September 2, 1896.]
SUPREME COURT.
26th August.
IN SUMMARY JUBISDICTION.
CHINA OVERLAND TRADE REPORT.
bringing another action for the recovery of the money. The present plaintiff was certainly not entitled to give a valid receipt and the action could therefore not go on. There was nothing to prevent the real owner of the money taking proceedings to recover the amount.
Mr. Francis said it was quite clear on the
BEFORE ME. T. SERCOMBE SMITH (ACTING evidence as it stood that the money belonged,
PUISNE JUDGE).
TAK SIN TONG V. CHEUNG KAM TIN AND ANOTHER.
Plaintiff, a boy employed at the Hongkong Club, claimed from the defendants the sum of 8550, money lent, and $74.25 interest thereon at the rate of 13 per cent. per month.
Mr. J. J. Francis, Q.C. (instructed by Mr. Holmes) represented the plaintiff, and Mr. Master appeared for the defendants.
Mr. Francis said that the first defendant was
compradore to Messrs. Meyer & Co., and the second defendant was his wife. The action was really against the husband. The husband and wife were living apart. His Lordship would find that the plaintiff was the same per son who was plaintiff in a suit towards the end of last year for the recovery of $200. That suit was very fully argued by counsel himself on the one side and by Mr. Robinson for the defendant, and a full judgment was given in the suit on all points that could pos- sibly be raised in an action of that de- scription, and the fact of the suit having been argued out and the judgment given would facilitate his Lordship very considerably in the present case. Counsel proposed to put in the judgment, as it was decisive on certain points which would otherwise arise in this case, The first point was as to the fact that the two defendants were married folks and were living apart through the husband's fault; secondly, as to defendant's means; thirdly, as to the suffi- ciency of the allowance given to the wife. The question in this case was not whether the trans- action, was a bona fide one, but whether the money lent was wholly or in part for necessary purposes in connection with the wife's own maintenance.
The wife of the first defendant was then called. She said she borrowed $550 from the plaintiff at the rate of 14 per cent. per month interest. After getting the money she paid 8330 principal and 830 interest to another party from whom she had borrowed. The remaining $22 was for her own maintenance and family expenses. During the last twelve months her husband had allowed her only 840 a month, and during that time her health had been bad and she had spent $130 to $140 for doctors and medicines." She separated from her husband in 1892. During the past two years she had spent from $800 to $1,000 for interest on borrowed money, lawyers' expenses, &c. That money was over and above what she had got back from her husband.
In answer to Mr. Master witness said her monthly expenses were at the most $180 and at the least $150. During the past six months she had spent about $800 or 8900. That was the least she could live on; she lived according to her husband's means. She did not know what his total income was, but he received rentals of his house property amounting to $750 or $760 a month, $2,700 to $2,800 from paddy fields, and about $400 a year from ancestral property.
Tak Sin Tong, the plaintiff, said his real name was Chin Chau Kwong. He had been employed as boy at the Hongkong Club for the past twenty months. The money which he lent to the second defendant was left by his father and sent by his mother. His mother was the administratrix, the money belonging to her and three sons in proportion.
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In answer to Mr. Master witness said he had written instructions from his mother to bring these proceedings. He did not know whether he could find the letter in the Hongkong Club. Mr. Master took the objection that the wit ness could not be said to be the plaintiff; therefore he must be non-suited. The money belonged to the mother and sons, and according to the Code a plaintiff was bound to bring an setion in his own name and not otherwise and either himself or by his attorney, procurator, or agent authorised in writing. The plaintiff's real name was Chin Chau Kwong, and conse quently there was nothing to prevent the mother
not to the mother specially, but to the family, and the writ was issued in the name of the family, Tak Sin Tong, and so far as the name family were practically partners and he sub- was concerned the writ was correct. The mitted they were entitled to sue in the name of Tak Sin Tong. He also submitted that every individual member of that family was, according to Chinese custom, entitled to use the name for the purpose of family business. The plaintiff was just as distinctly the agent of the mother and family as a manager of a hong in Hongkong was the agent of the hong and was entitled to take proceedings to recover property lent by him. At no previous time had such a thing been required as the filing of the name of procurator, or agent, or anything of that sort, and the section referred to by Mr. Master (section 7 of Ordinance 13 of 1873) did not apply to the present case at all, but was simply to prevent persons coming into the Court in the character of solicitors or agents while they had an interest in the business them- selves. Although such an application as this must have been possible and reasonable in one half of the suits brought into Court, it had not been the practice to demand anything of the sort asked for by defendants' solicitor. Counsel therefore asked his Lordship to dismiss the objection.
[C
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Mr. Master, in reply, pointed out that in the writ of summons Tak Sin Tong was given as the plaintiff, and throughout the writ the word plaintiff" and not "plaintiffs " appeared. The pleading was that Tak Sin Tong was an individual, and now it transpired that he was composed of several persons. If a hong had taken the proceedings the word “plaintiffs' would have been written, whereas in this case the singular was used throughout. Moreover, there was nothing to show how the mother and sons were interested, and it had not even been shown that the plaintiff had any interest in the money at present. This was not a genuine case of partners suing, and he submitted that the plaintiff should be non-suited.
His Lordship reserved his decision on the point and further evidence was taken, the plaintiff, in cross-examination, stating that his wages were $8 a month. He had no other income.
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After the usual interval for luncheon his Lordship said--During the adjournment I con- sidered the point raised by Mr. Master.. Ac cording to section 7 of Ordinance 13 of 1873 any person taking proceedings as plaintiff must do so in his own name and not otherwise, and either by himself or by his attorey, pro- curator, or agent," &c. The plaintiff in this case is stated to be Tak Sin Tong. Now is that the name of the plaintiff? It appears to me that it is the name of a family consisting of several persons-the mother and three sons. The only exception to this rule about proceedings in Court being taken by a person in his own name occurs where the plaintiffs are partners and is provided for by Ordinance 5 of 1893. Any two or more persons claiming or being liable as co-partners and carrying on business within the jurisdiction may sue or be sued in the names of the respective firms." If we turn to section 14 of Ordinance 13 of 1873, which refers to proceedings by or against partnership firms, we shall find that before Ordinance 5 of 1893 was passed proceedings by or on behalf of or against a partnership, solely or jointly, had to be taken in the several names of the partners as individuals and not in the name of the firm or otherwise. It appears, therefore, that, the only exception wbich allows a person not to proceed in his own name is in the case of partners. The question arises, is Tak Sin Tong a partnership within the meaning of Ordinance 5 of 18937 Does the relationship existing between them constitute them partners. Do they carry on business in common with the object of making & proat? I must hold that it is not, so far as appears in the case before me, a partnership, and I feel bound to uphold the objection of Mr. Master,
&
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Mr. Francis-Then your Lordship non-snits . the plaintiff?
His Lordship-Yes.
Mr. Master With costs, my Lord? His Lordship--Yes.
31st Angust.
IN SUMMARY JURISDICTION.
BEFORE MR. T. SERCOMBE SMITH (ACTING PUISNE JUDGE) AND A COMMON JURY.
CHEUNG NANG KAI AND LU A. SEE v.
CHEUNG FAT.
}
The plaintiffs sought to recover $1,000 dam- ages for a libel allleged to have been published by the defendant.
Mr. Master appeared for the plaintiffs and Mr. J. J. Francis, Q.C. (instructed by Mr. Mounsey), represented the defendant.
The jurymen were Messrs. W. B. Walker,.. S. J. Moses, and C, S. Gubbay,
.i
Mr. Master fully explained the facts of the case. The plaintiff, Cheung Nang Kai, is a fish dryer and a dealer in salt fish, and is the registered owner of a licensed junk lying near Aberdeen. The plaintiff, Lu A See, is his wife and resided with him on board the junk. The defendant is a fish dryer and a dealer in salt fish and also the owner of a licensed junk. Defendant inserted in the Chinese Mail and also in leaflets distributed in the village of Aberdeen words which conveyed to those by whom they were read that Cheung Kwong Loong, the son of the defendant, had married A Soo, the daughter of the plaintiffs,
A Soo had on
her in 1894, and that marriage entered her husband's family and re- mained there since, and that she had attained the age of 20 years during the present Chinese year. That the said A Soo had become disre spectful and unfilial to her husband's parents and disregarded her husband, and that her manner and bearing were improper (immodest), and that she was becoming more proud and saucy daily. That all such was owing to the plaintiffs hav ing allowed her to have her own disorderly way from her youth and failed to teach her any household regulations. Further, that on the 19th and 20th May, this year, A Soo left the defendants' household and had had gone whither the defendant knew not, taking with her all her dowry and furniture, and that the plaintiffs had connived at and. allowed the removal of the things and had in no way endeavoured to prevent such removal. That such conduct on the part of A Soo was due to the plaintiffs having given their support. and encouraged her. The following word are part of those complained of "The said woman [A Soo] is 20 years old this year. She being proud of her delicate and handsome manner and tender age, becomes disrespectful and unfilial. This is owing to Cheung Nang Kai and his wife (her parents) having allowed her to have her own (disorderly) way from her tender age and failed to teach her any household regula- tions. They always let their daughter, the said A Soo, make a great noise in the house and disobey the orders of her husband's parents. She disregards her husband. Moreover, her manner and bearing are improper. She always gives trouble and often creates misunder- standings. The more I reprove her the more she shows her anger. She is becoming more In proud and more saucy day after day.' consequence of the publication of these words the plaintiffs were injured in their credit and reputation. The defendant ad- mitted the publication in the Chinese Mail, but denied that the words were published falsely and maliciously. He also denied that
word * improper the
meant "immoral" The statements were true in substance and in fact and the plaintiffs had not been injured or impeded in tlie conduct of their business by reason of such publication. The defendant also added that he published the words on a privileged occasion and for the protestion of himself and of his son and of his family from all claims and demands that might be broug against them by reason of the abandonmen A Soo of her husband and of her home, and fo the purpose of giving notice to all whom might concern that he would not be for any debts incurred by or gredit iven to
"
res
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