May 4, 1903.1
the defendants having wrongfully received and appropriat d to their own use certain rents and profits of the ssid houses" so let by the dofendants as aforesaid, amounting to $96),
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In their defence the defendants staled that the compradore had absconded from the Colony, his defalcations exceeding $203,000.
Mr. H. E. Pollock, K.C, barrrister at-law (instructed by Mr. F Paget Hett of Messrs. Monnsey & Bratton, solicitors), appeared for the plaintiff, and M- T. Morgan Phillips, barrister at-law (instructed by Mr. H. J. Gedge of Messrs. Johnson, Stokes & Master; solicitors), appeared for the defendants.
no
CHINA OVERLAND TRADE REPORT.
-"So much is due.” If the default was not made good within a month then proceedings were taken nuder the mortgage deed. Why was that not done here?
the letter of the 8th September was open to this Mr. Morgan Phillips admitted that perhaps
Lordship had indicated was necessary in law. objection, but no formal notice such as his
altogether, but if one read a letter like this, was His Lordship did not think it was necessary it not almost an inference that they did not intend it as a formal notice? In most of these bonds and mortgage deeds for the securities of compradores it was stated-" Notice being given of the amount due whether ascertained or not." That was the common form. So that when the words "amount ascertained to be due some objection on the other side..
were put ia, it was clearly done to cover
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theft of 850,000 gold from the defendant's steamship Zafiro in September last.
Mr. E. H. Pharp, K.C., and Mr. M.. W. Slade, barristers-at-law (instructed by Mr. F. solicitors), appeared for the plaintifs and Mr. Paget Hett of Messrs. Mounsey and Bratton, H. E. Pollock, K.C., and Mr. T. Morgan Phillips, barristers-at-law (instructed by Mr. solicitors), appeared for the defendants J. Hastings of Messrs. Deacon & Hastings,
The following special jury was empanelled · A. Turner, G. Mayer, F. H. A Fuchs and -Me srs. J. W. Bolles, A. 8. Hooper, J. Leiris, F. D: Goddard. Foreman, Mr. Hooper.
Mr. Morgan Phillips said that as the de- defendants received on board the defende
detail, and fresh defalcations were. perhaps being found out daily, so that the amount was one which would be likely to vary from time to time. This was a technical and vexatious claim, for the next letter of Messrs. Mounsey and Brutton of 21st October offered $11,000 to satisfy the claim against them.
Mr. Polloo's K.0 in opening the case said he thought it was quite clear from the pleadings which had been put in that practically the question his Lordship would have to decide was the question of the construc- tion of a covenant in a deed of mortg gå under which the defendants purported to have, exer- falcations were known and were slated to be cised the power of letting plaintiff's premises. over $200,000 which was far in excess of the His Lordship-Practically it is the proviso? security ($11,000) given by the plaintiff, he Mr. Pollock Yes. There was only one submitted that that was a sufficient notice to question of fact about which the parties him. It was impossible to give then or at any might or might not be agreed upon in time an account which was absolutely depend. the pleadings and that was the questionable. It had to be gone into in very considerable as to when these premises were let. The plain tiff's case as appeared from the statement of claim was that these premises were let by the defendants to tenants of their own; they did not find tenants of the plaintiff in poss-ssion and give notice to them to pay rent but created a new tenancy. The defendants as a matter of fact admitted that they did let these premises. Mr. Pollock rose to object to this last point Under the mortgage deed they had as being new matter. The whole question was power to let the premises without sending in whether the letter of 8th September was a notice to the mortgagor. It was quite clear sufficient notice and as his Lordship had pointed upon the face of the pleadings that the defend-out it was lear that it could not have anta based their defence simply and solely upon been intended as a notice that the defendants the fact that a letter which was addressed by were going to exercise their powers under the Messra. Johnson Stokes & Master, acting on mortgage. His objection to this new matter behalf of the defendants, to Messrs. Mounsey was briefly upon the ground that the defendants & Brutton, who represented the plaintiff, had rested their case entirely upon the letter of of 8th September, 1992, constituted a good 8th September, 1902, co.taining a sufficient and sufficient notice as required under the notice. They had not pleaded that, if that proviso in the deed of mortgage. Plaintiff letter was not a sufficient notice, at all events held that it was an absolutely insufficient plaintiff by something he did subsquently had notice. It was obviously intended by the accepted it as a sufficient notice. Therefore proviso that the mortgagor should be fur- this subsequent letter was irrelevant to the case. nished by the mortgagees with a clear and His Lordship-I think so too. definite statement with reasonable details of Mr. Morgan Phillips-Surely the letter was the losses alleged to have been sustained by the sufficient notice i asmuch as the plaintiffs compradore's defalcations, and that that having accepted and acted upon it. been supplied the mortgagor should be given one month to make good the losses and damages complained of. That was to say, the mortgagor should know definitely what was due so that he could fairly exercise an option as to whether he would or would not pay off the mortgage bond. As strengthening the position taken up by the plaintiff he would point out that under the deed the power of letting was coupled with the power of sale. The whole object of the proviso was that the mortgagor should have reasonably full particulars of the defaults which it was alleged the compradors had been guilty of in order that the mortgagor might have a reason- able opportunity of exercising an option in the matter.mafa
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His Lordship-Not within the month., Mr. Morgan Phillips-No. His Lordship-I am not inclined to let that letter in under the present pleadings.
Mr. Morgan Phillips said in that casa ho would ask leave to amend the statement of defence by pleading in the alternative that te plaintiff recognised the notice as a sufficient uotice and made an offer in the terms of the proviso.
His Lordship-Of course that is altering the whole affair.
Mr. Pollock did not wish to stard in the way of his friend raising any points, but it seemed to him that this letter of 21st October was so to speak too late for the month.
His Lordship-But before they acted. Mr. Pollock added that he did not wish to put defence and therefore would not object to the amendment.
Mr. Morgan Philips submitted that the letter of 8th September following upon a letter of the 8th of the previous month was a suffiany unreasonable obstacles in the way of the oient notice and complied with the proviso contained in the mortgage deed, and that moreover the plaintiff had acted upon it and recognised it as a valid and sufficient notice.
Mr. Pollock-That is not in the pleadings. His Lordship It is rather a serious point in the case.
Mr. Pollock-It is point which ought to have been pleaded, egter
Mr. Morgan Phillips-Surely if they have acted upon it, it is a sufficient notice. I would ask for an amendment, but I do not think it is necessary,
The statement was accordingly amended to the effect that alternatively the letter of 8th September was treated as a valid and sufficient notice within the meaning of the mortgage deed.
After hearing further debate,
His Lordship gave judgment for the plantiff for $960 with costs, remarking that he was satisfied that the letter of the 8th September was not a sufficient notice and that it had never been intended as a formal notice, gen
The Court adjourned.
His Lordship I am inclined to let it in, but I read the pleadings the other way. I may tell you that on the two letters as they stand it is a not a sufficient notice, I think.A SAR
Thursday, 30th April.
IN ORIGINAL JURISDICTION. Mr. Morgan Phillips said it was plain from the letter of the 8th August of Messrs. Mounsey BEFORE HIS HONOUR SIR HENRY and Bratton and other lette s brought that the BERKELEY (AOTING CHIEF JUST CE). default of the compradore Toy Yen was well-
a to the plaintif ya da de His Lordship remarked that he did not under- stand how this case should come before him. When notice was given in this way it was said
THE “ZAFIRO" MYSTERY.
S.
sued the China and Manila Steamship Company The case was called in which the Man Loong for damages in connection with the alleged
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that the plaintiffs were traders carrying on The plaintiff in his statement of claim stafed business at 24, Chinese Street. Defetidants were shipowners of 14, Des Vœux Road. On 12th September, 1902, plaintiffs shipped and ants' vessel Zafiro in Hongkong a certain United States of America to be carried to Manila case containing $50,000 in the currency of the and there delivered to one Tam Shui Tia under Tomes & Co. Defendants had not carried and a bill of lading signed by Messrs. Sherau, delivered as aforesaid the said case or the said $50,00). By the defendants' breach of contract the plaintiffs had suffered loss and claimed the amount alleged to have been lost.
In their defence the defendants denied that in the statement of claim. Defendants admit- the plaintiffs had suffered damage as laid down
carriage to Manila on their steamship Zafiro ted receiving from the plaintiffs a case for
to be delivered there to one Tam Shui fin
of the same. Defendants denied that the said and craved leave to refer to the bill of lading"
thereof in United States currency as alleged by case contained the sum of $50,000 or any part the plaintiffs but said that the representation said that the plaintiffs fraudulently made the to made by the plaintiffs was false, Defendants aforesaid representation as to the contents of the said case with intent to defraud and cheat the defendante. Defendants admitt d that the case
Stui Tin at Manila in consequence of the same having been abstracted from the custody of the defendants on or before the arrival of the Zafiro at Manila,*****
was not delivered to Tam
were extremely simple. With regard to law, ths Mr. Sharp, K.C., in opening said the fact
only point to be considered at present was the question of the burden of proof. He thought his Lordship would be with him in saying that the substantial burden of proof was on the defence. As to the history of the Man Loong firm, the plaintiffs were ship chandlers and compradores. They had been established as such for a very long time. The firm was started about 1855 by Ah Tee, father of the present owner. For many years the Man Loong were practical y the sole suppliers of the American Navy in Hongkong. They supplied a good deal of the coal and all the stores to the U.8. ships and the officers and seomen's messes. This indicated the magnitude of business. In addition to his supply of the the plaintiffs':
ships the firm must have had a very considerable exchange bus ness with the crews of the ships. Their dealings altogether under the heading the late Spatish War when, he thought, the supplies were large and especially during
American Navy for some time drow practically the whole of its supplies from Hongkong. “That was the time when the plantiff firm was making most money in Hongkong in this department of the business. This continued until abon July, 1901.
- His Lordship—I suppose this is relevant ? /** part of the defence was that the plain
Mr. Bharp said it was extremely so, bedaue
were not the kind of people to have so much money. He had to sh ap.obabilit
dence had been called from Manila to show it was improbable that the firm would be? so much mony at a time. He had to establish the position that the firm was at least in a position to do that. In July, 1901, the Ameri
the ships got their supplies can Navy began to supply its own Navy, and Manila, but during the three years prior
hat date the naval business of the plaintiff firm amount somewhere about $150,000 gold.
Hongkong?
His Lordship These are the transão
Mr. Sharp-Solely and in connection with the