860
dent of Victoria Gaol ordered him to have the body of the prisoner before the court to testify to the truth according to his knowledge, and stated that the prisoner was to be returned to gaol after he had given testimony. Sir Henry Berkeley did not think that was what t ́e prisoner's advisers wished. The result was that no writ was issued and the other writ had since expired. However, the Attorney General was prepared to proceed as though the prisoner's Counsel was applying for a rule nisi. The question was whether the Magistrate had before him the facts which show the prisoner was a subject of China.
After a lengthy argument His Honour reserved judgment.
Wednesday, 7th June,
IN. ORIGINAL JURISDICTION.
BEFORE MR. F. T. Piggott (CHIEF JUSTICE).
MA KIN TING V. LUTGENS EINSTMANN AND CO.
The question at issue ia this case as the amount of damages Mr. Ma Kin Ting is liable to Messrs. Lutgens Einstmann and Company on account of his acting as surety for Messrs. Lutgens Einstmann aud Company's compra- dore. Mr. Calthrop, instructed by Mr. Almada e Castro, appeared for Ma Kin Ting, plaintiff, and Mr. H. E. Pollock, K C., instructed by Mr. H. Hursthouse (Messrs. Dennys and Bowley). for the defendant company.
THE HONGKONG VEEKLY PRESS AND
The Official Receiver - I would ask Your Lordship to adjourn the case, as there is no statement of affairs o accounts, and the books have been taken away.
典
(June 12, 1905.
managed the business My share was $5,000. | extended to $15,000 After carefully examin. I do not know where the books of the firm ing his statements, I came to the conclusion have gone.
that the effect of his evidence was that the accounts of the compradore's office were in fact sent to him by the compradore once a year, and, that he had taken an active part with the comprador in getting a mutual friend, on › Young, into the compradore's office. I see no rason to doubt, in this respect, either the plaintiff's evidence or the defendant's afidavit. though the plaintiff's evidence in other respects is not worthy of credence. Judgment will be for the defendant on his motion, in terms of the motion, with costs; and the plaintiff's motion is dismissed with costs.
Mr. Gedge--I have no objection, but should like to ask this man a few questions.
Witness, in answer to Mr. Gedge, said that he c uld not say whether or not Lau Wai Chone was a partner in the Wing Shing Loong and Lai Fang firm. The two names belonged to the same shop, gold leaf business being carried on under the sign of the Wing Shing Loong, and banking business under the sign of the Lai Fang. The business was started some years ago. Witness looked at the accounts once a year, knew about the profit and loss, and received interest on his capital. He had not seen Lau Wai Chune's name in the books.
The case was adjourned.
LI HING EX ARTE MA YING PO
Mr. P.get Hett, saying that he represented over a $1,000,000 interested, applied for ad- judication in this case, and the application was grant d.
Mr. R. A. Harding, representing the debtor, asked for a fortnight within which to file the statement of affairs which had to be translated from Chinese. The application was granted.
IN ORIGINAL JURISDICTION
Mr. Pollock moved that the plaintiff may be MA KIN TING 1. LUTGENS EINSTMANN AND CO. ordered to pay to the defendan's $7,000 and costs Mr. F. T. Piggott, Chief Justice, gave judg. of action and that the remuneration of the refereement in this issue as to the amount of damages may be fixed by the Court, that the amount in Court to the credit of this action may be paid out to the defendant's solicitors, and that the report of the referee (Mr. A. R. I owe) filed on 26th May, 1905, may be carried into effect.
Mr. Calthrop moved that the report of the referee, dated 26th October, 1903, may be remitted to the said referee (Mr. A. R. Lowe) for rehearing in the following respects:-To state in his report the dates of several contracts for the sale of goods by the defendants to different purchasers; the time for delivery of the goods; the time when the goods were delivered, and, if time were given to the said purchasers, what length of time was given; and to state in his report to what extent the plaintiff had been prejudiced by the neglect of the defendants in not enforcing the said contracts according to their terms, and in not giving notice to the plaintiff of the default on the part of the principal debtors, and by delay in not disposing of any goods which remained in the possession of the defendants, through breaches of the
contracts.
The case was adjourned.
Thursday, 8th June.
IN BANKRUPTCY.
Mr. Ma Kin Ting is liable to Messrs. Lutgens Einstmann and Company on account of his acting as surety for Messrs. Lutgens Einstmann and Company's compradore. Mr. Calthrop, instructed by Mr. Almada e Castro, appeared for Ma Kin Tine, plaintiff, and Mr. H. E. Pollock, K.C., instructed by Mr. H. Hursthouse (Messrs. Dennys and Bowley), for the d-fendabt
company.
His Lordship said:-The plaintiff is surety of a c mpradore and asks for an account in order that is liabilities may be determined. The accounts having been referred to Mr. A R. Lowe, he has made a report finding a certain amount to be due from the compradore to the defending firm, and therefore due by the com. pradore's surety: his finding is tha this surety is liable to the full extent of his suretyship-$15,000 -the compradore's liabilities reaching the sum of over $21,000. The def ndants move for judg. ment in the terms of the report; the plaintiffs move to have it remitted for re-hearing
on
After discussion as to what judgment should be given on the writ issued by the plaintiff for an account in order to complete the record, His Lordship decided that, the result of the enquiry on the report being in favour of the defendants, the proper course. under rule 556 was to enter judgment for the defendants with costs, on the application of Mr. Pollock.
Mr. Pollock applied for immediat execution. There was $1,0 ́0 costs secure but $7.000 was dus.
Mr. Calthrop-Immediate execution does not mean that you can arrest the man, but that you can seize his property,
Mr. Pollock-Yes, it does in this Colony. Mr. Calthrop-Where is the authority! Mr. Pollock-We will take the risk of what we do My Lord (laughter) I think it is for the bailiff to find out how he can have it, but I am afraid the man may be off already.
An order was made.
IN SUMMABy JurisdictION.
BEFORE MR. A. G. WISE (PUISNE JUDGE).
IU KU ON V. TSEUNG KENG.
This was a disputed claim for $504 interest. Mr. F. Deacon appeared for the plaintiff and Mr. H. Husthouse for the defendant. Th defendant denied that there was any contract for interest on the loan in question, $20,000. In course of evidence, however, it was proved that the defendant promised to pay interest. Judg. ment was given for the plaintiff and costs,
MOK CHER FUNG V. FING KIT HIN.
This was a claim for $627.66. Mr. Almada e Castro appeared for the plaintiff and Mr. Dixon for the defendant. This was a claim on account of money paid by the plaintiff as guar- antor for the defendant on account of short delivery of cargo. The defendant contended that he and the plaintiff were partners but, being unable to establish this, judgment went against him.
Friday, 9th June.
certain grounds, the main point being that some of the items of the account relat back over a long period, during which it is alleged no notice was given to the surety of the compradore's liability. Recourse was bad to the rule of law that if time is given to a debtor the surety is discharged. I am of opinion BEFORE MR. F. T. PIGGOTT (CHIEF JUSTICE), that this rule has no application to the case of a
BEFORE MR. F. T. PIGGOTT (CHIEF JUSTICE). compradore and his surety when time is given
T
WONG BAN PO EXPARTE WONG CHAN OL
The Official Receiver (Mr. Wakeman) explained that this was an adjourned public examination, adjourned so as to give notice to two persons to present themselves as partners. Mr. H. J. Gedge appeared on behalf of Mr. Lan Wai Chune (Compradore of the Hongkong & Shangbai Bank), who was summoned as a partner but denied partnership. The only partner forthcoming was Ma Fat Ting.
Mr. Gedge-May I examine Mr. Ma Fat Ting to find out on what he bases his assertion ? His Honour-There was an objection to a `similar cross-examination to this last week.
Mr. Gedge-The objection last week was on the grounds that a debtor cannot take part in a public examination. But Mr. Lau Wai Chane is not a debtor; he has to be proved a debtor first.
His Honour-An issue will have to be tried.
I allow this.
•
Ma Fat Ting examined by the Official Receiver said-I am a partner in the Wing Shing Loong and Lai Fung. I am only an outside partner; I was not managing the business; we Chinese outside partners do not know matters inside the shop. The partners I know are Wong Sau Po and Cheng Kwan Pak, who
to Chinese customers whose liabilities come within the guarantee of the compradore. If the rule had any application it would apply to the compradore as
well as to his surety. But the very nature of the duties which the compradore undertakes show that he is privy to the granting of time if, in fact, he himself has not granted it. The rule. however, might b› brought in if time had been granted to the com- pradore himself. This does not appear to have
been the case.
There was a provision in the agreement to the effect that the compradore was not to be called upon to a greater extent than 85,000 in one month. It seemed to me at first sight that this proviso might possibly be con- strued as meaning that there would be a monthly rendering of ace unts; and that, if that had not been done, it might have been tantamount
was
to the granting of time An affidavit was put in by the defendant firm to the effect that the plaintiff's interests in the compladore's office wert looked after by some one representing him If this affidavit stood uncontradicted it unnecessary to construe the proviso. The plaintiff was called in order, it was said, to contradict it. His evidence was more than confused and contradictory; it even went beyond his counsel's instructions, as he evi dently tried to deny that his guarantee
IN ORIGINAL JURISDICTION
DODWELL AND CO v. B. J. MOSS. In this action Mr. H. E. Pollock, K.C., instructed by Mr. Bailey, of Messrs. Johnson, Stokes and Master, appeared for the plaintiffs. The defendant W&S neither present nor represented.
Mr. Pollock set out the facts from the statement. The claim was for $54,631.49. The defendant was 8 merchant lately carrying on bu iness A1. Shorncliffe, Garden Road,
Hongkong. For some years prior to June 5th, 1901, he was a partner with G. B. Dodwell and F. E. Richards in the firm of Dodwell
Carlill and Co., carrying on business at Foochow, Colombo and London, the head office being at Foochow. On June 5th Mr. Richards retired from the Company and Messrs.
Moss and Dodwell carried on the ba‹iness until 31st December, 1901. Bean agreement entered into between the plaintiffs and Messrs. Moss and Dodwell it was agiped that the business of the firm of Dodwell, Carlill and Company should be liquidated by the plaintiffs up to 31st December, 1901, and that from and after that date the plaintiffs would carry on business on their own account. It was also agreed that the plaintiffs would be accountable to MessTA. Moss and Dodwell in respect to say profits which accrued from the liquidation and that Messrs. Mons and Dodwell should be liable for