916
SUPREME COURT.
IN ORIGINAL JURISDICTION,
Monday, 15th May.
BEFORE SIR H, 8. BERKELEY (CHIEF JUSTICE).
FUNG SUI TONG AND OTHERS Y. CHAN HO CHEUNG.
The Plaintiffs, Fung Sai Tong, banker, of Canton, Leung In Un, ex outor of Leung Ni Hing, deceased, and Wong Tiu Chi, xecutor of | Wong Lan Shan, deceased, claimed from the defendant, Chan Ho Cheung, of No. 376 Queen's Road Central, sued as executor of Tang Yuk Chuen, deceased: (1) A declaration that defendant held Kowloon Marine Lot 43 in trust for the
plaintiff, Fung Sui Tong, as to oue-fourth share thereof, and for the plaintiff, Leung Iu Un, as to three-fortieth shares thereof, and for the plaintiff, Wong Tin Chi, as to three-fortieth shares thereof free from encumbrances; (2) for an account of rents and profits (if any) received by the defendant and by Tang Yuk Chuen, deceased, and of all monies expended by the defendant and by Tang Yuk Chuen, deceased, on the said Kowloon Marina Lot 43; (3) payment of the amount found due on taking the said account: (4) for an order vesting the said property in the plaintiffs in respect of their said several shares therein; (5) such further or other relief as to this Court seems meet; (6) costs.
Mr. E. H. Sharp, K.C. (instructed by Messrs. Ewens and Harston) represented the plaintiffs, and Mr. H. G. Calthrop (also instructed by Messrs. Ewens and Harston) appeared for the defendant.
Mr. Sharp, in opening the case, said:-As from the pleadings, your Lordship will see defendant has no personal knowledge of the whole mat'er. He believes from the facts, and from the testator's books, that complainants are entitled as they claim, but he very properly, as execator, desires the support of a formal order of the Court. The facts a e; that in May, 1899, Marine Lot 43 was advertised' for sale by the Government. About a week before the day of the sale, a meeting was held in Canton between the man Tang, for whom defendant is executor, and three other men who are either the plaintiffs or plaintiffs' executors. Defendant contemplated buying the lot at auction, and invited the other three to contribute so far as they felt disposed. The auction took place on the 26th May, about a week after this interview, when Tang and a man called Lau were the actual purchasers for a sum of $40,000. They bought as tenants in common, paying $20,000 apiece. return to Canton he sent for the plaintiffs and informed them that he had become purchaser of a moiety of this lot, when the first contributed
On Tang's
$5,000 for a one-fourth share and the other two $1,500 apiece for what works out at a thres fortieth share apiece, and, therefore, Tang is trustee for these contributors in respect of these shares. In due course the reclamation was made at a cost of $11,000. It appears from the books that something was paid by the con- tributors on account of their proportions, but none of the plaintiffs have paid all that is due from them. The defendant will produce an account book in Tang's own handwriting, by which it is admitted that he received the amounts paid by the plaintiffs.
His Lordship, after hearing the evidence, gave judgment for the plaintiffs as per their statement of claim, and ordered that the costs of all parties be paid out of the estate.
IN SUMMARY JURISDICTION.
Tuesday, 16th May.
BEFORE MR. T. SERCOMBE SMITH (PUISNE JUDGE).
G. PASSANTINO V. CHAN LAI MING AND ANOTHER.
In this action the plaintiff Grateno Passan tino. Mechanical Engineer of No. 40 Queen's Road Central, claimed from the defendants, Chan Lai Ming, of No. 26, Caine Road, and Hung Po, his cook, the sum of $200 damages
THE HONGKONG WEEKLY PRESS AND
for personal injury and damage done to his clothing, caused by the defendant or his servant on the 26th April last negligently driving a motor car in Arsenal Street.
Mr. C. E. H. Beavis (of Messrs. Wilkinson and Urist) appeared for the plaintiff, and Mr. R. Harding (of Messrs. Ewens and Harston) for the first defendant.
Grateno Passantino, sworn, stated:-On the 26th April at about 7 o'clock I got out of an electric car at Arsenal Street. I was crossing the Street where it joins Queen's Road to go down Queen Road Eas'. I heard the noise of a moving motor car behind. I turned my had and saw the car on my right hand side about 30 feet away. I went straight on, and was about four feet from the verandah when the car knocked me down, but I could not see whether it ran over me. The second defendant was driving the motor car. I took him to the Police Station where I charged him with negligent driving, and I believe he was fined. My left leg was out and my right leg swollen. I went and saw Dr. Justi the day after the accident, He afterwards paid me six visits, and as the result of the injuries I was confined to The the house for a week, as I could not walk. doctor charged me $31 for attendance. suit produced is the one I was wearing on the day of the accident. It cost me about $22.
His Honour-It is not an utterly useless suit now, is it ?
Witness-I can wear it again. His Honour - It is not torn is it ? Witness-No.
The
Mr. Harding-It will be all right with a little brushing?
Witness.-Yes.
am
Witness, to His Honour-The motor was coming from the direction of West Point. It gave me no warning of its approach. not deaf. was about four feet from the pathway on the eastern side of Arsenal Street when I was struck. I cannot say on which side I was
hit
Gunner Samuel Smith, R. G.A., stated that plaintiff was jammed between the motor car and a ricsha. The ricsha was on the right side of the road, the man in the middle and the motor car on the left; plaintiff was knocked over on the left hand side of the road. When plaintiff was knocked down, the motor car shot across to the other side of Arsenal Street, the front wheel of the car dragging plaintiff with it. When defendant gave the warning he had collided with the ricsha, and it was 100 late for plaintiff to get out of the way. I saw the motor car sometime before. It was going very fast, I should say from 16 to 20 miles an hour-as fast as an electric tram goes.
Chan Lai Ming, who was called by Mr. Harding, declared:-I was not in the Colony on the 26th April last. I left for Canton on the 24th and remained there for about 20 days. The defendant, Hung Pe, was my cook. He had no authority to take my motor car out.
Hung Po, declared-I remember starting off for Wanchai in a motor car on the 26th April. It belonged to the first defendant. I took it out because I wanted to play with it.
His Honour-Have you ever driven in one before.
[May 20, 1905.
therefore hold the second defendant responsible for the damages suffered by the plaintiff. I think $100 will meet the case, and give judg- ment for the plaintiff against the second defendant accordingly.
Wednesday, 17th May.
IN APPELLATE JURISDICTION.
BEFORE Sre H. 8. BERKELEY (CHIEF JUSTICE), AND MR T. SERCOMBE SMITH (PUISNE JUDGE).
NATIONAL BANK OF CHINA v. P. LEMAIRE AND CO.
This was an appeal by the defendants against an order made by the Chief Justice in Chambers on the 5th April on the application of the plaintiffs, allowing the platffs to amend their statement of claim by adding as another clause of action a claim on a bill of exchange for $10,000 instead of, as the original writ of summons claimed, $10,000 on a promissory note. Mr. H. N. Ferrers instructed by Mr. P. W. Goldring (of Messrs. Brution. H-tt and Goldring) appeared for the Appellants, and Mr. E. H. Sharp, K.C, Attorney General, instructed by Mr. H. W. Loker of Messrs. Deacon Looker and Deacon) for the (former) Plaintiffs.
Mr. Ferrers-The statement of claim in this action was filed on the 11th October, 1904, and states that the plaintiffs are bankers having a registered office in Queen's Road Central, and the defendants are merchants carrying on business in the same street. The plaintiffs claim $10,000 due on a promissory note. The statement of defence was filed on the 16th Sep- tember, and the plaintiffs filed a reply on the The next proceeding was 22nd October, 1904. that certain affidavits were filed with a view to taking evidence in England.
The Chief Justice-The plaintiffs sued upon a promissory note which had been given to them to further secure an amount due to them.on & bill of exchange which had been given in December, 1903, fell due sometime in March, 1904, and not being paid on due date the defen- dants gave the plaintiffs a promissory note, which, when it became due was dishonoured. The plaintiffs then sued you upon the promis sory note which was given upon the same indebtedness as the original bill of exchange. To this the appellauts took the technical objec- tion that the plaintiffs could not sue because the note after it was given, was altered, and not restamped after alteration. They also took the objection that there was no consideration of the note. On the pleadings there was consideration on account of the bill they ought to have paid, and did not. The plaintiffs then came to me and asked leave to amend the claim and writ to add now what they might have done originally. There was no obligation on the plaintiffs to sue on the promissory note, therefore I gave them leave to sue on both. The only ground on which the court ought not to grant the amendment is, were the plaintiffs bringing up a new to be placed in the same position vis-a-vis with the original ?
case not
Mr. Ferrers -I refer your Lorships to page 354 of the White Book wherein it is stated that a plaintiff must pursue the action to which His Honour-Do you ever intend to drive be commits himself when he draws his state- in one again?
Witness-No (laughter).
Witness-No (laughter).
His Honour delivered judgment as follows:- I hold that the second defendant is not
A8 the servant of the first defendant, so make the first defendant answerable for the
tô
negligence of his servant. He was cook to the first defendant, but in no way employed to run
ment of claim. The line of action he committed himself to then he ought to be bound by. In amending the statement of claim in this action lias been undue delay, and your there Lordships should have been supplied with some reason for that delay. By amending the state-
ment of claim the plaintiffs may set up a better case, and defendants should have reasons why, after their expense and trouble in meeting the original case, the plaintiffs have not filed affidavit explaining the delay.
it was necessary to amend. What you have to satisfy us of is that the amendment now placed you in a worse position than it would have if pleaded in the first instance. There has been no delay, as the application was made before the hearing.
this motorcar. He took it out on his own account without the authority, permission, or knowledge of his master, and was not running it in the course of his employm-nt. It The hief Justice-It is not at all clear that was highly unreasonable of the Chinese cook to take it into his head to use his master's motorcar-an instrument with which he was totally unacquainted-and to run it along the streets of the city of Victoria, causing momen. tary danger to all passersby. It is clear the cook lost control of the car in Queen's Road East, and to avoid dashing into an electric stan- chion, darted into a ricsha and the plaintiff. The fact of an unskilled person undertaking to drive a motorcar does not itself amount to negligence, but his way of driving it did.
1
Mr. Ferrers-No circumstances have arisen which would justify the application which were not in existence at the time the defence was filed.
The Paisae Judge-There has been a lapse of time, but no delay.