wo Kee firm, ship builders, Chan Wai Hing, a partner in that firm,
the specified draft should not be exceeded. That the said steamers were not constructed and de- livered on the 15th day of June aforesaid, and were never constructed and completed in accord- ance with the said agreement. That at the trial trips the big launch did not attain 10 knots an hour, and one of the smaller steamers did not attain 8 knots an hour. That the large launch with 1,700 piculs aboard drew more than 6 feet, and is useless for the purpose for which it was intended. That all the steamers are of inferior workmanship and badly constructed, and they have annexed to their potifțion the particulars of the said defeets. And they claim-1st. That the defendants or gome or one of them may be ordered to pay to the plaintiff the sum of $20,742.71, together with Interest thereon, or on so much thereof as to the Court may seem fit, from the date of the writ of summons herein until payment at the rate of 7 per cent, pec aunnm. 2nd. That all necessary accounts and enquiries may be taken and made. 3rd. That the defe.dants may be ordered to pay to the plaintiff all costs of suit. And that the plaintiff may Lave such further or other relief in the premises as to the Court may seem meet. The defendants, after denying that there is any partnership of firm in existence of the name Chee Wo & Co. and other matters referred to in the first clause, admit the contract. They deny the statement that they were informed of the character of the river on which the boats were to be used