264
THE HONGKONG WEEKLY PRESS AND
that, if the plaintiffs are willing to refund with interest at 8 per cent. the $2,000 paid by Chu Chuen to Mr. M. J. Stephens and the money contributed by Chu Chuen and the defendants towards the cost of making the Praya, I ought to decree that the Crown Lease of the whole disputed portion of the Reclamation ought to be granted (on payment of any further contribution that may become due as final settlement of the Praya Reclama. tion accounts) to the plaintiffs or, if granted to the defendants, that the land must be held by them in trust for the plaintiffs. As regards costs. I think the plaintiffs' pre- decessor was to blame for not showing more diligence in asserting his rights during his life time, and allowing himself to be overborne by Chu Cheun's vigorous assertion of his claims. I also consider the defendants' predecessor to! have been wrong in his construction of the Ordinance. I therefore decide that each side should bear its own costs.
Monday, 28th March.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR WILLIAM M. GOODMAN (CHIEF JUSTICE.}
A. BISMARK & CO. CASE.
he sum claimed instead of informing the Tres ury of the mistake, and got a receipt. But I cannot see how that affects the question; for when the mistake was discovered a refund of the money was offered and the defendants have also paid the amount to the Treasury, so that whichever party is entitled to get the money back, will doubtless be permitted to do so. On 10th January, 1903, the plaintiff's solicitors wrote to the defendants asking them to assent to the Crown Lease of the disputed portion of the reclamation being granted to them on repay ment of the contributions, i.e. the cost of making the reclamation, with interest at 8 per cent. The defendants' solicitors declined to assent, but said their clients were prepared to assign an equitable proportion to the owner of Sections B and D. After further correspondence, the defendants' solicitors wrote to the solicitors for the plaintiffs, on February 5th, 1903. saying:-" According to our minds there can be no possible doubt as to the construction of the Praya Ordinance and that the Crown Lessee of Marine Lot. 53 A. is the only person recognised by the Governor in his agreement with such Crown Lessee, to
carry out the Reclamation, and that he is a trustee in respect of the lots of land or sections thereof for himself and for the owners of the other sections of the Marine Lot. Do you agree that this is so? It seems to us that the only decres either of us could get under the Praya Reclama- tion Ordinance would be that each of our clients is entitled to an equitable proportion of the lot which we have already offered you. There is no object, therefore in stating a special case. The only matter that, requires settlement is to aN- certain what is the equitable proportion." &o, &c. To this letter the plaintiffs' solicitor replied, on 6th February, 1903, that they claimed for their clients the whole" and continue as follows:-"We think that there is no possible doubt as to the construction of the Praya Re- clamation Ordinance and we are advised that the effect of the Ordinance is to give to owners of sections fronting the old Prays, of Marine Lots, the entire Reclamations in front of such sections. You, however, are contending that the owners of back sections of Marine Lots are entitled to share in such reclamations.“ They then suggest stating a special case for decision. Later on, it appears, that what the defendants considered the equitable proportion and were prepared to assign, was a block of 837 square feet out of the 5,853 in dispute.in Port Arthur and Dalny and pay plaintiffs The parties could not agree. and after further correspondence between the defendants' $25,000. In pursuance of this agreement and solicitors and the Colonial Secretary, the
in part payment of the sum of $25.000, defendant defendants were permitted, at their request, to
gave to the plaintiffs two promissory notes enter into a possessory agreement for the
dated 31st May, 1903, for $2,000 each. payable reclamation on condition that they gave a fresh
one month after date and entered into sole undertaking to the same effect as Chu Chuen's possession of the business and property at previous undertaking, "namely, either to assign Dalny and Port Arthur. Defendant had not an equitable proportion of the Reclamation or
paid to the plaintiffs the amount secured by to pay an equivalent in money to the owners of
these promissory notes, and they claimed $4,000 Sections B and D and also to indemnify the accordingly. Government against all claims which may hereafter be made respecting the Reclama- tion." Now, I hold, that Chu Chuen's claim was founded upon a misconception of the true con- struction of the Prays Reclamation Ordinance. It is clear that he pressed that claim strongly
on the Government when there had been no decision of the Courts upon the point to guide the Government, and was only allowed to sign the agreement on condition that he gave an undertaking certainly intended to have the effect of preventing the just claims of others being ignored and not intended to decide the respective merits either of his claim or that of the frontagers, and, indeed, in his letter of 4th March, 1903, to the plaintiffs' solicitors, the Colonial Secretary expressly said "I am direct- ed to inform you that the Governor has no power under the Reclamation Ordinance 1889 to settle disputes of title. Such disputes must be settled by the parties themselves." It is of course the province of the Court and not that of the Governor to decide the true construction of the Ordinance. The first question to decide then is, to what portion of the disputed reclamation Yin Chow was entitled as frontager. My answer is "the whole." That being so, has Yiu Chow or have the plaintiffs as his representatives so conducted themselves in the matter as to make it unfair and inequitable that the defendants should be held trustees for the whole? It seems to me
or
[April 4. 1904
oil
foreign concessions and settlements of Tientsin, Tientsin Native City, Peking, Tongka, Taku. Tongshan, Peitaiho, Chingwantao. Shanhaik- wan, and any other city open or close between in the neighbourhood of any of the said places or elsewhere in North China, and to carry on the business of a gas or or electric light works in all their branches and to manufacture or generate gas. electricity, or any other form of illuminant. By the resolutions sub-clauses rendered necessary to give effect to the foregoing clause were also added: also clauses increasing the capital of the company from 850,000 Tientsin sycee to $250,000 Tientsin sycee by the issue of 2,000 shares of $100 each, and altering the name of the company to the Tientsin Gas and Electric Light Co., Ld.
His Lordship made an order confirming the resolution.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR A. G. WISE (PUISNE JULGE).
PROMISSORY NOTES CASE.
Thursday, 31st March.
His Lordship gave judgment for the defen- dant, without costs, in the case in which Hop Yick sued Li Sing Fan, of the Li Wing Fat Tseung Kee firm, for $1,000 alleged to be due on Kwong Kam Chuen, Kwong Sin Hing. Lau two promissory notes both dated 8th January, Chung Ming, and Pui Cheong, trading as the made by the defendant, payable to the plaintiff Hop Sing Tong, sued Kwok Chiu Hin for $4,000 on 17th January. 1904. Mr. H. Hursthouse, of in respect of money alleged to be due on pro- Messrs. Dennys and Bowley, solicitors. repre- missory notes. Mr E. H. Sharp. K.C. (instruct.sented the plaintiff, and Mr. John Hastings, ed by Mr. E. J. Grist, of Messrs. Wilkinson solicitor, the defendant. and Grist, solicitors), appeared for the plaintiffs, and Mr. H. E. Pollock, K.C. (instructed by Mr. G. K. Hall Brutton, solicitor), for the defendant. recited that they carried on business at 18. In the statement of claim the plaintiffs
Connaught Road. Plaintiffs at the date of the issue of the writ carried on business under the style of the Hop Sing Tong, and formerly carried on business in partnership with the defendant in Hongkong and at Port Arthur and Dalny under the name of Bismark and Co. On 30th May. 1903, plaintiffs and defendant dissolved partnership on the terms that the defendant should give up his interest in the business of Bismark and Co. in Hongkong and the plaintiffs should take over from the defendant their entire interest in the business
Mr. Sharp. K.C., having opened the case, Hon. Mr. Pollock, K.C., said he had to apply on behalf of the defendant for leave to enter the case at this stage.
His Lordship pointed out that as the neces- lodged by the defendant he would be setting a sary papers and affidavits had not been timeously
very dangerous precedent if he allowed the defendant entry to the case at that stage. Defendant knew the case was coming on, and he had written asking his learned colleague and himself to proceed to judgment in his absence.
Formal evidence having been given.
His Lordship gave judgment for the plaintiffs with costs.
TIENTSIN GAS CO., LD.
Hon. H. E. Pollock, K.C. (instructed by Mr. H. J. Gedge, of Messrs. Johnson, Stokes & Master, solicitors), appeared in support of an application by the Tientsin Gas Company for confirmation of certain resolutions passed by the company for change of name and increase of capital. By these special resolutions passed and confirmed by the company in accordance with section 50 of the Companies Ordinance of Hongkong, No. 1 of 1865, at extraordinary meetings held respectively on 16th and 31st December, 1903, it was resolved that clause 3 of the memorandum of association be altered by substituting for sub-clause A a sub- clause empowering the Company to manufacture, sell, and supply any kind of illuminant in the
|
i
IN BANKRUPTCY.
BEFORE HIS HONOR SIR WILLIAM M. GOODMAN (CHIEF JUSTICE).
ABSCONDING DEBTORS.
Re the Ching Hang firm, ez parte the Joo Tek Sang firm, Mr. P. W. Goldring, of Mr. John Hastings's office, appeared in support of an application for adjudication on the debtors' estate. He also applied on behalf of the same applicants for adjudication on the estate of the Chi Loong firm.
statement of accounts filed?
His Lordship asked if there had been any
Mr. Goldring said that in both cases the debtors had disappeared from the Colony.
Mr. Bruce Shepherd. Official Receiver. stated that in the first case he had made enquiries and had found out that the debtors had left behind them a cook, whom they had informed that they would be absent for a couple of months. In the case of the Chi Loong there were more partners. He understood that owing to some contract which they had entered into they were being prevented from returning to Hongkong.
His Lordship made an order of adjudication in both cases.
:
C. E. LE MUNYON,
Mr. E. J. Grist, of Messrs. Wilkinson and application by the New York Export and Grist, solicitors, appeared in support of an
Import Company for adjudication on the estate of C. E. Le Munyon, photographer. He stated that Le Munyon's act of bankruptcy was that he had absented himself from the Colony and had suffered execution to be levied against him by seizure of his goods, which had been sold.
His Lordship Any assets? Mr. Grist-About $4,000. His Lordship made an adjudication order.
Manila prides itself on being up-to-date. We read in the Sunday Sun-Miss Molly Bentley gained the approval of Orpheum patrons last week by administering chastisement to the editor of a local sporting weekly, which she did, I am informed, in truly sportsmanlike fashion. The patrons of the Orpheum have not been at all in sympathy with the so-called criticisms of this rather erratic young man, whose criticisms (so-called) of the performers seem to have been based more upon his own personal feeling, or ill- feeling, for them, than upon their real ability or lack of it. Therefore, I am sorry to say, they had little sympathy with him.
•