98
Some time after plaintiff took possession of the launch the Wei Yuen firm went bankrupt and the launch was seized by the Official Receiver.
The plaintiff claimed that he was entitled to the launch and it was released. It then dis- appeared and plaintiff called in the services of the police, who located the launch at Canton Plaintiff efter producing proofs of ownership to the British Consul at Canton received the launch again and brought it down to Hongkong. The launch was subsequently seized by the Official Receiver.
Evidence was led and the case adjourned.
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. WISE (PUISNE JUDGEJ
F. KIENE . M. K. NEW MAN."
The plaintiff, the manager of the Equitable Life Insurance Society, claimed from the defendant the sum of $1,652.45, being balance due on money lent. The claim was reduced to $1,000 to bring it within the summary jurisdiction of the court.
Mr. R. Harding (of Messrs. Ewens, Harston and Harding) appeared for the plaintiff, and Mr. C. E. H.Bearis (of Messrs. Wilkinson and Gris) represented the defendant.
Mr. Harding stated that the defendant was formerly in the employ of the plantiff, and
during that time plaintiff advanced him sums amounting to $3,092.50, of which $1,440,05 had been deducted (being commission due to defendant) leaving a balance of $1.652.45 still due. The questions which arose were whether defendant was entitled to commission premiums paid or due after he left the plaintiff's employ. and if so when such com- mission became due.
Ou
The Puisne Judge-I am quite clear on one thing; he is entitled to commission when he has eained it.
Mr. Harding-The question is. has he earned it?
His Honour, after hearing the evidence, gave judgment for the plaintiff with c.sts. Execu- tion was stayed until the 18th fastaut.
WONG KWOK PAN . THE MI CHAN FIRM,
This was a claim for $103 16 being on account of balance due for goods sold and delivered.
Mr. F. X. d'Almada e Castro. who had previously appeared for the defendant. asked leave to withdraw from the case.
The Paine udge grauted the request and pointed out to defendant that there was no Mi Chan.
Wong Kwok Pan-It is not shut up. The Puisne Judge-Well, you can get judg.
ment. Prove service.
After service of the writ was proven, aud evidence as to the debt given, the Puisne Judg gare judgment for the plaintiff. remarking that the plaintiff bad better he careful who he leried execution against.
Wong Kwok Pan-1 sued for this money on July 22. but it was July 28 before the lawyer got it into court.
The Puisne Judge-The solicitor for the defendant got the case adjourned until to-day.
It was pointed out that an advertisement had been inserted in certain papers that the
Mi Chan had closed up.
:
A
[August 12, 1905.
THE HONGKONG WEEKLY PRESS AND
ground that a summons for a commission to contrary to the spirit of the decisions to allow him now to come forward with a reduced take evidence in Saigon and elsewhere had been dismissed in Chambers that the evidence application. The case is even stronger than specified as obtainable in the summons was the Marriot v. Hampden, to which reference was made in a reccut bankruptcy case. The defen- evidence specified in this notice of motion: and that the judgment of the court below showed dant has not found the receipted bill which be this evidence to be essential to a just decision had lost he has found out the step which he There ought to have taken. If the remedy is gone in being arrived at by this Court. are a great number of cases in which the right the one case, it is certainly gone in the other. of the Court of Appeal to hear further evidence In this respect the role which prevents a person has been discussed and explained. It will, how-recovering money, which he bas paid under ever, be necessary to refer only to two or three compulsion of law, cannot be different in prin- of the most important decisions. In re Chennelciple from that which governs the admission of The reason for (8 Ch. D. 492) fresh evidenc was allowed fresh evidence on appeal. because it appeared that the Court below had applying that principle in this case is the acted in such a manner as to throw technical stronger, because there was another application difficulties in the way of the administration of which the defendant might have made at any justice. The question then is, was this evidenceex-time before the conclusion of the trial, but which cluded in the Court below by reason of a techuical he did not make. The conclusion to which I come from these cases is that where the objection: Without doubt, No. The evidence was excluded by an o der of the Judge in judge has iudicated that the absence of cer- tain evidence has had a material effect upon his Chambers: there was no appea! from that decision: and no application of any sort was made decision, and has given judgment accordingly, to the Court during the trial which would have the Court of Appeal should not allow that enabled it to make an order for this evidence to evidence to be taken on the rehearing. This he taken. It is idle to contend that the sugges-point is directly covered by the dictum of Jessel tion which I made at the close of the trial that Letters of Request should issue by en sent, coustituted an application on the part of the defeudauts:
to
case
Iefusal
to
which it was
new
M. R. cited above. The defendant's counsel says it is very hard to have such valuable evidence excluded. But this arises from the that or
my
fact that the affidavit made in support of issue them
amonuled
disclosed ex officio
commission a the summons för
Ou the
facts the actual technical
alleged objection similar to
I dealt with in re Chennell. In Sanders v.
the witnesses in Saigon would give. Sanders (19 Ch. D. 173) the Court of Appeal have already intimated that I think this is said that the leave to adduce fresh evidence is wrong. See what it led to. The learned counsel an indulgence. The reastus given for the seemed throughout his argument to assume that refusal in that ease were that 'the appellant the strength of his application lay in the fact might have addue the evidence in the Court that this particular and specified evidence had below that he might have shaped his case been excluded; and to such desperate straits was better." Jessel M.R. said "as it has often been he reduced, that at the close of his argument, he said, nothing is more dangerous thau to allow referred to these facts as evidence already given.
after a fresh oral eriden to be adduced
Such a statement as that made in the solicitor's discussed in has ben
Court. The affidavit could not even be dignified with the exact poiut on which evidence is wanted name "hearsay." for the deponent had merely having thus been discovered, to allow fresh heard that somebody else might say something. evidence to be introduced at that stage This was only equalled by the attempt to would offer a strong temptation to perjury." introduce in the Court below, and here, the The point involved in the present case is not written statements of people in Saigon who were not called as witnesses. I must now covered by the decisions themselves, but it is well covered by the principle on which they consider the case of the Copiapo Company (10)
The proezed.
point here is whether, Times L. R. 180). Lord Justice Lindley lays when the evidence which it is sought down this principle: that if the Court thinks to introduce was excluded from the Court that a case has been "decided on insufficient below after an attempt to get it by commission,; evidence and that the evidence proposed to be enable the the order for a commission having been refused, adduced would be sufficient to the Court of Appeal ought to admit the new Court to discover the truth, that would be a
ground" for admitting the evidence. I think it should be admitted if the, special
evidence. commission was wrongly refused perhaps even
With all respect to the learned seems to judge, it
me impossible to give ; though there had been no appeal. It se mis to me
words their apparent meaning. that the Court might reasonably treat the to these motion to adduce further evidence as itself an They are diametrically opposed to the prin
If the fact that appeal from the Judge in Chambers, But this ciple of every other case. case does not fit in with this proposition. I the evidence proposed to be adduced would indicated in my judgment two points on which i be sufficient ground for admitting it on the reliable evidence could have been obtained from; rehearing, there would be no point in the Saigon, which seemed to me to contain the remarks of the Master of the Rolls in Sanders kernel of the question of truth or falsity. If r. Sanders, that the case might have been shaped an application had been made for Lett rs of better in the Court below: no reason for laying Request to obtain evidence on the-e points and it down as rule rarely to be departed from that it had been refused. then this Court would have fresh evidence shall not be introduced because acted on the principle I have just indicated. nothing is more dangerous than to allow it. But this was not the application. nor did the And certainly if Marriot v. Hampden had been application which was made in any way resemble an appeal, instead of an action for money had it. It was to examine in Saigon or elsewhere and received, the doctrine laid down by Lord in Aunam or French Indo-China certain specified Justice Lindley would have warranted the and lo obtain the additional reception of the fact that a receipt had in fact witnesses,
been given as new evidence on the rehearing. What was said in the judgments in that case teen other Chinese shop or firms. This pre- sent motion, therefore, is not in any sense an would have been equally applicable to the case appeal from the Judge in Chambers: it is au if it had been an appeal:It would tend to independent motion. But it is said that on one
encourage the greatest negligence if we were point the motion is identical with the original to open the door to parties to try their causes application, that is, with regard to the evidence again because they were not properly prepared the first time with their evidence. Moreover, of the Tsang Shing firm in Saigon That is :: and if the defendant had at any time as to the facts in the. Copiapo case, I find it limited the application for a commission hard to understand why the issue, if it had been to take the evidence of this firm aloue. directed, would not have completely cleared up o of this firm and of one or two other the question whether there was such a man as specified witnesses, it seems to me more than the person whose existence was challenged. doubtful whether the learned judge would have Having other cases in the Court of Appeal to refused it. If he bad refused such an applica- go upon, I must decline to accept the broad tion. then again it is conceivable that this doctrine said to be derived from that case. Court wonki have grunted this application. | This motion disposed of, I some to the facts. to alter the opinion I throughout to Lut the defendant stuck
It is apparent this cloud of witnesses, and that being formed after hearing the case.
1 aid before, I am not, from the terms of my judgment that I ex- say: as surprised that his summons was dismissed, perienced considerable difficulty in arriving at and I think it would be going directly it and I, therefore, was the more anxious to hear
The Paisue Judge--It looks as though the adjournment was applied for to put the adver- tisement in. There seems to me something
fishy about it. However, he has his judg.corroborative evidence of no less than nine
索引
?2
ment. but I am afraid he has been done.
If I had known of this I would have heard the case before.
Thursday. 10th August.
IN APPELLATE JURISDICTION.
BEFORE SIR F. T. FIGGOTT (CHIEF JUSTICE, AND MR. A G. WISE (PUISNE JUDGE).
A QUESTION OF OWNERSHIP. RE LAM TUNG AND THE
NAM LOONG FIRM.
Their Lordships' reserved judgments in this
matter were delivered.
His Hocour the Chief Justice said:-This was a motion to reverse the judgment of the court below on the trial of this action, and to enter judgment for the defendants. A motion was made to admit further evidence, on the
so 1
|
1
1
до see
reason