November 11, 1907.]
After hearing further evidence his Lordship found the plaintiff was dismissed, and thought that the defendant was justified in dismissing her. Judgment would be for the defendant with costs.
CAPTAIN'S SUIT FOR WAGES. Captain J. E. Watson sued Messrs. A. C. McMillan and J. M. Donaldson Aitken to re- cover $1000, being three months' wages at $300 and $100 for board and lodging.
Mr. E. J. Grist appeared for the plaintiff, and Mr. A. Holborow (of Messrs. Deacon, Looker and Deacon) represented Mr. McMil lan. The second defendant was not served. Mr. Grist read the statements of claim and defence. The former set out that plaintiff was a master mariner and it February the defen- dants, who were mining engineers, engaged him as master mariner at a salary of £30 per month, commencing from March 3rd. Defendants
also undertook to provide board and lodging. In the statement of defence Mr. McMillan denied liability. He did not engage plaintiff and was ander no liability to provide him with board and lodgings.
Proceeding Mr. Grist said it appeared that the defendants were interested in coal concession in Borneo, and tried to flost a company in Hongkong to work it. They required a master to take charge of a tug boat and go down to this place.
Plaintiff said he was at present employed in the Dook Company, and was some time ago approached by Mr. McMillan and offered a berth in Borneo as master and pilot. On March 3rd he came to an agreement with both defendants to go to Borneo st a salary of £30 per month and a house. Plaintiff then engaged a Chinese engineer and spent some time inspecting launches for defendants. Some time later plaintiff was offered a berth by the Tug and Lighter Company at Tientsin, but could not accept on account of his agreement. In May he was told that the company had failed and Mr. Aitken offered him $300 in settlement, which plaintiff refused.
A letter was put in, signed by Mr. A. C. MoMillan as Attorney for Mr. Aitken, and again in his own capacity. This letter was an agreement to sell one-third of the concession for $4,000,
Cross-examined-You were out of work when you met Mr. MoMillan ?—Yes.
Did you ask him to use his influence with Sir Paul Chater to get you a job?--No, I don't need to. His influence with Sir Paul Chater
would be very small compared with my own. have done some good jobs for Sir Paul Chater.
I
Did not you ask Mr. McMillan to try and get you work ?—No, I did not know this thing was on then, and did not see how he could use his influence to get me a job.
When you saw Mr. Aitken you knew that until the Company was formed you could do nothing -It was to be such a short interval, and I started right away to look at launches.
Did you not think it necessary to have any. thing in writing ?-They offered it to me. said 'Well, never mind.' I have never had a written agreement in my life; generally my name goes down on the ship's articles-that is good enough for me.
CHINA OVERLAND TRADE REPORT.
307
Mr. H. A. Watson, an engineer, stated that | examination bad virtually concluded. Owing Mr. McMillan met bimself and Captain to the debtor going away, to the vacation, and to Watson in Queen's Road and Mr. MoMillan the public examination not being concluded it said he had engaged Captain Watson to go took three and a half months to get a trustee down to Borneo,
appointed, and owing to circumstances ovēr which they had no control bis clients were therefore kept out of this property until the present moment. But it had been laid down that a court ought to do what was right and jast irrespective of the law.
Mr. Holborow submitted that on the affidavit put in by McMillan it was clear that plaintiff had not been definitely engaged. What hap- pened, he suggested, was that Captain Watson was hard-up and asked Mr. McMillan to try to find him employment and Mr. McMillan took compassion on him, as it were, and knowing that a man would be required if the company was formed, he told him he would engage him then.
His Lordship gave judgment for plaintiff with costs.
Thursday, November 7th.
IN BANKRUPTCY.
BEFORE MR. A. G. WISE (ACTING CHIEF JUSTICE).
APPLICATIONS TO DISCLAIM, Re Au Ka-po.
His Lordship-Quite so. Is there any money in Court?
Mr. Komp-There is a little available for a dividend.
three months rent
His Lordship-Will
swamp it?
Mr. Kemp-Very nearly.
Mr. Looker-We ask for only two months rent. We, as lessors, come, to a certain extent, before the creditors.
His Lordship-Have you ever tried to let the property?
Mr. Looker-We have been making inquiries, but are unable to conclude anything definitely. Because there were causes over which we had no control we ought not to be put to the loss of two months' rent. As a matter of fact the
H. Kemp, stated that the two applications before bankrupt is still liable in respect of the case,
and we can take no steps whatever.
It is only equitable that the disclaimer should now be given on some terms as to rent.
The Official Receiver, Mr. J.
the Court were for leave to disclaim.
One was consented to, but in the other Mr. H. W.
Messrs Deacon) who appeared for the lessors, Messrs. Looker (of
Deacon, Looker and David Sassoon & Co., objected to disclaiming except on terms to which the Official Receiver could not agree.
His Lordship granted the application with respect to the mortgage of the Canton
Insurance Co.
The Official Receiver then explained the facts in reference to the second application. The petition, be said, was filed on July 22nd, and on July 23rd the goods on the premises of the Baltimore Hotel were seized by the holder of
the bill of sale. On the 26th of the 8ame
month an interim receiving order was made, and on the 29th, Mr. Kemp claimed the goods aa against the holder of the bill of sale. On the 3th the landlord threatsred to distrain, and the Official Receiver made the usual agreement to hold whatever goods would come to him as against rent to save the expense of distraint. He was not able to get a receiving order antil August 27th, and adjudication was not made could not order a sale, but he arranged with the until October 21st. Not being the trustee be holder of the bill of sale. The arrangement was that the money should be held by Mr. Kemp for either of the two parties found to be entitled to it. As the rent would have to be paid they Deacon, Looker and Deacon for the lessors, and also agreed that it should be paid te Messrs.
three months rent up to the end of august was paid. Messrs. Deacon, Locker aud Deacon knew by September 20th that it was his intention to disclaim, because, immediately he got adjudica. tion he issued a summons which was served on
was not
rent?
His Lordship-You couldn't prove for that
Mr. Looker-Yes, We CBD. The rent is 840 a month; taxes for the quarter come to 315 our security is 82000, and the lease has got another year to run. We must unavoidably suffer a large loss in respect of the lense.
His Lordship- You can let the place again!
Mr. Looker-It is difficult to find a tenant. We may not be able to let it again for the same
rept.
something, but the Court has got to not with His Lordship-1 think you are entitled to
regard to the justice of the case of all parties. the bankrupt has absconded, but why should be Mr. Kemp- The landlord may suffer because
get an advantage over the other oreditors? should have been obtained sometime ago.
Mr. Looker-The point is that the order
them. The points the Official Receiver wished Ibis Lordship to notice were that he took the
before proceeding he earliest opportunity of disclaiming and that in posses- sion, either as official receiver or trustee. Mr. Looker contented that the trustee only Why did you not ask for your salary at the ought to be allowed to disclaim on the terms of end of the month ?--I had enough to go on with.paying them rent to date since the formal notice You were to be paid monthly ?-I expected to disclaim. He referred his Lordship to section my money as soon as the Company was formed
Not before P-No.
48 of the Bankruptcy Ordinance, subsection 3, and stated that the object of that was for the Court to be satisfied that in the disclaiming of 8 lease no injustice was done to any person. The Court should see that all equitable rights were preserved whether they belonged to the landlord or third parties. He did not suggest for & moment
Mr. F. D. Barretto, a partner in the firm of Barretto and Co., said he knew both defendants, who had negotiated with him for the sale of a coal concession in Borneo, which was in the name of Mr. Aitken, but both said they were interested in it. Mr. McMillan mentioned more than once that a Captain Watson had been engaged to go down to Borneo,
Mr.Grist At what salary?--Ithink he said £30, Mr. Holborow-Was the company formed?— No.
Proceedings were taken by you?- No, by Chung Chun chi.
He was a party to the same agreement as you were with Mr. Aitken 7-Yes.
All the correspondence was carried on with
Mr. Aitken ?—Yes.
Can you swear that Mr. McMillan said he was a partner ?—Yes. He said the partnership agreement was in Deacon, Looker and Deacon's office.
benefit to the trustee in the occupation, but that there had been any
owing to the course the bankruptcy had taken the lessor had been kept out of the premises a much longer time than usual, and he could not leave to disclaim. His Lordship would see that regain his possession until the trustee got
the petition was filed on July 22nd, and three months had since elapsed. So far as bankruptcy procedure went there was no reason why the trustee should not have been appointed and after the receiving order was granted. Having application made to disclaim within six weeks, no control over the bankruptcy proceedings they could
take steps to property for
not
let the six weeks after the public
Mr. Kemp-A receiving order was applied for in the debtor's absence, and your Lordship refused it.
His Lordship intimated that he would give his decision on Thursday. Meantime the
lessors could go on looking for another tenant.
ADJUDICATION GRANTED.
Mr. J. H. Gardiner (of Messrs. Brutton and
Hett) applied for the adjudication of the Tang
On firm. He understood a warrant was issued for the arrest of the managing partner of the debtor firm, but he did not think that that man had been found.
His Lordship (to the Official Receiver)—Is all in order?
Mr. Kemp-It does not much matter whether adjudication is granted or not: There are no more assets and the partner cannot be found.
His Lordship granted the application.
IN SUMMARY JURISDICTION.
BEFORE MR. H. H. J. GOMPERTZ (ACTING 1018NE JUDGE).
WAS THE CONTRACT PAID FOR? Action was brought by Li Sin against Tsang Plaintiff was represented by Mr. F. X. d'Almada Kwong-leung to recover the sum of $650.
e Castro (of Messrs. Almada and S ith), and Mr. Otto Kong sing appeared for the defendant.
Mr. Almada stated that the claim was for work done on a seawall at the Hunghom Dooks. The other side did not dispute the amount of the claim, nor that the work was done, but said it had been paid for.
His Lordship-The whole sum? Mr. Kong Sing-Yes, my Lord. Everything. Plaintiff was called and said the defendant
engaged him to do masonry work on the seawall at an agreed price of $950, of which $300 only had been paid.
Cross-examined--He knew a man named Ng the seawall. Witness was introduced to him by Ia-ting, who was the principal contractor for the defendant, and agreed to do certain work for $1000, and pay a commission of $50 to the des
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