July 21, 1897.]
has not shown any reason why the Court should exercise its discretion in granting an extension of time. Therefore we think the application must be refused.
The Paisne Judge-I concur, although with considerable reluctance.
Mr. Francis asked for costs of the motion. The Chief Justice-Yes, we think costs must follow the motion. Strictly speaking, the motion for granting leave to appeal does not come before us,
Mr. Francis asked for all costs arising out of
that motion.
Mr. Slade contended there should be only one bill of costs.
The Chief Justice-We think, on the whole, the most convenient course will be to grant costs on the whole of these proceedings so far as the motion as originally made is concerned, As a matter of form it will be better to order the dismissal of the motion for leave to appeal with costs.
The Court then adjourned.
19th July.
CRIMINAL SESSIONS.
1
CHINA OVERLAND TRADE REPORT.
On leaving the junk the pirates carried away with them the younger brother of the master.
The Attorney-General called the master of the junk and other witnesses to prove the identification of the prisoner.
The jury found the prisoner guilty and the judge sentenced him to six years' hard labour.
A GRAVE CHARGE.
Kaiser Singh was charged with attempting to commit an unnatural offence.
The following jury were empanelled: Messrs. E. J. Moses, J. Motabboy, F. M. da Luz, P. P. Soares, J. F. Foyun, H. Á. W. Slade, and A. A. dos Remedios.
After bearing the evidence the jury found the prisoner guilty and he was sentenced to five years' hard labour.
15th July.
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. WISE (PUISNE JUDGE.)
JOHNSON, STOKES, AND MASTER V. GROSS- MAN AND CO.
Plaintiffs, who are solicitors in the colony, sued the defendants, who are merchants, for
BEFORE SIR JOHN CARRINGTON (CHIEF $338.50, being fees for work done and money
JUSTICE).
CHARGE OF RAPE.
Mr. Robinson-I wish to make an application on behalf of Mr. Francis, who is appearing for the Attorney-General elsewhere and who is engaged in the case against Ross. In regard to that case I ask that a special jury be sum- moned, if the Attorney-General does not object. The Attorney-General does not wish the case to come on to-day and I would ask your Lordship to fix a day for the hearing.
The Attorney-General-I can take it now if you like, but for the convenience of Mr. Francis I am willing to let it stand over
His Lordship fixed Monday, the 26th inst, for the hearing of the case.
Mr. Robinson-Will your lordship order a special jury to be empanelled Pi
His Lordship-Yes.
1
THE ARSON CASE.
Mr. Robinson Can the Attorney-General say if the arson case that is on the calendar will be taken to-day?"
So.
The Attorney-General-I do not think To-morrow we сад fix it for this day week, subject to any application in the meantime. Mr. Francis appears for the de- fendant and I do not wish to hurry the case when he is not here.
PIRACY.
Wong Yam was charged on three counts with robbery with violence on the 2nd June. The Attorney-General (instructed by Mr. H. L. Dennys, Crown Solicitor), prosocuted,
The following jury was empanelled to try the case-L. Martel, H. U. Jefferies, B. MI, Vieira, D. Goh, C. A. Brockelmann, J. C. L. Rouch, and A. Kuhn,
The Attorney-General briefly stated the facts of the case to the jury. On the night of the assault a large junk was anchored about half-a-mile outside Stonecutters' Island and inside the harbour limits. She was anchored there for the night, having been working in the vicinity during the day. On board the junk were the master and his wife and about twenty others, including the crew. At about nine o'clock the master went to sleep at the stern of the junk and his wife retired for the night to the cabin. He was awakened about midnight by a noise and on getting up saw two men- it would be proved that the prisoner was one--
rushing towards him from the fore part of the
junk. The master ran to his cabin and barred the door, but the two men followed, and with revolvers in hand, demanded admittance. Once inside they ransacked, the cabin, and in addi- tion to taking every moveable thing of value they tore the ear-rings and jewellery from the master's wife. By this time the crew had heard the disturbance, but in order that no Harm should be raised the two men drove them all into one cabin, shut the door, and placed a quantity of gun powder outside, telling hem that if they dared to open the door the owder would be fired and the place blown up,
expended as solicitors for the defendants, for which sum signed detailed bills were delivered to the defendants in March, 1897.
Mr. Deunys appeared for the plaintiffs and Mr. Reece for the defendants.
Mr. Dennys said the writ was issued on the 16th June last and on the 1st July he received notice from Mr. Reece stating that the sum of $240 had been paid into court by the defendants in full satisfaction of the claim. On the 14th July, Mr. Reece sent a notice in the following terms:-"Take notice that on the hearing of this suit defendants will, amongst other defences, enter into the special defence of set off, the plaintiffs being indebted to the de fendants in the sum of $84 for liquidated damages in respect of the plaintiff's negligence in not acting on the instructions to obtain from Mr. Ferdinand Bornemann the full amount of costs as between solicitor and client." Mr. Dennys said this put him in a curious position. His clients were most anxious not to take ad- vantage of any technical objection to this defence, but the plaintiffs were, by this special defence, charged with negligence. Therefore, as the defendants were suing for $84 for liquidated damages-whatever that might mean
and were charging the plaintiffs with negli gence, the defendants had to prove that negli- gence to the satisfaction of the Court and therefore they should open the case.
Mr. Reece replied that he was not suing for negligence. The suit was brought in respect
of three bills of costs, and his friend would not
dispute that two of the bills had been disposed of, the amount at which they had been taxed having been paid to plaintiffs' solicitors.
Mr. Dennys admitted that $84 was practically the amount he was suing for.
Mr. Reece said two of the bills had been-
disposed of.
Mr. Dennys replied that they were not disposed of. Money bad been paid into court, but that was a different thing altogether.
Mr. Reece-They are disposed of in this way, that no question is before your Lordship as to either of these two bills. The only question is whether the defendants are ....e to pay to the plaintiffs $84, the balance of the third bill. The two bills having been taxed at $240, that sum has been paid into Court.
His Lordship-It appears to me that the point is of course I bave only heard of this special defence of yours that you are going to
charge-
Mr. Reece-I do not make any charge what- over. As a matter of defence I have raised that point.
His Lordship-You say " liquidated damages in respect to the negligence." What I want to ask is, is that brought properly before me in the way of set off? Ought it not to be a cross action ?
Mr. Reece-Has your Lordship the bill for $184? That bill is in respect of a dispute between Messrs. Grossman & Co. and Borne- mann as to certain trade marks. It was alleged that Bornemann had infringed certain trade
The
marks of Grossmann & Co., and the bill is in connection with work done in that dispute. It appears from the bill that the dispute was com- promised and it was compromised on certain terms. One of the terms was that Mr. Borne- mann should pay $100 costs. It was not exactly that, but the terms were that Mr. Borne- mann should pay the costs of Messrs. Gross- mann and Co. not exceeding $100. bill amounted to $184 and Mr. Bornemann paid $100, and the sole question is whether the defendants are or are not liable to pay $84, the balance of that account. Plaintiffs, I submit, have to prove that this bill was delivered and that the work was done, and it is for them to prove their claim. With respect to the notice of special defence of course that is only one of the defences which the defendants will raise. The defend. ants may put their defence in several ways and one way is that plaintiffs, having been in- structed to obtain the full amount of costs from Mr. Bornemann, only obtained $100 and that, assuming the defendants are liable for $84, the defendants have a set off because the plaintiffs did, not obey the instructions of Messrs. Gross- mann and Co. in obtaining the full amount of costs from Mr. Bornemann,
raised as a set-off?
His Lordship-Ought that defence to be
Mr. Reece-If your Lordship thinks it better I will bring a cross suit.
His Lordship-lt raises a very vital prin- ciple,
Mr. Reece--I say that the transactions and the conduct of the plaintiffs amounted to this, that there was an agreement, either ex- pressed or implied, that if they got the full costs from Mr. Bornemann, not exceeding $100, they would not charge-
His Lordship-it appears to me that I must have a separate action and pleadings.
Mr. Reece-I do not see that that is necessary. His Lordship I do. It is a very serious charge indeed. I am not going to take it as a set off. If you say there was a distinct agreement and that there was anything in the nature of negligence I must have it all before me.
Mr. Reece That is only one way of putting the defence. It is not culpable negligence.
Mr. Dennys-Then it is nothing. It must be gross negligence or nothing.
His Lordship-I think, Mr. Reece, you will admit that a claim for damages for negligence against a firm of solicitors is a very serious matter.
Mr. Reece Yes, if it stood by itself, but it is put forward as a matter of defence. I do not consider it is a serious matter at all.
Mr. Dennys-I consider it is a most serious matter.
reading this special defence, that there is His Lordship-My opinion is, simply on
against a firm of solicitors, whether rightly a charge of a very serious nature made
or wrongly I do not know, but I do not think it is a proper thing to be decided on a set off. You have other defences?
Mr. Reece-Yes.
His Lordship Would you like to withdraw that special defence? If you want to keep it on the file I think there ought to be a cross action. Mr. Reece-I am instructed to withdraw that defence.
allow you to go into the question of negligence. His Lordship-If you withdraw it I cannot
Mr. Reece-As to what instructions were given I am entitled to go into that evidence: proceed by cross action. I will give you time to His Lordship-Then keep it on the file and
bring it.
Mr. Reece I withdraw that special defence, but it is quite open to me to prove what the in- structions of my client were.
His Lordship-If you are going to have any negligenes in the matter it is a charge that will have to be fought out in a separate action, and I cannot allow you to go on with this action.
Mr. Reece-Then I will withdraw the notice of special defence altogether.
Mr. Dennys then explained the facts of the case and said the only question now was whether or not the defendants were indebted to the plaintiffs on three signed bills of costs that were delivered to them on the 10th March, 1897. Two of the bills had been taxed and plaintiffs now sought to recover $84 in addition to the $240