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SUPREME COURT.
Saturday, January 19th.
IN APPELLATE JurisnicTION,
Before the FULL COURT,
Po
TRADE MARK DISPUTE." Judgment was delivered by their Lordships in the appeal by Messrs. Ullmann and Company against the judgment by the Chief Justice awarding an injunction in favour of Messrs. Loubs Frères against the appellants, restraining them frem selling or offering for sale Wai" and "Ena" watches not of the manufacture of Messrs. C and C. Leuba, Sir Henry Berkeley, K.C., instructed by Mr. C. D. Wilkinson, of Messrs. Wilkinson and Grist, represented appellants, while Mr. M. W. Slade, instructed by Mr. John Hastings, appeared for the respondents.
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The Paisne Judge (Mr. A. G. Wise) delivered bis judgment first, remarking at the outset that he differed from the Chief Justice Then he dealt with the arguments advanced in the hearing of the case and the evidence given and stated, with regard to the "Ena" mark, that the plaintiff should have been non- suited in the Court below, that the further | evidence should not have been admitted ou the appeal and that it did not entitle the res. pondents to succeed. If the "Ena'
case failed then the "Po Wai case failed also, and he thought that the appeal should be upheld. The action of Messrs. Ullmann and Company in openly exhibiting the watches for sale and in advertising them did not indicate any secrecy in their transactions, and Bovey made no objections after 1893. In conclusion the Puisne Judge expressed the opinion that the injunction should fail as the respondent had not shown any title in the Colony on which to sue.
to
THE HONGKONG WEEKLY PRESS AND
police went to the scene of the assault and had the injured men taken to the hospital. The Attorney-General pointed out that the accused had been in the lunatic asylum bat had been released into the custody of his friends at Canton. He escaped on the way up and had since been in charge of the junk. Since his arrest he had been under medical examination, and the medical officer was prepared to certify that he was sane.
Aconsed pleaded guilty, and was sentenced to twelve months' imprisonment,
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IN BANKRUPTCY JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR FRANCIS Piggott).
RECEIVING ORDER GRANTED.
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Re the Tong Tai firm, 192 Wing Lok Street, ex parte Lo King Chuen.
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Mr. C. F. Dixon from the office of Mr. John Hastings made application on behalf of the petitioning creditor for a receiving order. An interim receiving order had already been granted. The assets amounted to $9,000.
The Chief Justice-What are the liabilities? Mr. Dixon-I don't know, my Lord. The Chief Justice-I must have some idea of what the liabilities are.
{January 26, 1907.
carried and the subsequent bankruptcy pro ceedings would never have taken place. If the $20,000 was admitted the balance left would be very small indeed and the probability is that the whole estate would have been wound up and no. expense would have been incurred.
Mr. H. W. Looker, who appeared on behalf of Mr. Ho Tang, pointed out that his Lordship had no jurisdiction to order Mr. Ho Tung to pay costs except on a motion to which he was a party. He sketched the history of the proceed- ings and afterwards argued that the blame for that scheme of composition being rejected did not rest with Mr. Ho Tang but with the credit- ors who did not go to the Land Offlos and Parn that a prohibitory order had been filed.
Mr. Slade added that the scheme must be proceeded with and if necessary he would ask that the trustees should pay the costs.
His clients did not wish to create unnecessary trouble nor did he wish to go on with the second part of his motion which was a serious complaint against the administration of the estate that money had been squandered in keeping the furniture in the house in question.
After further discussion, the Chief Justice reserved his decision.
IN ORIGINAL JURISDICTION.
PIGGOTT).
Mr. Dixon-Perhaps the petitioning creditor Before the ChiRF JUSTICE (SIR FRANCIS knows.
The Chief Justic-Vory well, I will hear him.
the
Lo King Chuen, the petitioning creditor, said he had had a conversation with manager of the Tong Tai firm with reference to the amount of the assets aud the liabilities. The liabilities amounted to $20,000.
The receiving order was granted.
THE CHUNG,SHUN KOO BANKRUPTCY.
Another stage in the lengthy proceedings associated with the Chung Shun Koo bank ruptcy was reached when Mr. M. W. Slade, instructed by Mr. R. F. C. Master and Mr. d'Almada e Castro, asked for an order against Mr. Ho Taog for payment of all costs occasioned by his failure to prove property in this bankruptor-by his providg for more than he was entitled. He proved for the amount of his debt whereas in fact he had received in satisfaction of a portion of it property which he had taken in executiou.
The Chief Justice-I have decided all the questions of costs.
Mr. Slade The costs were nearly all
The Chief Justice-Some orders have been made or indicated.
The Chief Justice followed with a lengthy judgment. He reviewed the proceedings in the lower Court which were apparently based on the assumption that the assignment was a valid one. On it being challenged the respondent applied for leave to adduce further evidence to prove it. This was granted, the Prisne Judge dissenting, and the assignments were produced. The assignment of the business connected with the Swiss mark in 1901 was made and it included the business which had been created in London; the marks had been registered in London and were transferred Lo Lenba, which had the effect of transferring the Hong-ccasioned by his defrcl. kong
trade
him. The appellants argued the assignment showed that Mrs. Bovey was the assignee of the good-will, and not Leuba, but that did not meet with the Chief Justice's approval. His Lordship held that Registration in Hongkong conferred upon the person registering the exclusive use of the mark, but that the mark did not become absolute, being always open to disapproval. His Lordship dealt with the local Ordinance and the English law on the subject and pointed ont that two or more persons could hold the exclusive use of a mark-by registration or Common law. Both marks in the present case were old marks; and Bovey would have been registered despite the fact that the other party in Switzerland Was on the register-Leuba was entitled to Common law rights. In conclusion His Lordship held that Bovey's title was sound and dismissed the appeal with costs.
Monday, January 21st.
IN CRIMINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIB
FRANCIS PIGGOTT.)
ASSAULT.
Chun Kun was arraigned on charges of assaulting Wong Pak, Iu Pai, Ho Mu, and Lai Chut on the 29th November.
The Attorney-General (Mr. H. H. J. Gomperts) prosecuted. Hestated that defendant's junk and a water boat collided in the harbour on the day in question and foul language was exchanged. The accused landed on the Prays and attacked the water boat men with a knife After stabbing the four men defendant went to the Police Station and gave himself up and complained of having been assaulted. The
Mr. Looker-Noue bave been made. The Chief Justice-I think I had better get all the questions tabula ted.
Mr. Slade enumerated the grounds on which he based his application. The first was the motion in October for an order for the trustee to call a meeting; a scheme of composition was put for ward at that meeting. The second ground was that rent had been paid unnecessarily to keep the furniture in debtor's house instead of storing it in a godown. The third was the order to set aside a motion giving leave to amend, and the next was an application by Mr. Ho Tung to expunge a motion. Counsel sub- mitted that if Ho Tung had done as he ought to have done none of those costs would have been incurred.
The Chief Justice-You submit that Ho Tung should pay all costs ?
Mr. Slade-Yes, the whole of the costs of the bankruptcy with a fow. trifling exceptions. The position is this: Ho Tung at the date of the bankruptcy did not exercise his right as owner by virtue of the prohibitory order filed with regard to certain property which WAR apparently the property of the bankrupt. He permitted the Official Receiver to take posses- sion of this property and the Official Receiver and the trustee, and indeed all the creditors, believed that this property valued about $20,000 would be applied in satisfaction of the debts of the bankrupt. Ho Tang not only did not claim his rights but he proved for the whole amount of his debt without giving credit for the property he received in satisfaction and by means of that excessive proof defeats the scheme of composition proposed at the first meeting of creditors. If Ho Tung had proved the property that scheme would have been
CARDBOARD ILLUSTRATIONS,
The action by Lan Sia Wan, a furniture dealer of Des Voeur Road, against the North German Fire Insurance Company, in which the Hon. Mr. H. E. Pollock, R.C. appeared for the plaintiff, and Mr. M. W. Slade represented the defendants, was mentioned.
The Chief Justice remarked that both Mr.
Hough and Mr. Lammert had prepared diagram showing how much of the second and third floors of the building were gone. He thought the simplest plan would be to represent each floor by a piece of cardboard and let them show how much in their opinion had dis- appeared. Counsel agreed.
The hearing of the action, in which Lau Biu- wan proceeded against the North German Fire Insurance Co. to recover $50,000 on an insurance policy, concluded before the Chief Justice at the Supreme Court on Jan. 23rd. The jury's finding was for the plaintiff, and judgment was entered for the amount claimed and costs.
Thursday, January 24th.
IN ORIGINAL JERISDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHINI JUSTICE).
MAN SHUN WO v. B. I. 8, N. CO. This was ao action by the Man Shan Wo, merchants carrying on business at 227 Des Voeux Road West, against Messrs. Jardine, Matheson and Company, the local agents of the British India Steam Navigation Company for the recovery of $1,863, said to have been lost on a certain shipment of birds' nests. The air- cumstances of the case were rather singular. Biz cases of birds' nests were supposed to have been shipped from Singapore by the B.I. Putiala and consigned to the plaintiffs. When the cases arrived in Hongkong two were found to contain peanuts, which, plaintiffs alleged, meant a loss to them of the amount claimed. On the other band the defendants did not admit that the cases contained birds' nesta at the time of shipment, and contended that, the were re-shipped goods, which originally came from Batavia. One of the conditions of the bill of lading was that the weight, contents, and value of the unknown when shipped. The defendants were not to be responsible for the condition of re- shipped or re-exported goods. Messrs. M. W. Slade and H. G. Calthrop (instructed by Mr. G. K. Hall Brutton of Messrs. Brutton and Hett) represented the plaintiffs; and the Hon. Mr. H. É. Pollock, K.C., (instructed by Mr. G. Hastings, of Messrs Hastings and Hastings), appeared for defendants.
OLSOS
were
After the opening statement of counsel, the evidence taken on commission at Singapore was read and Chinese witnesses called on behalf of the plaintiff.
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