December 8, 1900.]
It was left in that way. He contended that in that case the proceedings were absolutely un- necessary; they came to nothing.
His Lordship said-There is not enough be- fore me to induce me to depart from my finding, but I will express this opinion:-Supposing the issues of fact had been tried before the issues of law had been tried and determined, and you had proved to me that your allegations were well founded, I should not have awarded the costs to the defendants. But on the issue of law as now decided, I must give the defendant his costs. I think the best course will be to submit the matter to the Governor.
Mr. Francis-If your Lordship thinks the Governor or the Attorney General will admit anything to be true, I am afraid it will be a very great mistake. After the extremely liberal promises that were made in Court by the Attorney General, it is utterly hopeless to expect anything in the shape of justice.
His Lordship-If these allegations are in any substantial degree well founded, the Governor might properly forego the costs.
Mr. Francis-Your Lordship will see these allegations are well founded.
His Lordship-I am speaking of the allega- tions as to the mode of conducting the inquiry.
The Court was then adjourned.
Tuesday, 4th December.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR John CarriNG- TON, C.M.G. (CHILF JUSTICE).
CHAN HUNG TONG V. POON hung, sued FOR AND ON BEHALF OF HIMSELF AND ALL OTHERS THE PARTNERS IN THE YU TSEUNG
SHING FIRM.
This is a claim for $,1970.40, money lent and interest thereon.
Mr. J. J. Francis, QC. (instructed by Messrs. Wilkinson and Grist) appeared for the plaintiffs, and Mr. H. E. Pollock, Q.C. (instructed by Messrs. Deacon and Hastings), for the de- fendants.
|
Mr. Francis said that this was a claim for money lent and interest on money lent. He would ask his Lordship for permission in the first instance to amend the claim from $1,970.40❘ to $1,848.40.
Mr. Pollock objected, no notice having been given to him on the point, and Mr. Francis with- drew his application.
Mr. Francis, continuing, read the pleadings in the case.
In his petition the plaintiff said he was a trader residing and carrying on busi- ness at 62, Praya Central. The defendant, Poon Hung, was a trador residing and carrying on business in co-partnership with another or others to the plaintiff unknown under the style or firm name of the Yu Tseung Shing, at No. 83, Queen's Road Central. The plaintiff on or about the 21st March, 1897, lent to the defen- dant so trading the sum of $500 at interest at the rate 80 cents per 100 per month, and on or about the 27th March, 1897, a further sum of $500 at a like rate of interest, and on or about the 2nd April, 1897, a further sum of $500 at a like rate of interest; the whole of the said demand with moneys to be repayable on
interest at the rate aforesaid. The plain- tiff had repeatedly demanded from the defen- dant so trading as aforesaid the repayment of such sums of money with the interest due there- oa, but the defendant had always refused and still refused to repay to the plaintiff the said sums of money or any of them or any part thereof or of the interest due thereon, and the defendant was justly and truly indebted to the plaintiff in the sum of $1,970.40. The plaintiff therefore prayed that he might have judgment against Poon Hung and others the partners in the said Yu Tseung Shing firm, for the said sum of $1,970 with interest thereon at 8 per cent per annum from the date of writ to the date of judgment In his answer the defendant, Poon Hung, said he was a trader and resided and carried on business alone and not in co-partnership with another or others under the style or firm name of the Yu Tseung Shing, 83, Queen's Road Central. The plain tiff had not lent to the defendant, whether trading as the Yu Tseung Shing or otherwise, any sum of money whatever at any time whatever either at interest or otherwise.
CHINA OVERLAND TRADE REPORT.
459
The defendant denied that the plaintiff | went to Singapore to look for employment. He repeatedly demanded from him the payment told him he was going to Singapore in February of the sums in question, and said that the 1898. The books of the Yu Tseung Shing were plaintiff asked the defendant personally for kept by Chan Yu Tong when he was managing
In further answer the business—he had heard so. repayment once only.
His father died the defendant said that he refused to pay about ten years ago. Poon Hung and Chan Ho to the plaintiff the sums of money referred were left in the business. Since his father's death' to in the petition or any of them or any part he went to see Poon Hong and suggested that thereof or any interest thereon, and that he was a new agreement should be made in the Yu not indebted to the plaintiff in the sum of Tseung Shing's business. Poon. Hung said, $1,970 or any other sum. Continuing, Mr. "We are well acquainted with each other and Francis said the loans made by the plaintiff to we are honest men, and there is no need to the defendant's shop or place of business was in enter into a fresh agreement," and no fresh the ordinary course of Chinese custom. He agreement was entered into. He had never did not believe there was a single shop or store entered into partnership with the defendant, doing business in Hongkong which did not Poon Hung. He had simply received his share habitually take money on deposit or loan for of the profits as before. He first heard of the the ordinary purpose of its business. This shop borrowing of this $1,500 from the plaintiff some habitually did take money from different cus-time about the 23rd year-1897. He could not tomers or from anybody who had money to put remember who told him, but he thought out on deposit at interest, the money being it the plaintiff. Somebody else also repayable on demand. The person who was told him about it, but he could not re- manager of the business at the time the money member who. Neither of these people told was lent was Chan U Long, who was then him that this money was handed over to and still was a partner in the firm. The evi- Chan Yu Tong. He only heard that the Yu dence he had to put before his Lordship was Tseung was in need of money to buy goods, and He had simply the evidence of the plaintiff, who would that the plaintiff had lent it some. say under what circumstances he lent the never heard it said until now that this $1,500 money, and who would produce the receipts was paid into Chan Yu Tong's hands. The for the money which he received from the plaintiff had never told him into whose hands man who acted as manager and accountant, and he had paid the money. He had said he paid the evidence of a brother of that accountant,it into the shop. The plaintiff knew that Chan who was himself also equally interested in the Yu Tong was his brother. The plaintiff had firm.
known him and his brother since they were boys. The Chief Justice asked Mr. Pollock if he had seen any of the balance-sheets produced before the hearing of the case.
The plaintiff, on being called, said he was the proprietor of the Meng Li Chang Boarding House at No. 130, Des Voeux Road, the old Praya. The old No. was 62, Praya Central. He was also sole master of the Man Sing stationery shop, at No. 132, Queen's Road Cen- tral. He knew the Yu Tseung ching firm He had known it upwards of ten years. It carried on business in Queen's Road Central. It carried on business in toa. He had dealings with the firm in 1897. He bought a small quantity of tes now and then. He had also money dealings with the firm. had lent money to the shop. He lent $1,000. This Altogether he lent the shop $1,500. $1,500 was money of his own. The $1,000 was the money of his friend. The $1,000 had been repaid. He lent the $1,500 at three different times-$500 each time. He saw the accountant of the Yu Tseung Shing-Chan U Tong-und the money was handed to him.
Ho
The brother of the man who was the manager and accountant in the defendant firm when the money in question was lent also gave evidence. He was interested in the defendant firm and produced statements of accounts supplied to him showing that the defendant firm owed the plaintiff $1,500.
The hearing was adjourned.
Wednesday, 5th December.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR JOHN CARRING-
TON, C.M.G. (CHIEF JUSTICE).
CHAN HUNG TONG V. POON HUNG, SUED FOR
AND ON BEHALF
OF
HIMSELF
AND ALL
OTHERS THE PARTNERS IN THE YU TSEUNG
SHING FIRM.
This is a claim or $1,970.40, money lent and interest thereon.
Mr. J. J. Francis, Q.C. (instructed by Messrs. Wilkinson and Grist) appeared for the plaintiffs. and Mr. H. E. Pollock, Q.C. (instructed by Messrs. Deacon and Hastings), for the defen-
dants.
Chan Lau Kai, continuing his evidence, said he knew the Po Cheung firm. It ceased to exist about ten years ago. It was a branch of the Yu Tseung Shing and had promises at Honam, Canton. It was shut up because it did not pay. In the year 1896 the entire loss of the Po Cheung was allowed for the accounts, and it was after this that the division of capital took place. The Po Cheung carried on business
in tea.
In reply to Mr. Pollock, the witness said he did not know what Chan Yu Tong was doing at Singapore. He had never heard that he in- tended to come back to Hongkong. He had never heard that he owed money in Hongkong. After Chan Yu Tong left the Yu Tseung Shing he
was
Mr. Pollock said he had seen those for 1896 and 1897.
The Chief Justice-Because unless you can overthrow them they are very strong evidence. Mr. Pollock said that some of the items were incorrect. It would be quite sufficient for him to point out to the Court that as regarded some of the material items in the accounts they were not correct.
The Chief Justice-But you don't set up the position that it is a fabricated affair ?
Mr. Pollock-Yes, as regards certain items, which I contend have undoubtedly been fabricat- ed for the purposes of this suit.
Evidence having been given by the Court translator as to the translations of certain documents, Mr. Francis said that this was the case for the plaintiffs.
110
Mr. Pollock submitted in the first place on behalf of the defendant that there was case for them to answer at all, because he would submit that there was no evidence before the court that Chan Yu Tong was a partner in the Yu Tseung Shing firm or that he was
a partner in the firm in 1897, when this money was alleged to have been borrowed. Taking alone the statements made by the plaintiff and his witness as correct, what was the legal position of Chan Yu Tong and his four brothers? He submitted that they would not be considered as partners by the rule of English law, and that therefore Chan Yu Tong would have no authority to borrow money on behalf of the firm even if he did so. and, therefore, his borrowing of money would not bind the firm, even although he might pro- fess to be borrowing the money on behalf of the firm. Of course his Lordship understood that he did not admit that the plaintiff's ovi- dence was correct or that any money was bor- rowed. He was merely assuming for the moment that the evidence of the plaintiff and his witness was correct for the purpose of the legal argument which he was now presenting to the Court, and his point was that from the evidence of the plaintiff and his witness it was clear that in point of law Chan Yu Tong was not a partner and never had been a partner in the Yu Tseung Shing firm. submitted that all that had happened in the present case with regard to Chan Yu Tong and his brothers was that they had been simply receiving a portion of the profits as representa tives of their father. There was ne agreement whatever as to partnership. “In the absence of some agreement by a person simply receiving a share of profit that the business should be car- ried on in his behalf so as to make him liable for contracts entered into with outsiders, he would submit that a partnership was not con- With regard stituted between the parties.
L
Но
^