January 30, 1904.]
1893, and took from the three boys a full release which they all signed. If they had acted rightly and properly, as it now appeared, they would have been perfectly content with what had been done for them and would have thanked their executor for the administration of the estate which had been put in his charge. Instead of that they issued a writ on 12th April, 1900, seven years after they had given this release, when they were at least 5 years of age, There they charged the executor with all sorts of frand, stealing the estate from them, and having practically swindled them right and left. They asked in the first place to have the release set aside because they were under 21 years of age when it was made, because it was obtained by fraud. The rel ase was set aside naturally by the Court on the allegations that had been made, and as it was proved that they were under age when it was made it was held invalid and the executor was ordered to pay the costs so far as they had been incurred in the setting aside of the release, His Lordship was bound to say that
if he had known as much about the case then as he did now, he would not have made the execu-
had been
nble
CHINA OVERLAND TRADE REPORT.
Tuesday, 26th January.
IN SUMMARY JURISDICTION,
BEFORE HIS Honour A. G. Wiss (PUIŠNE JUDGE),
OGDENS LIMITED IN LIQUIDATION,
Mr. J. Scott Harston, of Messrs. Ewens and Hariton, solicitors, appeared in support of an appeal by the British American Tobacco Com- pany, Limited, as assignees of Limited's trade mark in Hongkong from Ogdens adjudication of stamp duty. Mr. F. B. L Bowley, Crown Solicitor, appeared for the respondeit, Hon. L. A. M Johnston, the Acting Collector of Stamp Revenue.
It appars that on 19th Juse of last year, 1903, Ogens Limited, now in liquidation, transferr their trade mark so far as Hong- kong was concerned to the British-American Tobacco Lompany for the sum of £100. The Acting Colector of Stamp Revenue adjudicated tha the stmp-duty on the assignment was $10 under the order in Council of June 3, 1903, the consideration being nominal, appaled against this adjudication, and asserted Appellants thaithe dity should be only $6, the considera- tio being not nominal,
tor pay the costs at all. But at that time all that was before him were these fraudulent charges to the effect that the execptor had taken out a full release from the three boys under age, which was not a wise proceeding on his part. Having set aside the release and so made the wh le accounts open, both parties agreed to have accounts taken b. Mr. Bruce Shepherd, a very experienced man, as special referee. Naturally, of course, this had caused the executor a great deal of trouble and worry. After a year's work Mr. Bruce Shepherd to give his certificate as to the state of these accounts. Accord- `ing to bis account the execut r had paid over all that he ever ought to have paid over, if not more. The plaintiffs own solicitor, after he had heard the evidence taken before dr. Bruce Shepherd, admitted that there was no founda- tion at all for the allegations of fraud, which would not have been made if he had known as much as he knew after the accounts had been gone into. Now the case came ou for further consideration, and he was asked to give a decision upon the certificate of the special referee appointed at the request of both parties. If plaintiffs had had counsel representing them the only point he could object to in that certificate of the special- referee was that the speci-l referee had passed over or allowed a sum which the executor had taken as remuneration-bis share of rø- muneration for carrying on the business for 17 years. If counsel had taken that objection-ven if his Lordship had allowed it on argument-the only result would have been that his Lordship would have said that technically the executor ought to have applied to the Court for remuneration, and be would allow that to be amended; he would adjourn the case and allow the executor to make an application now for such remunera- tion for his work as the Court thought fit to
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grant. But he learned from the special referee himself that he thought that somewhere about $50 a month wou'd have been a fair amount, so that if he sent it back to the referee for altera-
Ldship said there was something grody negligent on somebody's part--he did not think it was Mr. Bowley's in he
way entries such as this were put a the Gazette. He would be very glap to low who was at fault. Colltor had adjudged $10 on something that The Stamp was iblished in the Gazette at page 317 of 1903 Well, he found first of all that it was head Order made by the Governor in Council undehe provisions of Ordinance No. 18 of 189 It did not give any section. This was a thing had repeatedly complained about, that you li to look through a whole Ordinance to find it what section a
case was brought under Looking at Section 6 of the Stamp Ordince, 1901, you found that there were sevenb-sections under which he could make rules nd regulations. It was perfectly imposle for him to say under which one he had me the order, though there was a thing at the for the general working of this Ordine. That was not right, because sup- posinge validity of these rules and regulations came ore the Court they would not know under at section to go The Court wanted people give them the section and sub-section when put it in the Gazette. To take the first th, Rule 19 of the Trade Mark Rules was arded, and in the Gazette of 1898 in the index found the heading "Trade Marks." He mudmit, however, he had since discovered it was ur the heading "Orders in Conncil." But théid not give the number of the page. He woulike to have before him the person who wasponsible for this. It had taken a whole ning to find out what they were proceedi upon. His Lordship then asked Mr. Han how he had arrived at $6 instead of $5.
tion the referee would have put in as much remuneration and his Lordship would have allowed it. But that would be an useless expense on a mere technicality. It was his opinion that & Judge should always try as much as possible to do substantial justice between man and man, leaving to technicali- ties their due place, and remembering that technical rules were only made to further the general administration of justice. On the whole, therefore, he had come to the conclusion that subject to anything Pow Ting had to say he would allow the certificate and there would be decree for judgment in favour of the defendant and costs, these including the whole costs of the aotion except those that had already been paid by the executor under the previous order of the Court for setting aside the release. There KS no stain on the executor's character at all. Except that instead of asking the Court he helped himself to a reasonable amount which the Court would have allowed, there was no flaw in his defence.
Pow Ting had nothing to say. His Lordship entered judgment for the defendant and costs.
The Court adjourned.
& summons
Mr. Eton said that was due to difference in excha. This was part of assignees that the assignment be on the adjudgede correctly stamped ad valorem, the dut ug $6 on a consideration of £100, such coi`ation not being a nominal consi- deration
His Luip-Your argument is that it is not a qual but a substantial consideration?
Mr. ton-Yes. ·
His hip-I may say I am with you as at preselvised, subject of course to anything the Crosolicitor has to say, and therefore I should The Crown Solicitor's view as to this considey being nominal or not nominal,
Mr. by remarked that the only question in this was whether the consideration of £100 wminal or not nominal. If it was nominal the Order in Council applied and the dut $10 was correct. If it was not nominali the ordinary rules applied and the assi at must be stamped ad valorem. The sent had been made by the liquidate Ogdens, Limited. Ogdens was in liquid
His Lip said the liquidator has assigned the trairk for £100 sterling. Was this a noming substantial consideration ?
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Mr. Bowley replied that in the view of the Treasurer who had had to adjudicate upon this matter, it was a nominal consideration "for the transfer of the Company's trade-mark.
Bis Lordship-What is your opinion ?
Mr. Bowley said it was not a question of what his opinion was, but of what the opinion of the Court was. He understood that the Treasurer, in adjudicating, know, although it did not appear on the face of the deed of assignment, that this was a very valuable trade- mark. You could hardly move a step in Eng- mark. land, at any rate, without seeing Ogden's trade- Therefore the Treasurer came to the ed as a uominal consideration. conclusion that this sum must have been insert-
His Lordship said this assignment was only kong. If it appeared that Ogden; had be»n for the transfer of Ogden's trade-mark in Hong- sold all over the world for £100 he should say that price was nominal. He was of opinion that this was a substantial consideration for
Ogdens trade-mark in Hongkong considering that Ogdens was in liquidation.
which the Treasurer had to exercise his discre- Mr. Bowley stated that this was a matter in tion, and he came to the conclusion that £100 was a nominal consideration.
His Lordship said he thought the appeal must succeed. The Collector appeared to have taken the view that this referred to Ogdens all over the world instead of Hongkong alone. He thought that £100 - roughly speaking, some- thing over 81000-was a substantial considera- tion for Ogdens' trade-mark in Hongkong tion. alone, considering that Ogdens was in liquida
He therefore allowed the appeal and made au order that $6 be the amount of stamp duty.
DISPOSAL OF
FURNITURE.
Captain G. Gotsche for $211. Mr. H. K. Lieut. G. Spicer Simson. H.M. Navy, sued Holmes, solicitor, appear d for the plaintiff, aud Mr. J. Hastings, solicitor, for the defendant.
! It appeared going home he agreed to sell his furni
that when the plaintiff was
ture to the defendant for $350. Among the goods were some pieces that defendant did not want, aud in & letter which he Plaintiff's contention was that defendant had wrote to plaintiff he specified these articles, agreed to buy the whole of the furniture at the price mentioned. In the result defendant did not take the furniture. It was put up to auc- tion and realised $139, Plaintiff claimed the difference between this sum and the price origi- nally fixed upon-$211.
dant and costs.
His Lordship gave judgment for the defen-
The Court adjourned.
Wednesday, 27th January.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR A. G. WISE (PUISNÉ JUDGE.)
CLAIM BY A. ROSS AND CO. There was again called the
саве in which Messrs. A. Ross & Co., 4, Des Voeux Road Street, for $708.11, being loss on resale of wire Central, sued the Ching Hop firm, Wing Lok rigging of which the defendants refused de- livery. Mr. E. A. Bonner, of Messrs. Dennys and Rowley, solicitors, appeared for the plaintiffs, and Mr. J. Hastings, solicitor, for the defendants.
The claim was for damages in respect of a breach of contract for the sale of some wire rigging. The contract was dated 18th December, 1902, and was for 50 tons of old wire rigging, of as good quality as possible, the goods to of fair quality, not too much worn or rusted, and arrive by January or February shipments. De- fendants refused the goods on the ground that they had not been delivered within contract time, When the case was last before the Court on the 14th inst. an adjournment was made to allow of the attendance of Mr. Thomson to give evidence regarding the contract on behalf of the plaintiffs.
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Mr. Bonner said he had had a letter from Mr. Thomson stating that he was unable to attend through an affection of his eyesight.
His Lordship remarked that he thought plaintiffs would have to pay the costs of that hearing.
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