58
Mr. Holmes-It could not be paid in, because the person tendering it is not a party to the action. My client is now liable to pay all fees and the cost of detention of the launch.
His Lordship-If somebody is willing to pay what is found to be due, what does it matter to you?
Mr. Holmes-If my client could be sure of getting the money it would be another thing. At present he has absolutely no security.
His Lordship-No, but his costs could be paid into Court.
Mr. Holmes-I don't want costs. I am the defendant.
His Lordship-Yes you do, but it is no good. my hearing the case. It is admitted there was a collision and the third party is willing to pay. Mr. Holmes-There is a liability for the collision, but I don't admit it as far as my client is concerned.
His Lordship-The question is as to whether the defendant, or the third party or somebody else is liable.
Mr. Gardiner-I heard the third party was dead when I was about to proceed with the case. His Lordship-Whom do you want to sue? Mr. Holmes-I am the defendant, but I understand my friend does not want to sue me at all. He wants to sue somebody else.
Mr. Gardiner I will ask your Lordship to decide whether under the charter party the defendant is or is not liable.
His Lordship-Are you going to sue the defendant or are you not ? ́
Mr. Gardiner-Yes.
His Lordship-Very well, go on. Mr. Gardiner I will ask your Lordship for an adjourr ment.
His Lordship-If you want to sue the defendant, go on. If you don't, I will put the case into Friday's list.
Mr. Gardiner-The third party is present. His Lordsbip-Oh. yes. There she is weeping. She has been here always cries when she comes.
THE HONGKONG WEEKLY PRESS AND
| against Ullmann and Co., to restrain them from infringing certain of the plaintiffs' trademarks. Mr. M. W. Slade, instructed by Mr. John Hastings, appeared for the plaintiffs, and Mr. E. H. Sharp, K.C., instructed by Mr. C. D. Wilkinson (of Messrs. Wilkinson and Grist) for the defendants.
|
to
41
21 azure
His Lordship's judgment was so long that it took nearly an hour and a half to deliver. | After reviewing at length the evidence adduced, the Chief Justice passed on to the law of the case. He said he must emphasise what he thought was too often over- looked that the law as to infringement of trademarks was but a branch of the law of torts, with special rule, it was tru applicable to the circumstances under which the rights were acquired and the infringements of them occurred. Where a man unlawfully put a portion of another's trademark on goods which he sold to a third, and that purchaser was enabled thereby to complete the mark, and so infringed it, then the first man was liable if he knew the purchaser was likely so to complete and infringe the plaintiffs' trademark, or if he ought as a reasonable man to have foreseen that the purchaser would or was likely to do this. It seemed to him that the "azure" mark. hed come to be regarded by the Chinese as & trademark, and that it. had become common the trade. He was theref re
of opinion that it had become a trademark. Concerning the plain
marks, he was of opinion that whichever way the case was put the plaintiffs must fail. With regard to the "Ina" mark, the plaintiffs were entitled to an injunction restraining the defendants or their agents from making use of the mark either in Hongkong or in Hongkong as a distributing centre for the rest of China. This would cover the "Ina" mark in any form resembling the plaintiffs' "Ina " mark, either without a border or with any form of device as its surround-
7 be account to before, and ing.
be taken required some consideration. The remarks of the Vice- Chancellor in "Beard v. Turner' seemed In that case specially applicable to the case. there was a standing by with full knowledge of the infringement, and here, so far as Bovet wis concerned, there was & similar standing by with the knowledge of what Ullmann was doing.
was only entitled to relief from the day when he himself took action, The account would therefore date from the time of the first intimation given by Leuba or his "gents. The injunction and account woul include the "po wai" mark for what they might be worth. H doubted whether any on fasion would arise with regard to the sales, if any, of what were called the "F.B. po wai" watches So far as the last paragraph of the relief claimed was concerned, he had some doubt as to wha was the correct form of the order. He did not think the order for delivery up, canellation etc., should cover the watches or other goods which were ordered from Switzerland or else where during the time when Bovet was standing by or prior to the date of Lenbas' first intimation to the defendant, although the injunction would restrain their sale in Hongkong. Strictly speak ing, the injunction covered any goods coming to Hongkong and thence distributed to Chin His Lordship suggested to the parties that they should agree that the existing stook of Ina watches coming within the terms of the injune tion should be shipped to Shanghai, with a undertaking that none of them should be sold to dealers in Canton or other places sully supplied from Hongkong. Leave was given to either party to apply to vary this order. The question of costs was allowed to staud over until the final settlement of the order.
Mr. Gardiner-If she is prepared to give me the offer she made yesterday, I am prepared to withdraw the action.
The widow, on being called, said she had handed Mr. Hett $350 for him to arrange.
Just then Mr. Hatt appeared in Court, and in reply to his Lordship said his client had handed him $350. He had not paid it over, however, because Captain Douglas bad estimated the damage at $237 and said he was willing to repair it for that amount. Throughout his client had been ready to pay the amount of the valuation.
His Lordship-If you cannot settle the matter between yourselves, why not refer it to the Registrar?
Mr. Heit-Defendant's point is that the action has been wrongly brought against him. He will ask for costs either from the plaintiff or from my client, and we are not prepared to
ray.
His Lordsbip-I will give judgment for plaintiff, the question of damages to be referred to the Registrar and all questions of costs reserved.
Mr. Holmes - I would ask your Lordship to allow the case to stand over till Friday.
We
His Lordship—You've admitted it, Mr. Hett-My friend's client does not. admit it, but the plaintiff brought the action against the wrong man.
His Lordship Why don't you pay the $350
into Court?
Mr. Hett-We don't admit that $350 is due. We are prepared to pay in $237, the amount of
the valuation.
Mr. Gardiner-My valuation is $473.
His Lordship-Think about it, and find out the cost price of the boat. The case is adjourned till Friday, by which time you may setile it. The old lady is crying now, but she won't cry then.
Thursday, July 26th.
· IN ORIGINAL Jurisdiction.
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
LEUBA V. ULLMANN, His Lordship delivered judgment in the case in which C. and C. Lenbe sought an injunction
Louba
CHINESE EMIGRANTS TO AMERICA. The Kwong Yee Chau firm sued Chan Cho sui to recover the sum of £9,794 65
(July 28, 1906.
such representation, several persons paid the defendant money, the total amount he received being $9,794.65. Such persons were they shipped to the United States, but on arrival they were refused admission and returned to Hongkong. A these persons were unable to obtain repayment from the defendant, they were claiming the amount from the Kwong Yee Chan firm.
After hearing the evidence his Lordship gave judgment and costs for the plaintiffs.
IN BANKRUPTCY.
BEFORE ME A G WISE (PUISNE
JUDGE).
A BIG FAILURE.
Re Lau Wai-chuon ex parte Lau Wong-san. This was an application that the debtor be adjudicated bankrupt.
Mr. R. F. C. Master (of Messrs, Johnson, Bokes and Master) appeared for the petitioning oreditor, and Messrs. C. F. Dixon (of Mr. John Hastings' office) and F. B. Deacon (of Messrs. Deacon, Looker and Deacon) for other creditors.
Mr. Master, in support of the application, said the meeting of creditors had been held and the public examination closed. The CAS9 was adjourned by the Chief Justics on May 10th in order that the Official Receiver might make inquiries regarding the recovery of certain assets. No resolution had been arrived at at the meeting of creditors.
Messrs. Dixou and Deacon opposed the application.
Mr. Wakeman said that when the case
was
first heard it was adjourned by the Chief Justice in order that inquiries might be made as to certain debts which it was stated could be recovered. Regarding an amount of $50,000 said to be owing, the debtors said they would defend any action brought against them for the recovery there f With regard to another debt of $1,000 in Canton, he had written to the debtor, but was unable to get an answer. The debtor's assets were $700, while his liabilities amounted to over 2 million dollars,
Mr. Dacon-There is another $600,000 due
to my client which has not been mentioned at all.
*
His Lordship-What is the good of sijadi- cating the man bankrupt? You won't get five per cent. of your costs.
Mr. Master-Mr. Dixon has two actions against the debtor which were set dowa for trial before the bankruptcy petition was presentel. If he gata jalgment in those actions he will take everything, ant the other creditors will get nothing.
His Lordship-There is nothing for anyone so far as I can see.
Mr. Master-If these judgments are given against him, the defendant will be sent to goal where it will be much more difficult for th Official Receiver to get any information out of him which may be useful. If the debtor i‹ adjudicated bankrupt his assets will be divide among the creditors.
His Ldship-The receiving order was made · on the statement that the debtor had assets t› the valu · of $70,00 ', wheress it turns out that his assets are $70), which wit pay a very small percentage.
Mr. Master contended that his Lordship ould not dismiss the receiving order, but M. Deacon was of opinion that he could, an l quoted authorities.
His Lordship adjourned the case for a wook, when the debtor will be called.
EXAMINATION CLOSED.
Re the Kwong Ying Leung ez parte Chin Chouk.
The Official Receiver contioned this publis H.K.examination. Mr. J. 8. Hárston (of Messrs. Ewens, Hirton and Harding) and Mr. J. H. Gardiner (of Mr. O. D. Thomson's offic)) appeared for creditors.
Mr. Calthrop (instructed by Mr. Holmes), who appeared for the plaintiffs. said he was proo-eding on
writ of foreign attachment, the defendant having been out of the Colony since July 25th, 1 04. Defendant was a partner in the plaintiff firm, but they were unable to obtain his address. While in Hongkong, without the knowledge or consent of the firm, he entered into an agree ment in writing with certain persons to secure their admittance into Americi. He pledged the credit of the plaintiff firm by affiring its 'chop to the said agreements, and, relying on
i
ጉ
The examination having been closed by his Lordship. Mr. Harston applied that the debtor be adjudicated bankrupt. The application wa‹ granted.
It is reported that Russia has the intention of establishing an arma manufactory east of Lake Baikal with the object of furnishing the necessary armament to the Far Eastern troops.