August 7, 1905.j
plaintiff alleged was that the defendants were, in fact, partners, and that he was prepared to prove it. The question is whether the plaintiff was influenced by anything that came to his knowledge.
His Lordship -I do not think I can disbelieve all the plaintiff's story. He says he believed the defendant Li Fung was a partner, and other evidence has been given to the same effect.
Mr. Pollock-I would submit that such evidence should not weigh with Your Lordship, as everything depends on what came to the knowledge of the plaintiff. The defendants will deny that they were partners.
Evidence was led and the CARO adjourned.
Monday, 31st July.
IN APPELLate JurisdiCTION.
BEFORE SIR F. T. PIGGOTT (CHIEF JUSTICE) AND ME. A. G. Wish (Puisne JubGE).
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83
IN SUMMARY JURISDICTION.
MULLER AND JUSTI v. GOLDENBERG, This was a claim for $140 on account of
Mr. J. Hays (of Messrs. Johnson, Stokes and Master), who appeare for the plaintiffs, made a preliminary application to amend the date of the claim from 24th June to 24th April, 1905. The plaintiffs, he said, agreed to attend the defen- dant and her family for one year from the 24th April, 1904. Such attendance was not to include surgical operations, and on this account there was a sum of 820 due.
Defendant said she engaged Dr. Muller, and paid him 320 for the first operation he performed on her child. She agreed to engage him as a family doctor, but after he had performed the second operation on the child he did not again attend it for five days, and it had to be taken to
another doctor.
CHIZA OVERLAND TRADE REPORT. It is also important for Your Lordships to bear in mind in this connection that it clearly appears from Mr. Hays' affidavit filed in support BEFORE Mr. A. G. Wise (PuiSNE JUDGE). of the summons for commission that the very points on which evidence was desired were mentioned in his affidavit, so that it cannot be said these points on which it is desired to pro-medical attendance. duce fresh evidence are points of surprise. Well, My Lords, what is the position the ap- pellants have taken up? I submit that it entitles them to no sympathy at all. They have chosen to bring ou a matter for hearing without evidence; in fact, My Lords, deliberately, I would submit, trusted to chance to be able to again break down the plaintiff's case. The appellants. not having taken every available means in their power to procure evidence on commission before the trial, this Court should not now allow them to do so. They say they want to call a gentle man whom they mention in Mr. Hays' affidavit as being the head of the Chinese community in Saigon, also another witness from the San Sing Chun firm. I submit, My Lords, that by deliberately electing not to appeal from the Dr. Muller deposed-I arranged with defen. decision of the acting Chief Justice, the appel-dant to attend her for a year for an amount of lants have deliberately elected to have the case $120. Such attendance was not to include cried out, and Your Lordships ought not to operations or confinements
She has paid me exercise your discretion-because it is purely a about $50 altogether, but has not given me matter for your discretion to allow them to notice to discontinue our arrangement. There call evidence. I think I shall be able to show is still a sum of $120 outstanding for the yearly Your Lordships that the Court of Appeal enter- fee, and $20 due on a second operation. Mr. H. N. Ferrers, instructed by Mr. Hays (oftains the very strongest possible objection to Messrs. Johnston, Stokes and Master) appeared admitting further evidence to meet the pinch for the appellants, and Mr. H. E. Pollock, K... of the case. The appellants are not actually instructed by Mr. C. F. Dixon (of Mr. J. appealing from the judgment, but are trying Hastings' office) represented the respondent. to get what I submit is a very unfair advantage. Mr. Pollock-I think it will be convenient They first say they will take their chance and if I deal in the first place in address go before the Chief Justice, but are unable to ing Your Lordships, with the appellants' break down the plaintiff's case: then they go to the motion to adduce fresh evidence. In Court of Appeal and say what a hardship it is connection with that point I desire to point out for a commission to be refused, and try to get to the Court that the Acting Chief Justice another case on that ground. refused the appellants application. Therefore, from that date, My Lords, of course apart from any appeal brought by them against the decision of the Acting Chief Justice, the appellants were perfectly well aware that their only hope of laying any evidence before this Court on their side was to get witnesses to coma up here and give evidence viva voce.
A QUESTION OF OWNERSHIP, RE LAM TUNG AND THE NAM LOONG FIRM.
This appeal against the decision of the Chief Justice in a former action, wherein he decided that an amount of $2,600 held by the police should be paid over to Lam Tung, the plaintiff,
was continued.
The Chief Justice-They took that step ou the 9th June, when notice was given to admit.
Mr. Pollock-Yes, My Lord, but an important thing is that the case did not come on for trial until the 16th June. Of course, My Lords, we submit with confidence that that argument which was hinted at by my learned friend that the appellants could not be expected to appeal from the decision of the Acting Chief Justice, is not to be listened to by the Court, because that is a matter of the constitution of the Court. The Paisne Judge-You needn't go into that. Mr. Pollock-But I am entitled to point this out to the Court. Two or three months before the case came on for hearing the learned Acting Chief Justice ceased to be a judge of the Court.
The Chief Justice-That is not an argument and I don't think it is a proper subject on which to address the Court.
The Chief Justice-The question is whether in the absence of certain evidence affecting the decision, the Court of Appeal should allow that
evidence to be taken.
Mr. Pollock-I will show Your Lordships that the Court of Appeal has frequently shown reluctance to admit fresh evidence on the pinch of the case.
Counsel then discussed several of the findings of the late Chief Justice against his client.
Mr. Ferrers-The appellants did not bring this case in order to recover the small amount that was at stake. Costs of these proceedings will be far in excess of the sum in Court, but what the appellants want is to prove that they have been made the victims of a conspiracy. Therefore they are anxions to get evidence, which ought to have been presented, and satisfy the Court that there has been a conspiracy of a fraudulent kind. Before the money is handed to the plaintiff, the Court should and out whether he is actually entitled to it or not. man cannot be expected to travel from Saigon to Hongkong just because a claim has been made against him.
Judgment was reserved.
Tuesday, 1st August.
IN ORIGINAL JURISDICTION.
A QUESTION OF PARTNERSHIP.
A
Re Tong Loo, plaintiff, and Li Fung. Li Kum, Li Sheung, Liu Cbau, partners of the Tak Heung, and Tak Heung, defendants, and in the matter of the issue between the said Tong Loo, plaintiff, and Li Fung and Li Seung,
defendants.
His Honour-Did you suggest that it would be cheaper for her to have a yearly arrange- ment!
Witness-Yes, and from the 21st April to the 11th May I attended the child seven times.
Era Goldenberg, sworn, stated-I employed the plaintiff as my family doctor about April of last year. Since that time he has performed a second operation on my boy for which I have uot paid. The sum I agreed to pay the plain- tiffs was $120. I have not paid the amount because I am dissatisfied with the manner in which they have treated my boy.
After hearing further evidence His Honour awarded judgment and costs to the plaintiffs.
KWONG YUEN FIRM V. MA CHUN KU.
The plaintiffs claimed from the defendants $104 49 on account of coal sold and delivered.
Mr. O. D. Thomson represented the plain. tiffs, and Mr. F. X. Almaria a Castro appeared for the defendant,
Defendant admitted owing au amount of $67, which had been paid into Court.
His Honour gare judgment in favour of the plaintiffs for the amount claimed and costs.
Thursday, 3rd August.
IN BANKRUPTCY.
BEFORE SIR F. T. PIGGOTT (CHIEF JUSTICE).
WONG 8AN PO EXPARTE WONG CHUNG OL
This was an application by Mr. G. H. Wake. man, trustee in insolvency, asking that the Fak On Insurance and Godown Co., Ld., be directed to pay over to him two sums of $3,000 and $5,000 respectively, being sums due by the Wo Kee Hong and Kum Fang Yne to the Lai Fung Bank, which had been attached by the said Fak On Company, on the grounds that the said com. pany. before completing attachment, received notice through their solicitors, Messrs. Johnson,
bankruptcy petition against the debtors.
Mr. H. E. Pollock, K.C.. instructed by Mr. F. X. d'Almada Castro. appeared for the Trustee in Insolvency, and Mr. H. G. Calthrop, instructed by Mr. H. G. Bailey (of Messrs. Johnson, Stokes and Master) opposed the application on behalf of the Fuk On Insurance Company.
Mr. Pollock-After Your Lordships were o the beach, the appellants had an opportunity of appealing, but did not avail themselves of that opportunity. As Your Lordships are probably aware, the rules here as to appeals BEFORE FIR F. T. PIGGOTT (CHIEF JUSTICE). Stokes and Master, of the presentation of the from interlocutory orders are different to the rules at Home, where from such interlocutary orders the appellant would be debarred from appealing after the expiration of fourteen days. I would refer Your Lordships to Section 600 of the Code, which says:
"No appeal to the Full Court from any decision of the Court shall, Court, except by special leave of the be brought after the expiration of six months." The rule as to time for appealing in this interlocutory matters differs Colony from what it does at Home, and the time for appeal from any decision of the Court is six months. As Your Lordships know, the Court is defined in the Code as being the learned Chief Justice and Paisne Judge, whether sitting separately in Court or in Chambers. Therefore, My Lords, my contention is that it was open to the appellants if, when they found they could not get the witnesses up to give evidence vira voce, and they thought fit to appeal to the Full Court as now constituted, to apply that the trial be not heard until the commission had been returned,
in
The issue to be tried was whether Li were partners in the Fung and Li Seung
The plaintiff had Tak Heung or not. obtained judgment against the defendants. and now, two of them protested that they were not partners.
Mr. H. N. Ferrers (instructed by Mr. R. A. Harding) respresented the plaintiff, and Mr. H. E. Pollock, K.C. (instructed by Mr. Otto Kong Sing) appeared for the defendants.
His Lordship, after hearing further evidence, and the addresses of Counsel, stated that the whole case was a mere question as to "holding out." He would, therefore, gire judgment for the defoudants with corts.
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His Lordship delivered his reserved judgment - as follows:-During the hearing of a summons for payment out of Court of money attached under a garnishee order, notice was given to the judgment creditor that a bankrupter petition had been presented against the judg ment debtor. The fact that this notice was given in great measure accidentally can make no difference. The case, therefore, falls within section 38 of Ordinance No. 7 of 1891, which deals with this special form of antecedent transaction. It provides that the creditor is not entitled to retain the benefit of his execution, unless he has completed it befor notice of the presentation of the-petition-