July 11, 1908.]
Harrised," and asked the jury to say, as Mrs. Betsy Prig said, "I don't believe there ever was no such persons'
P
The hearing was again adjourned.
IN SUMMARY JURISDICTION. BEFORE ME, H. H. J. GɔMPERTZ (ACTING PUSÍNH JUDGE).
CLAIM FOR MONEY PAID.
Astion was brought by Fang Cheuk ting against Kwan Fung to recover $265.50 money paid by plaintiff to defendant at the latter's request. Mr. Otto Kong Sing represented the plaintiffs, and Mr. Davidson, of Messrs. Hast- ings and Hastings, the defendant.
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Mr. Kong Sing informed the Court that plaintiff and defendant were partners together with two others, in a firm called the Hop Sing. In November, 1907, the other two partners of the firm sued the plaintiff and defendant in this action for the taking of partnership accounts. A receiver Was appointed, accounts were taken, and it was ultimately agreed that plaintiff and defendant were jointly indebted to the other two partners in the sum of $442.80. Besides that the plaintiff slaimed that he paid out a sum of $88.36 to oreditors of the Arm after the accounts were taken. He now claimed half of both the amounts mentioned.
After evidence was taken an order by consent was made for accounts, which are to be taken by the shroff.
Tuesday, 7th July,
IN ORIGINAL JURISDICTION. BEFORE THE CHIEF JUSTICE (ŠIR FRANCIS PIGGOTT),
A JURY ACTION, The action Leung Lai Wan and others v. Reuter, Brookelmann & Co., was resumed. The plaintiffs claimed damages from defendants for having illegally procured the Chinese authorities so issue a warrant for the arrest of plaintiffs and wrongful seizure of premises, Mr. M. W. Slade, instructed by Mr. C. F. Dixon of Messrs. Hastings nd Hastings, appeared for the plain- tiffa, defendants being represented by the HOD. Mr. H. E. Pollock, K.C., instructed by Mr. E. P. Lang of Messrs. Deacon, Looker and Deacon. The special jury was composed of Messrs. R. Shewan (foreman), Richard, Martin, T. F. Hough, J. A. Jupp, A. W. A. Becker, A. S. D. Cousland, and G. W. C. Pemberton.
account.
CHINA OVERLAND TRADE REPORT.
#1
Mr. Pollook opened the proceedings by draw. ing his Lordship's particular attention to the provisions of section 26 of the Evidence Ordin- ance No. 2 of 1889 with regard to the books of That section related to entries in books of account kept in the course of business, and he submitted that that could only refer to entries as to mere matters of account. In other words, sub-section 1 of section 26 could not possibly refer to an entry of a partnership agreement in a book. This provision was a rather special legal one in our Ordinance, and rather extended the provision as to banking accounts which his Lordship knew was in force in this Colony. He ventured to submit that entries referred to meant entries as to matters of account.
His Lordship-I am disposed to agree with you.
Mr. Pollock-I think your Lordship will see the important distinction ?
His Lordship-Yes.
in that partnership agreement with reference to
tong
names does not carry any weight, or have any sanction in this provision of the Ordinance. Your Lordship, I understand, puts | the next point in this way: assuming the jury to be in the defendants favour as to these three men, Li Lai-san and the other two, being part ners in the Chung Loong and Kwong Hing Cheong firms, would it not be possible to bring an action for damages against the other nine partners, or some of them ?
Mr. Pollock-Therefore any entries contained in that book under “tong names would not
fall under this provision.
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What I mean is this: Assuming this to be the His Lordship-That is one way of putting it. law; these three men being partners in the Chung Loong, their property could have been seized by the process which has been adopted by the German Consul and the Chinese Authorities other nine partners. Yet that would not justify the seizure of the
Mr. Pollock-I shall impress upon the jury that there is no satisfactory evidence before them about the others being partners. ceeding, Counsel again referred bis Lordship Pro- to the pleadings. It was alleged in paragraph 6 of the statement of claim that they made false representations, not with regard to the partners in the Kwong Hing Loong as a whole, but they made allegations to the effect that certain three plaintiffs were partners in the Chung Loong firms. With regard to the question of absconding and hiding, point fully, and showed that the letter of the Sir Henry Berkeley had dealt with that German Consul complained of did not bear the interpretation put upon it. If the jury came to the conclusion that the three persons said to be partners in the Chung Boong firm were partners, then that was an answer to the alle- gation with regard to libel. His Lordship would see, following on other consecutive paragraphs of the pleadings, that all the acts which subsequently occurred were stated as having been the consequence of the letter of February 21st, 1907, written by the German Consul.
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Mr. Slade-With regard to the actual agree ment, I produced the writer thereof, and he proved he wr. to the whole of it himself, and all the "tong names. It obtains no greater validity by reason of being written in a book of account, but with regard to the rest of the book which is strictly a book of account referring to payments year by year and interest of various partners taken from the cash books, some 70 of which were produced, that falls strictly within the provision.
6 are that three men are partners in the Chung His Lordship-The allegations in paragraph Loong; that they absconded, and that they were in hiding. It further stated that the Chung Loong were indebted in the sum of $53,000 and that the plaintiffs and their said firm, the Kwong Hing Cheong, were liable to pay the said sum of $53,000.
Mr. Pollock-The allegation is that these it does not extend to implie.te anybody else at men were partners in the Chung Loong firm; all. The seizure complained of was the seizure by the l'an Ya Magistrate, the magistrate who has jurisdiction in Houam, We would submit that that seizure was a judicial act, the act of having jurisdiction, process issuing from the Yamen magistrate
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the
be warranted upon the evidence, if properly directed as to the issues and as to the law, în finding a verdict for the plaintiff. (2) Or in default of the above order being made, that the verdict which was obtained on the trial of this action in favour of the respondent (the plaintiff) may be set aside, and that a new trial may be had between the parties on the following grounds :- (s) That his Honour the Chief Justice misdirect- ed the jury on the following points, namely
(2) As to the principle of the case cited by the down in the case of Farquharson v King. (1) as to the principle of law which was laid
Counsel for the "defendants, namely, The British Mutual Banking Co. v. Charnwood Forest Railway Co., 18 Q.B.D., 714 only applying to actions brought against members for the false representations of their agents. Willes in Barwick v. the English Joint Stook (3) As to the principle laid down by Mr. Justice Bank, L.R. 2 Ex., in that be omitted to point page 265 The general rule is that the master out to the jury that Mr. Justice Willes said at is answerable for every such wrong of a servant or agent as course of his service, and for the master's
is committet in
benefit." clerk in
(4) As to the case of a receiving half of depositors being analagous to the bank receiving money on be present case. (5) When he directed the jury as follows
business for a long period the business has And now, gentlemen, this I conceive to be the law that, if in the course of been conducted in a certain way, and if a given transaction which comes before you has been conducted in this way, then, if that business has been conducted fraudulently, the plaintiff is That the Chief Justice misdirected
entitled to
verdict. (6) the jury as to the
iff's witness Lan Chung-you with regard evidence of the plain. to the slip, exhibit 3. (7) That the Chief Justice misdirected the jury when he directed them as follows:
accordance with the course of dealing and to pdt to you is whether you consider that in "The question which I wish
whether he was in fact defrauded in that way, whether he was defrauded in the way an ordinary man would be defrauded. The way i have drafted out is this: if you think that the plaintiff went outside the ordinary course of then you must flad for the defendants, but if dealing and pressed the compradore to such,
that the compradore pretended to do what he you think that he did what he had always done; had always done in such a way as not to excite the plaintiff's suspicions; that there was in the course of the dealing no knowledge conveyed to him that other things were necessary which the compradore did not do but pretended to do, as for example the simple one of seeking the (8) In directing the jury that the manager, then you must find for the plaintif" liability was affected by a consideration of the question as to whether the bank had, or had not taken adequate precautions to protect the (9) In putting the following question to the customer against a fraud by the comprodare, jarg "Did the bank put the compradora in
to receive money, and, if such a position that he could pretend to the plaintiff that he hid the necessary authority plaintiff, believing that he had that authority,
50, did
not offer the money to the_comprador in that belief." (b) That His Honour the Chief Justice was wrong in refusing to leave to the jury the following questions which were submitted by defendants' counsel, namely: (1) Was the defendants' compradore authorised by the defendants to enter into exchange con- tracts without first getting the rate of exchange fired by the defendants' manager? (2) Did the defendants' compradore in fact get the rate of exchange fixed by the defendants' manager exchange transactions in question with the before entering or purporting to enter into the plaintiff's agent, Lau Chung-yen? (8) Did the plaintiff's agent Lau Chang-yen believa enter into exchange contracts without first that the defendants' compradore had power to getting the rate of exchange fixed by the de- fondets manager? (4) Was the defendants' compradore, in entering or purporting to enter the exchange transactions in question, acting for the benefit of the defendants or for his (the ants compradore receive the sum of $40,961.30 compradore's) own benefit. (5) Did the defund. " from the plaintiff's agent Lau Chung-yen FI
action, wrongfully and maliciously setting a His Lordship-It is a well-known cause of foreign law in motion, and I do not attribute any great difference in proceedings in French courts in Canton. It has been laid down in two courts in Saigon to the proceedings of Chinese cases that an action will lie for wrongfully and maliciously, and without reasonable and pro- bable cause, getting a foreign process in mot on. a malicious prosecution rests upon the plaintiff. Mr. Pollock-Obviously the onus of proof in He has to show that it was unreasonable to take any proceedings at all.
Father evidence was called, and the case adjourned.
Wednesday, July 8th.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.
CHIEF JUSTICE'S ALLEGED MISDIRECTION, the Chief Justice and Mr. H. H. J. Gompertz, An action was opened before their Honours Acting Puisné Judge in which the Rasso- Chinese Bank appealed against the decision of the Chief Justice in the case of Li Yan-sam v. the said bank. Hoo, Mr. H. E. Pollock, K.C., instructed by Mr. H. J. Gedge (of Messrs. Johnson, Stokes and Master) appeared for the appellants, and Mr. M. W. Slade, instructed by Mr. C. E. H. Beavis (of Messrs. Wilkinson and Grist) represented the respondent.
Mr. Pollook-The link is missing. The man called to support the partnership agreement (1) that judgment may be entered for the Mr. Pollock read the notice of motion asking says he wrote it out himself, therefore anything" defendants on the ground that a jary would not
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bank's
the
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