W494
12th December,
IN ORIGINAL JURISDICTION,
BEFORE HIS HONOUR W. MEIGH GOODMAN (ACTING CHIJr Justion).
HỌ TỪNG BANG Ý. CHAN KỊP BÁN AND ANOTHER.
In this case the Hon. H. E. Pollock (instruct ed by Mr. Bowley), appeared for plaintiff and Mr. J. J. Francis, Q.C. (instructed by Mr. C. Ewens), for defendant. This was a trial of an isue as to the Statute of Limitations.
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THE HONGKONG WEEKLY PRESS AND
Shek died in June. 1880, there was no adminis. tration of his estate and effects taken up until November. 1886, and that that administration was undera forged will, a will which was subsequently set aside as a forgery in November, 1896, and letters of administration were not granted to the present plaintiff until June, 1897. He would submit, therefore, that there was no really valid
administration of the estate of the deceased until June, 1897. As to the point raised by Mr. Francis, that defendants were not partners in the Yan Wan and Yi Li firms at the time of Ho I Shek's death, he contendedthat they must be considered as surviving or as continning partners in the firm.
His Lordship said he would reserve judg- ment, as the question was a delicate one.
14th December
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR A. G. WISE (PUISNE JUDGE).
LAM CHAK U V. CHUI WAH AND ANOTHER, In this case plaintiff, Lam Chak J, was des- cribed in the petition as a gentleman residing ou the second floor at 36 Hollywood Road, defend- ants being Chui Wah and Shi Ping Kwang. The first defendant is described as a rent collector residing at 54, Staunton Street, and the second as clerk and interpreter to Messrs. Wilkinson and Grist, solicitors. The claim was for dam- ages-$300-for improper distraint.
Mr. Reece appeared for plaintiff and Mr. Slade (instructed by Messrs Wilkinson and Grist) for defendants.
Mr. Reece, having read the petition and an- swer, said the main issue was whether or not plaintiff was a tenant at $20 a month or $80 a month.
Mr. Francis said that the parties in the case were Ho Fang Hang, who was suing as adminis- trator of the estate and effects of Ho I bek deceased, and Chan Kit San and 8- Kuk Sam. The petition-and for the purpose of the argu- ment it was assumed that all the facts stated in the petition were correct-in the first paragraph said plaintiff was a gentleman formerly resid- ing at 55, Lower Lascar Row Victoria, but now residing at 87, Wellington Street, Victoria, and was suing as the administrator of the estate and effects of Ho I Shak deceased. Paragraph 2 said defendants resided in Victoria and were partners in the Yan Wo and the Yi Li opium firms, which carried on business at 2, Cleverly Street, Victoria, and at Macao. Ho I Shek died intestate on or about the 19th day of June, 1880, at Tung Kun in the empire of China. Paragraph 4 said no administration of the estate was taken out until November, 1886, when probate of an alleged will was granted to Ho Chik Fuk (by the name of Ho Chick Fan), the person named as executor in such alleged will, but Ho Chik Fuk did not inter- meddle in any way with the hereinafter men- tioned shares of Ho I Shek in the Yan Wo and Yi Li firms. Paragraph 5 said that on or about the 17th November, 1896, this alleged will was desleured null and void on the ground Mr. Slade—That is really the sole question. that it was a forgery, and probate was there- Mr. Reece, continuing, said defendants alleged upon revoked, and on June 21st, 1897, that plaintiff was their tenant at $30 per Chinese letters of administration of the estate and month and he became their tenant on the 22nd effects of deceased were grauted to plaintiff in day of the third moon. He denied that plaintiff the present suit. Paragraph 6 said Ho I Shek, became their tenant on that date, and for this who was one of the promoters of the Yan Wo and
reason: That might be the date of the assign- Yi Li firms was at the date of his death entitled
ment of the premises from Sau Kee to de- as a partner to two shares in the Yan Wo firm fendante, but plaintiff paid rent to Sun Kee, his and one share in the Yi Li firm, and upon the former landlord, up to the 17th day of the death of Ho I Shek these shares remained in fifth moon and got a receipt for that reat. the said two firms and " the surviving partners Defendants said they served on the 17th day of in the said firms carried on and have continued the fourth moon a month's notice to increase to oarry on up to the present day the busi-
the rent. If the premises were sold to defend. nesses of the said two firms with the capital ants, as they probably were they would be sold and assets of such firms without any final subject to existing tenancies. 'There was a ten- settlement of accounts being come to between anoy subsisting on that date-a monthly tenancy the said firms or either of them and the from the 18th day of one Chinese month to the estate of the said Ho I Shek deceased." Para- 17th day of the next Chinese month-at $20 graph 7 said plaintiff had, as admmistrator, re- for each of the two floors plaintiff then occupied, cently applied to defendants for accounts show- and one of the terms of the tenancy was that ing the amounts payable to the estate of Ho I one month's notice should be given. What he Shek in respect of the latter's shares in the said submitted was this the rent could not be valid. firms, but defendants had wrongfully refusedly raised unless the subsisting tenancy was to render any accounts in respect thereof. Mr. determined. The proper way to raise rent was Francis, continuing, submitted that on the face to give unconditional notice to quit, followed of the petition there was no allegation that defen- by an intimation that if the tenant chose dants were among the survivng partners at the to stop on at an increased rent he could time of Ho I Shek's death, and he submitted do so. This notice was not a notice to quit that unless it was distinctly alleged and proved and admitted that they were among the surviv❘ ing partners no legal liability attached to them whatever. He submitted that when in 1886 probate was granted to Ho Chik Fuk the latter was in a position to give a perfectly legal, valid receipt for any accounts which might have been paid in respect of the estate of the deceased. With respect of the letters of administration granted in June, 1897, his contention was that the claim was not merely barred because of the existence of the previous probate, but that it was barred even although no previous letters of administration had been taken out, inasmuch as Mr. Reece observed that that might be, and the death of Ho I Shek dissolved the partner- added that if plaintiff was tenant at $20 a month ship, whether the present defendants were part-there had been an illegal distraint, because the ners or not. Supposing there was a debt due to full amount had been tendered. HO I Shek, the moment his death occured the Stätate of Limitations commenced to run as against that debt.
MP Pollock submitted that the circumstances under which this claim arose were of a special character, and that it was important that his Lordship should bear in mind the peculiar cir. onmstances of the case as set out in the petition. His Lordship would see that although Ho I
at all. The notice was bad, be submitted,
three reasons. for
First of all it was not given by the proper persons, San Kee being the landlord on the date of the notice; secondly that it was not given at the proper time, because his evidence was that it was served not on the 17th day but on the 23rd day of the fourth moon, which was not a month's notice; and thirdly it was bad in form-it was not a notice to quit at all but only a notice to raise the rent- and was absolutely invalid and useless. His Lordship-If your contention is right 90 per cent, of the notices are bad.
Mr. Blade--That is so...
Mr. Reece, continuing, said if the distraint was improper and excessive plaintiff was entitled to excessive damages, and he claimed $300.
The evidence, for plaintiff having been given His Lordship informed Mr. Blade that he need not address the court, but suggested that oer- tain witnesses should be called. The case for the defence was that plaintiff, in consideration
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[December 16, 1800
of his being allowed to give up one of the two floors which he rented at 76, Hollywood Road, agreed to pay an increased rent for the other.
His Lordship held that the story of defen. dants was the true one, and gave judgment for r defendants with costs,
THE FATE OF THE "HUPEH?”
ARRIVAL OF THE SAVED IN✨
HONGKONG.
A TERRIBLE EXPERIENCE-- DEVOURED BY SHARKS.
KINDLY TREATED BY FILIPINO ISLANDERS,
9th December..
In our Wednesday's issue we announced that the previous afternoon Messrs, Butterfield and Swire had received a telegram from Manila to the effect that the Hupeh was lost together with 46 Chinese, but that all the Europeans aboard were saved and were coming to Hongkong in.. the Yuensang. The Hupeh left Passarouan, Java, on the 6th November, and should havé reached Hongkong on the 15th November. She was thus 19 days overdue before any tidings were received concerning her, and consequently the gravest fears were entertained as to her safety. Yesterday the Yuensang arrived in the harbour, with those who had been saved. These were 15 in number and consisted of eight Europeans, and seven Chinese. The Europeans were Capy tain Pennefather, three officers, three engineers, and Mr. Revoiell, agent for the Columbia Cycles, who was the only passenger. The Chinese: saved were the boatswain, three Chinese quarter. masters, the lamp trimmer, and two sailors. The, Europeans saved in addition to the Captain and Mr. Reveille were Chief Officer W. Hunter, Second Officer J. Jackson, Third Offloer A. Durant, Chief Engineer 8. Farrell, Second- Engineer W. Pugh, and Third· Engineer. A. Blake.
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on
When the Hupeh left Passarouan
the 6th November she had on board a crew of 60 and one passenger and carried as cargo 4,000 tons of sugar. On the 14th the Island of Cabra was passed. All had gone on well up to then, but on the 15th-that was Thursday—a severe gale came on from the north with a heavy sea, and at two o'clock on the Friday morning the vessel began to list to port, and things began to look. so serious that Captain Pennefather at eight o'clock in the morning ordered her head to be turned towards Manila. Though the vessel was almost straight at half-past: five in the morning she was 27 degrees to starboard by half-past six. The list kept becoming greater and greater, and with a view to improving mak.... ters Captain Pennefather ordered; some of the : cargo to be thrown overboard.
The list, however, continued to increase and by,, Saturday, the 18th November, the vessel waa,GÜɑ' degrees to starboard, and the crew began to talk of leaving the ship. All the boats had gone, witha the exception of one on the port side-which- could not be got at, so eight rafts were prepared : and all got aboard except the Captain: ando the passenger. The Captain, announced that he purposed sticking by the ship, and endoss voured to dissuade the crew, from going on te. the rafts, saying that tl sy would be mafer in
the ship. They, however, said they did not be.. lieve in dying like rate in a hole and intended. to make a fight for it. With that they pushedi off and were lost sight of before dark...
The following day-Sunday-two of the raftas returned to the ship. The first to arrive was i the one in charge of the Chinese boste swain. It reached the Hupeh at about,ning: o'clock in the morning, doming from leaward. : The boatswain reported that they, had been sorely beset by sharks, the water literally swarming with them, and that during the nighti a raft which they were towing, had gone under. and that the eight men on it, were devoured byg these monsters of the deep. At about four o'clock in the afternoon the raft with, the, officers and engineers came alongside from, winde. ward. They also said they had been much troubled by the sharks, which had actually leap out of the water and taken, tins, of, bisenita which were on the raft. Under these, cireum stances they deemed it more prudent in
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