228
SUPREME COURT.
Friday, 11th March.
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IN ORIGINA JURI-DICTION.
BEFORE HIS HONOR SIR WILILAH M. GOODMAN (Chief Justice),
- WATKINS LD. v. L. D. HILLS.
THE HONGKONG WEEKLY PRESS AND
appeared for the plaintiff, and Mr. H. E. Pollock, } K.C. barrister-at-law (instructed by Mr. H. Hurs thouse, of Messrs. Deunys and Bowley solicitors), for the defendant.
This was an ac ion in which Watkins Ld., chemists, druggists, wine merchants, etc. carrying on business at 3', Queen's' Road Central, sought an injunction to restrain Livingston D. Hills, lately employed by them as an assistant, from acting as assistant in the trade or business of a chemist, druggist, aerated water manufacturer, wine and spirit me chant, or perfumier in Hongkong. Mr. M. W. Slade barrister-at-law (instructed by Mr. F. X. d'Almada e Castro, solicitor), appeared for the plaintiff. Defendant was unrepresented.
or 28 an
Mr. Slade read the statement of claim, which was to the effect that defendant was a chemist, and was formerly an assistant in the employ of the plaintiff company and was now an assistant at The Pharmacy, 12, Queen's Foad Central. By an agreement dated 20th December, 1901, mude between the plaintiff company and the defendant' -for the consideration therein mentioned the defendant agreed to serve the plaintiff company as a general assistant in Hongkong or at any Treaty port of China or in the Philippine Islands, for a term of five years commencing from the day of his landing in Hongkong. By clause 3 of that agreement defendant bound bimself not to, at any time during the contin- uance of the said term or at any time thereafter,
ei her eng age
directly or indirectly, +ither CB bis OWD account assistant to any person or persons or company or companies in the trade or business of a chemist, druggist, dentist, aerated water manufacturer, wine and spirit merchant, or perfumier in Hongkong or at any Treaty port in China or in the Philippine Islands except for the benefit or with the written consent of the plaintiff company. Defendant arrived in this Colony in or about February, 1902, and continued to act in the capacity of general assistant to the plaintiff company until 20th October, 1903, when the plaintiff company dismissed him from their service for misconduct and neg. lect of duty. Since his dismissal defendant in breach of his agreement and with- out the consent of the plaintiff company had entered into the service of the firm carrying on business at 12, Queen's Road Central, as druggists and chemists, wine and spirit merchants and perfumiers, under the style of The Pharmacy." Plaintiffs claimed they had been injured in their business by reason of the act of the defendant, and would continue to be injured unless the defendant was restrained from continuing to commit breaches of his agreement; they accordingly sought an injuuc. tion as described above.
His Lordship said there were a great many cases of this kind in the Encyclopaedia of Law. These restrictions of trade must be reasonable. He supposed defendant's passage had been paid
out ?
Mr. Slade-Yes.
His Lordship--I think it is a reasonable thing that he should not be employed here; I think it is an unreasonable thing that he should not be employed in any Treaty port.
Mr Slade We are not asking for that, my Lord,
[ March 21, 1904 owners of Sections B and D, having acquired the same by purchase, under an indenture of assignment dated 12th September 1900, from one Lo Ah Sam, who was the executrix of one From the affidavits of the plaintiff it appeared Kwok Kwai, executrix of Yiu Chow. By virtue that defendant had borrowed 88,000 from him, of this assignment, which included a conveyance to be repaid in two yearly instalments of $4,000 to the plaintiffs of all the estate, right, title and with interest at ten per cent, Certain rickshas interest of Lo Ah Sam as executrix in the belonging 10 the defendant ware to be pieces of ground or extension seawards known held as security by the plaintiff, and, under or registered in the Land Office as the reclams- an agreement ma le between the two parties, plaintiff was to receive a one-half of the profits entitled to that portion of the reclamation to tion of Marine Lot 53A, the plaintiffs became of the ricksha business carried on by defendant. the lot which was coloured red in the plan $4,000 interest had been paid, but no share of annexed to the articles of agreement. In the the profits of the business. Defendant said that alternative plaintiffs said that, altogether apart he signed ao agreement transferring a half from the articles of agreement, the plaintiffs, as share of the business to plaintiff. He signed a owners of Sectious Band D of the lot were entitled, blank papar, which was to be filled in by plain- upon the true con truction of the Ordinance, tiff, but he did not agree to give him a one-half to such proportion (from front to back) or the share of the profits. He offered plaintiff the whole of the reclamation to Marine Lot 5oA as half share in the business for $12.500. This the frontage of Sections B and D of this lot plaintiff denied, and produce 1 the agreement. upon the old Praya roadway (now known as His Lordship appointed an interim rec-iver Des Voeux Road) bore to the whole frontage of uutil a final order should be made, this receiver the lot; that was to say, the plaintiffs were › to keep and file accounts monthly in the entitled to the area of land coloured red on the Registry. If the partners could agree upon a
aforesaid plan, Chu Chuen died on 25th receiver promptly, such receiver to be appoin-January, 1893, and probate of his will was on ted; in default the Registrar was to nominate a receiver; a security of $7,500 to be found by the executors. The portion of the works in the area 7th January, 1899, granted to defendants as receiver within one week of his appointment. of reclamation described as Section 6 had been
completed and the whole of the
sum of $12,759.54, being the cost of the reclamation in respect of Sections B and D, had been paid to the Government, namely $11,164.60, by Chu Chuen or by defendants as his executors, and $1,594.94 by plaintiffs. Plaintiffs were ready and willing to pay defendants the sum of $11,164.60 with interest of 8 per cent, per annum from the respective dates on which the respectiva instalments were paid to the Government upon admitted by the defendants to be entitled to the plaintiffs being adjudged by the Court or the portion of the reclamation coloured red on the plan. Plaintiffs therefore claimed that a declaration be made by the Court that plaintiffs were entitled to the area of lan marked red in the articles of agreement; that was to say, to such proportion (from front to back) of the whole of the reel mition to Marina Lot 53A as the frontage of plaintiffs' property, Sections A and D of the lot, upon the old Praya roadway (now known as Des Voeux Road] bore to the whole frontage of Marine Lot 53A upon the said roadway.
Mr. G. A. Watkins, of Watkins, Ld. having given evidence,
His Lordship granted the injunction, res- tricted to Hongkong, with costs.
Saturday, 12th Marc.
IN ORIGINAL Jurisdiction.
BEFORE HIS HONOUR SIB WILLIAM M. GOODMAN (CHIEF JUSTICE.)
HO TUNG #. HO LUI SHAN.
Ho Tung applied for a receiving order to be made against Ho Lui Shan alias Nan Wing Chee, Mr. M. W. Slade, barrister-at-law (instructed by Mr. J. Hastings, solicitor),
Monday, 14th March.
IN CR GINAL JURISDICTION.
BEFORE His HoYOUR SIR WILLIAM
GOODMAN (CHIEF JUSTICE).
CLAISTA CROWN LEASE.
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Chan Ut Ch ́u and Pun Kon Shan brought an action against Chu Lee and Chu Ping in respect of the right to the ownership of a Crown lease on the old Praya. Hon. H. E. Pollock. K.C., barrister-at-law, and Mr. E. H. Sharp. K.C., barrister-at-iaw (instructed by Mr. R. Harding, of Messrs. Ewens and Harston, solici tors), appeared for the plaintiffs, and Mr. M. W. Slade, barrister-at-law (instructed by Mr. H. J. Gedge, of Messrs. Johnson, Stokes and Master, solicitors), appeared for the defeudants. In their statement of claim the plaintiffs stated that Chan Ut Chin was compradore to Messrs. S. J. David & Co and carried on busi ness at 17 and 19, Lyndhurst Terrace; Pun Ron Shan was a merchant, carrying on business at 67 and 69, Queen's Road Central. Defeud. ants were merchants carrying on business at 315 and 313. Des Voeux Road, and were sued as executors of one Chu Chuen deceased. By articles of agreement dated 5th October, 1889, between the Government and Chu Chuen, after reciting that Cha Chuen was Crown lessee of Marine Lot 53A, and that he had agreed to contribute the sum of $12,759.54 for the cost of the reclamation in respect of Sections B and D of the lot, it was agreed between the parties that upon completion of the portion of the works in the area of reclamation described as Section 6 on the plan deposited in the Land Office pursuant to Section 7 of the Praya Reclamation Ordinance, 1889, and upon payment of the whole of this sum, the Governor would grant a Crown lease of all such portion of the reclamation provided for by the Ordinance as was delineated on the plan and coloured red for a term of 999 years The part coloured red showed the reclamation appertaining to Sections Band D of Marine Lot 53A was an area of land which measu ed 5,853 square feet and extended right through the reclamation from front to back and hadja frontage on the new Praya of 41 feet 6 ip. The articles of agree- ment although they were nominally entered into by Chu Chuon in his own name and on his own behalf were in fact entered into on behalf of the owners of ections B and D of the lot, and were so entered into in pursuance of the custom of the Hongkong Government in the case of reclamations which were made under the Ordinance of entering into such articles of agreement for reclamation with the Crown lessees of any lut in respect of which any reclamation had to be made. At the date of the articles one Yiu Chow was owner of Sections B and D of the lot, but Yiu Chow died on 21st May, 1893, and plaintiffs were now the
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Defendants denied that the articles of agree- meut referred to were entered into on botulf of the owners of Sections B and D of Marine Lot 53A or that there was any custom of the Hongkong Government in the case of reclama- tious made under the Reclamation Ordinance, 1889, of entering into such articles of agree- ment with the Crown lessees of any lot in front of which reclamation had to be made for and on behalf of the sections or at all. Defendants, did not admit that Yin Chow was at any time the owner of sections B and D or that plaintiffs were now the owners. They also denied that Lo Ah Sam, executrix of Yin Chow, had at any time any estate, right, title or interest in the pieces of ground or exten. sion seawards known and Land Office as
egistered in the the reclamation to Marine Lot 53A, or that the plaintiff, by any in- denture of assignment became entitled to any portion of the reclamation. They deni:d also that if plaintiffs were owners of sections B and D, which defendants did not admit, the plaintiffs were entitled upon the true construction of the Ordinance to any part of the reclamation to Marine Lot 53A. The owner at the date of the Ordinance of Sections B and D did not signify his acceptance of the portion of the land assigned to him on the plan in Sub-s otion 11 of Section 7 of the Ordinance mentioned, which portion of land was the area of land coloured red upon the plan annexed to the articles of agreement, or signify his intention of entering into an agreement with the Governor with respect thereof in the manner or within the time provided in Sub-sections 11 and 111 of Section 7 of the Ordinance. Defendants were in pos- session of the said portion of land. Defendants stated that they had paid the whole sum of $12,759.54 and denied that plaintiffs had paid any part thereof.
Counsel addressed the Court and late in the afternoon sa adjourment was made.
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