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THE HONGKONG WEEKLY PRESS AND
September 18, 1905.
Mr. Pollock stated that plaintiff was compra- he got it out of the bank, with the interest | out to plaintin, but the second $6,000 should dore to the International Banking Corporation in acoruing, by simply writing his wife's name remain on deposit the costs to be taken out of Hongkong, and in that capacity he was bound on the back of the deposit receipt. Mr. the $6,000. to indemnify the Corporation against defaults Traveres was apparently of a suspicious tem. * Some discussion followed as to the appoint- made by customers who were introduced by him. perament and apparently anxious that his friendment of a trustee, but this with the framing of Amongst the customers introduced to the should not know too much of his affairs. He the order, was postponed till his Lordship sat Corporation by plaintiff were the defendants, deposited the money in the Hongkong and in chambers next day. Wong Ki Hang and Wong Ki Leung, who Shanghai Bank in January of this year, again PARTNERSHIP DISPUTE JUDGMENT. were carrying on business for some years in the following his previous tactics, and putting the Bis Lordship delivered judgm nt as follows: Colony under the style of the Wai Wo Bank. deposit in his wife's name. At the end of the six-The judgment I am about to give is based That bank failed either early this year or last months he added to the 85 500 deposited sufficient entirely on the clause of the agreement, which year and plaintiff accordingly became respon- with the interet to make it $6,000. Dealing provides that all disputes arising under it are sible to the International Fanking Corporation with the points of importance, Mr. Pollock said to be referred to the exclusive jurisdiction of for moneys due by the Wai Wo Bank and that when the money was deposited running on the German Courts. But in view of possible defendants, which amounted in round figures to for the two years Mr. Tavares did not intend future proceedings, it seems to me convenient $100,000. In accordance with the custom that to be a gift to his wife. He did not that I should first deal briefly with the other amongst compradores plaintiff-fortunately for communicate the fact to her. If he intended point of law raised on this issue. himself had obtained from the defendants it as a provision for his wife he would have held security upon certain property. He got a deed some communication with her. Another point of charge on equitable mortgage dated 16th was that the deposit receipt was kept by him: November, 1904, from the defendants. By that it was never handed to her. A third point was deed of charge the plantiff obtained the charge of that as a matter of fact Mr. Tavares was not Inland Lot 1909 as security, and it was asked that on good terms with his wife for some consider a proper legal mortgage be made out in favourable time, since February, 1904. Mr. Pollock of the International Banking Corporation. quoted cases in support of his contention, and said that the prima facie view of the case that it was intended as a gift to the wife was rebutted by the circumstance of the case. would ask his Lordship after hearing the plaintiff's evidence, to come to the conclusion that as a matter of fact he did not intend that as a gift to the wife.
His Lordship asked whose was the respon sibility for seeing this the deed was right.
Mr. Pollock thought the Registrar would see that it was in proper order.
His Lordship did not think the responsibility should be thrown on the court.
Mr. Pollock agreed but remarked that if his Lordship would make an order that a proper mortgage should be executed in pursuance of an equitable charge in favour of the International Banking Corporation that would be satis factory.
His Lordship said that in the event of some slip being discovered the responsibility would fall on the Registrar. They were not convey- ancing to the court.
Mr. Pollock said it seemed to him the Registrar would have difficulty in escaping responsibility. He would have to read through
it,
Evidence was then called.
G.A. Moir, sub-accountantin the International Banking Corporation in the Colony, produced a certified copy of the account in his book with the defendant company, and stated the account and interest up to date showed that defendants owed the International Bank 8104,483, for which the compradore was liable, as he had introduced the defendants to the Bank.
It is clear from the affidavit of Mr. Schwerr filed on the 6th of this month, that complaints are in ended to be made against the defendant in respect of his conduct of the partnership which were not included in the action brought in the German Courts: in other words, that new grounds for the relief prayed-disso'ution of the partnership—are to be put forward. While, therefore, it is clear that in respect of tho e matters which have already been adjudi. Hecated upon in Germany, and in respect of which this relief bas been refused, the matter is res judicata, yet a different foundati n to the claim for relief is intended to be advanced; and on the authority of Henderson v. Henderson, I think that such a suit in Hongkong is not barred by the judgment in the German proceed- ings. In such suit, however, the evidence as to acts done before the trial in Germany which might with reasonable diligence have been brought forward in support of the foundation for the relief prayed for in Germany, could not be adduced. It would have been a question at the trial what these aots were, and whether or no they could have been adduced in Germany if they had been discovered after the commencement of the proceedings and before judgment. Further, although it might not have been necessary to amend the Statement of Claim, yet it is so drawn that on the face of it there appears to be a
In reply to his Lordship, Mr. Pollock said that Mrs. Tavares could not have gone to the Bank to claim the money because she did not have the receipt and because she did not know of it before these proceedings were commenced. She had requested a firm of solicitors to act for her.
Plaintiffs said he lived in Hongkong, where be intended to stay permanently. He put money in the Yokohama Specie Bank in January, 1908, when he deposited $6,000 for six months in the name of his wife. At the end of the six months he withdrew the money writing his wife's name on the back of the receipt. He never informed his wife of having deposited the money in her name. In January, 1904, he deposited money in her name in the Hongkong Bank to the amount of $5,500, Neither did he inform his wife on that occasion of having deposited money in her name. In July, 1904, when the first deposit receipt ran out, he col lected the interest and put in sufficient to make Plaintiff said he had been compradors of the a fresh deposit for $6,000, also in the name of International Banking Corporation from May his wife. He did not inform her of that trans- 1903. He knew defendants personally. They action or hand the receipt to her. He deposited carried on business under the style of the Waithe money in her name so that his friends Wo Bank, and did business with the Banking Corporation. He introduced then to the Cor- poration and obtained from then a deed of mortgage in security. He was responsible for the defaults of the Wai Wo Bank, and had send a statement of their account to the defendants, but they had left the colony. He had instructed his solicitors to prepare a legal form of mortgage in favour of the International Banking Corporation.
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Mr. Pollock said that was his case. He asked for relief in accordance with the statement made.
His Lordship made the requisite order.
CURIOUS BANKING TRANSACTION.
Mr. H. E. Pollock, K.C., appeared in the matter of the Hongkong and Shanghai Banking Corporation asking for relief against Mrs. Augusta Camilla Tavares made on behalf of herself and infant daughter against the claim of Mr. A. H. Tavares, husband of tho said. Mrs. Tavares.
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His Lordship Before this action is heard I wish to say a few words. I received a letter in connection with this case. I sent it back. I received another this morning. I wish it to be understood that such letters should not be written. The second letter was returned unopened.
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Defendant was not represented. Mr. Pollock stated that the question was whether a certain sam deposited in the Hong- kong and Shanghai Barking Corporation should be decreed by his Lordship to be the pro- perty of the husband or whether it should be decreed to be the property of the wife, the de- fendant in this case, The circumstances were these. In 1903 Tavares deposited a sum of money in the Yokohama Specie Bank în the name of his wife without informing her that he had done so, and at the end of the year
would not come borrowing money from him. He bad lent money before. He was not living with his wife. She went to Macao last year and never came back. He did not know the reason why. He had asked her to return to Hongkong. When she left he gave her $2,000, but he did not intend the money deposited in the Hongkong Bank as a gift to his wife. At present he had lent about $7,000 or $8,000.
The case stood over till later in the day. On resuming in the afternoon. Mr. Pollock said he should like to differentiate between the cases to which his Lordship had drawn his attention. Having addressed the Court at length on these he argued that Tavares did rot intend to make the money deposited a gift to his wife but being of a suspicious nature he took that course not to let his friends know he had such an amount of money.
His Lordship thought that was a lame excuse. The point was whether at the time be deposited that money he intended her to keep it.
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prima fuoic case of res judicata. It is not till the last moment, that the new grounds are brought forward, and the continuance of the suit could only have been allowed subject to terms as to the costs of this motion.
I now proceed to deal with the exclusive jurisdiction clause. The plaintiffs and the defendant entered into a partnership agreement in Germany, one clause of which provided that all disputes concerning the partnership should be submitted exclusively to the jurisdiction of If words are to be the Hamburg Court. given their ordinary meaning, this must mean that all actions in respect of partnership disputes are to be brought in Hamburg and not elsewhere. It is said that in spite of this clause this action may be maintained in Hongkong. I will deal presently with the fact that the partnership agreement was to be in part performed in this Colony,
Now the authority for this proposition is said to be Scot v. Avery (5 H.L.Ca, 811), in which the doctrine was affirmed that “parties cannot by contract cust the Courts of their jurisdiction"; which might be put in the cruder form that if two persons agree for good consideration not to sue in respect of a given master, yet they can sue, It was in fact thus stated by Alderson B.-" any agreement which is to prevent the suffering party from coming into a Court of law cannot be supported.”
The principle thus baldly stated needs much examination: with respect, more than it receiv- aed by the Judges and the Lords in the case, There are, however, except Lord Campbell.
opinions and judgments certain sentences in the o which throw some light on the meaning of the doctrine.
Plaintiff was recalled and, questioned if he made his wife an allowance, replied that priest in Macao owed him $3,000 which his wife was collecting at the rate of $40 a month and keeping. She also lived in a house belonging to him. With regard to the $6,000 deposited in the name of his daughter, he intended that for her use in the event of his going abroad or his dying. He did not wish his wife to handle it. When he put the $6,000 in his wife's name he did not intend it as a gift to her. His mind had not been changed as the result of her staying in
Macao.
His Lordship said-I am quite satisfied there was no intention to make a gift with regard to the wife, but there was with regard to the danghter. The first $6,000 may be paid
Coleridge J. said: "If two parties enter into a contract, for the breach of which in any particular on action lies, they cannot make it a binding term that in such event no action shall be maintainable, but that the only remedy shall te by reference to arbitration. Whether this rests on a satisfactory principle may well be questioned; but it has been so long settled that it cannot be disturbed. The Courts will not enforce or sanction an agreement which deprives the subject of that recourse to their jurisdiction, which has been considered a right.