Angust 17, 1908.)
defendants, and in the matter of a claim by the Cheong Shing Bank and by Wong Tong to be entitled to the sum of $11,424.94 paid into Court. Mr. M. W. Slade, instructed by Mr. C. E. H. Beavis (of Messrs. Wilkinson and Grist) appear ed for Li Po Kam and Li Po Yung; Hon. Mr. H.E. Pollock, K.C. instructed by Mr. R. F. C. Master (of Messrs. Johnson, Stokes and Master) represented the Cheong Shing Bank; and Bir Henry Berkeley, K.C., instructed by Mr. A. Holborow (of Messrs. Deacon, Looker and Deacon) a peared on behalf of Wong Tong.
It was
CHINA OVERLAND TRADE REPORT. been made to act upon it and recover the profits, from the Chop Sing until they were attached by Li Po Nam and Li Po Yang.
There only remains the expression used by Dai Sing in his will on which so such stress was laid, said that there was an admission that Lai Kai Shing had a quarter of the Li Hing. The almost that can be said of this is that the Lai Kai Shing's share, which had been allowed to remain in the business as above explained, amounted to a quarter, bat, as is also explained, this is not the time when, nor are these the proceedings in which such a contention can be raised.
Tuesday, August 11tb.
IN SUMMARY JURISDICTION,
BEFORE MR. H. H. J. GOMPERTZ (ACTING PUIBNE JUDG®).
In the action brought by the Tung Tak Loong Firm against the Hip On Company the claim was for $200 for breach of contract. Mr. O. D. Thomson appeared for the plaintiff and Mr. 8. Dickson, from the office of Mr. R. A. Harding, appeared for the defendants.
Mr. Dickson explained that the defendants' agent called on plaintiffs and showed them a sample tin of biscuits on the strength of which plaintiff ordered eight cases at $265 a case and a contract was signed. Plaintiffs took delivery of four of the cases a few days later and kept them for a few days when they sold them to a purchaser for $36 a case.
The pur cbaser, however, returned them saying they were not good, and plaintiffs examined them and found they were as stated,
His Lordship, on being handed a tin for inspection ?They don't look very inviting.
Mr. Thomson continued that Captain Douglas said the other bores were all like that.
When plaintiffs complained about it defendants offered to refund $1.20 on each box but that offer could not be entertained,
Mr. Dickson said the defence was that the plaintiffs bought the biscuits as old stock, pay- ing only $26 per box instead of $45 which was the average price.
His Lordship said this case was a by-product of the tangled skein in which it pleased the late Mr. Li Sing to leave his affairs. Then he mentioned the many claimants for the sum and the many litigants who were connected with the 0850. Continuing, His Lordship said-This question is decided by the Partnership Ordin. ance alone; and by article 35 it is provided that, subject to any agreement between partners, every partnership is dissolvel as regards all the partners by the death of any partner. The main question involved in this case being what happened to the Lai Hing firm of which, so far as this case is concerned, the trustees Lai Ling and Lai Kai Chuen were the sole partners when Lai Kai Chuen died, the answer must be the partnership was dissolved unless the application of Article 35 can be avoided. There was no agreement between the partners on the subject, but it was ingeniously argued that this notice in its application to Chinese partnerships must be read subject to the Chinese customary law of partnership, and that in the law an implied agreement will be found that partnerships continue in spite of the death of one partner, the legal representa. tives continuing in the place of the deceased partner. If this were an English statute in. troduced into the Colony at the date of the Charter and to be applied in so far as local circumstances permit, there would be much force in the argument assuming the Chinese custom to be as alleged. But this is ao Ordinance pasted in 1897 by the local legisla. ture, and I can only bold, there being no reference from end to end to Chinese customs, that it was the deliberate intention to ignore the Chinese onstoms of partnership. Whether Kin was wise or unwise it is not for m› to say,
but I must point ont to the Government the extreme danger of reproducing English legisla. tion bodily into the Colonial Statute Book with- out at least considering the question how it may affect the custom of the large body of Chinese who are legislated for. It is & question on which I have had oonsi lerable experience, and in my pinion whenever the Chinese customs are likely to be interfered with by law intro. duced as this was, bodily from Imperial legislation, there ought to be 80 express statement whether their customs are affected
not affected by the
law. As it is, however, if there is such a cast m, and al. though it was not proved, I may go as far as saying that I am inclined to think it is as suggested, I am bound to hold that it is overridden by the express provision of this Partnership Ordinance. Article 44 provides that where any member of a firm has died and the surviving partners carry on the business of a firm with its capital or assets without any final settlement of accounts as between the firm and the outgoing partners estate, then in the absence of acy agreement to the contrary, the deceased partner's estate is entitled at the option of his representatives to such share of the profits as the Court may find attributable to the use of his share of partnership assete, or to interest at eight per cent, on the amount of his share of the partner- ship assets. These words are clear and apply exactly to this CASP. Now what Wong Tong, as alleged assignee of Lai Kai Shing's share, is doing is to assert a claim to certain specified property which has passed to Lai Sing as sole owner of the Lai Hing, subject to the rights of Lai Ki Shing 88 explained. This he cannot do, and there- fore his claim fails. The contention of the Cheung Sheng bank, which is based on that ground, also fails. Many other criticisms might be passed on the assignment, but it is sufficient to say that it is fearful and wonderful document both in fact and in law, and that it is at least singular that as it was made so long ago as November 190% no attempt seems to have
or
Judgment was entered for plaintiffs for $85.66 and costs.
Wednesday, August 12th.
IN SUMMARY JURISDICTION.
BEFORE MR. H. H. J. GOMPERTZ
(ACTING PUISNE JUDGE).
A VERY GOOD POINT.
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The Yin Kung Lam Sang Kee brought action against Kam Taun Hing to recover $182.55, being amount due for meals supplied the defendant and his guests.
Mr. E. J. Grist of Messrs. Wilkinson and Grist) appeared for plaintiff, and Mr. R. Harding for the defendant.
Wong Shan Shan said he was the managing partner of the Yin Kang Lam Sang Kee. Messrs. Wilkinson and Grist wrote the defendant a letter demanding pa:ment at his request, and in reply to that letter the defendant wrote witness stating that he could not understand why he had acted in such a way, seeing that they had had dealings
for go many years. Money was short, hence his delay in paying. He begged the gentlemen of the restauraut to give consideration to their friendship and grant him an extension of time,
117
action. If they want to they mast bring it in the individual names of the partners.
Mr. Grist-They still rent a shop and keep their books there. The business is carried on under the meaning of this Act until it is actually closed.
M. Harding (to witness)-Were not all the fittings and furniture sold from the premises in which the busi,ess was carried on ?-Yee,
As a matter of fact you are not the tenant ?— No.
Mr Harding-I submit that is sufficient. He said they had sold the furniture and were not the tenants.
His Lordship-They may have an office so me where else.”
Mr Haring-Your Lordship will notice that the plaintiffs give no address in the writ.
Mr Grist (re-examining)-Where are your premises? No. 11, Gough Street; family house!
In cross-examination witness stated that there were 18 partners in the plaintiff firm, which carried on business at Connaught Road.
-
And are the account books of the plaintiff firm in this family house ?-Yee.
Are there many outstaning debts ?-Over $2000!
Are you still collecting that money as manager of the business? - Yes.
The final account of the partnership has not yet been made out P-No.
His Lordship-Carrying on business withiu the jurisdiction is pat by way of opposition to carrying on outside the jurisdiction.
Mr Harding-That is perfectly true, but it is clearly laid down "unless as a place of busi- ness held in the name of the firm."
Mr Grist said the point had ben quite sprung on him.
His Lordship-I won't decide the matter off-hind. It is a very good point and I will reserve it for consideration until Friday.
As a matter of fact you don't carry оп business at all now; this restaurant you are saing in the name of has been closed for several months?--It closed at the end of the last Chinese year.
And now you are endeavouring to collect outstanding accounts ?—Yes,
NON-SUITED,
Chang Tsin sad the Ye, Shing tailor shop to recover the sum of $29.96, bilanc) of w ages due.
Plaintiff told the Court that he had wo kad for the defendant for a period of two mon the, beginning on May 13th and ending on July 12th. Then he went home to the country, but returned on July 25th for his wages. The defelaut refused to pay, ad would not re- engage him. He had drawn $10,24. His wages were $20 a month, and he claimed the bilanoë.
Mr. Harding-That being the case, I submit I am entitled to judgment under section 483 of the Code, because the plaintiffs are not ca rying on business. The section states that any two or more persons claiming, and carrying on business within the jurisdiction, may sue or be sued. In this case the plaintifs are not carrying on business, therefore they cannot bring this
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The master of the defen lant firm said the plaintiff worked for him from 23rd May to 23rd June, Daring that time he gave credit for goods, and when witue-s told him to collect the accounts he ran away. His wages were $10 a month, and he had received $11.39.
His Lordship said the case was not proved, and non-suited the plaintiff.
Thursday, August 13th.
IN SUMMARY JURISDICTION.
BEFORE MR. H. H. J. GOMPERTZ (ÁcгING POISNE JUDGR).
SCHOLAR AND COMPRADORE. Aption was brought by ip Kee against Wong Hok Lau, second compra lora of the 8,5
Hellas," to recover the sum of $184, the equivalent of $200 in Chinese subsidiary coin for money lent.
•
Mr. E. J. Grist (of Messrs. Wilkinson and Grist) appeared for plaintiff, and Mr. R. Hadding for the defendant.
Plaintiff said he advanced the defendant $200 in Chinese bank notes, for which he received an acknowledgement. L'his amount was equal to $1 in ongkong currency.
In cross-examination, defendant said he resided at the French College, Canton.
Why did you call yourself a trader in the writ ?—I did not know the customs down here.
Do you speak French ?—Yes.
I put it to you that you were not living at Canton at all; you were living in Honam ?-I
·}
little; enough
have lived in Honam.
You've lived there most of your time went there when I was very small.
Have you any property - for my education at the College.
What is it?-Money. How much have you got P-$300 odd. How much interest do you get on it ?-Four percent.
Per annum ?-No, per month..