434
SUPREME COURT.
Monday, 17th May.
IN APPELLATE JURISDICTION.
[BEFORE THE FULL COURT.]
APPEAL FROM A JUDGMENT OF THE CHIEF JUSTICE.
This was the fifth day of the hearing of the appeal in which the Hip On Exchange and Loan Co., Ld, and the Hongkong and Manila Yuen Shing Exchange and Trading Co., Ld., were appellants, Li Po Yung being respondent. The Hon. Mr. H. E. Pollock, K. C., instructed by Mr. H. L. Dennys (of Messrs. Denuys and Bowley) appeared for the appellants, and Messrs. M. W. Slade and E. Potter, who were instructed by Mr. F. Paget Hett (of Messrs. Brutton and Hett) for the respondent.
In
THE HONGKONG WEEKLY PRESS AND
contract of service they were not bound to go. | They were advanced two months wages, but were required to return the money if they did not go.
The two men concerned in this case agreed to go and received $70 each. Neither went aboard, however, and only one went so far as to book his passage.
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Mr. Kong Sing thought the whole case could be disposed of if his Lordship read the guarantee under which Mr. Harris was suing. As a matter of fact, the persons concerned wure willing to go to the Philippines. They had already been to Swutow.
His Lordship-Why did'nt they go? Mr. Kong Sing-They were put on board. Mr. Harris said the men were told which ship to go on to proceed to the Philippines, but they did not go, and walked off with $70 apiece in their pockets.
His Lordship stated that subject to any evidence called by Mr. Kong Sing ho was pre- pared to find that the men were not willing to go.
One of the intending emigrants told the Court that he was ready and willing to proceed to tho Philippines if an agreement was made as promised. That agreement referred to the amount of wages, the hours of work and the kind of food supplied.
Mr. Kong Sing submitted that the plaintiff could not recover as against the guarantors with regard to this agreemant.
His Lordship-You've got to prove that it would be breaking the law for these men to go under contract.
Mr. Kong Sing-The evidence shows that the guarantors are not liable, because these men are willing to go now.
His Lordship reserved his decision.
Thursday, May 20th,
Mr. Slado said their Lordships were thoroughly familiar with the facts of the case, which had been dealt with fully by Mr. Potter; therefore he would plunge straight into the law. order to understand the law on this subject he submitted that it was useful to examine shortly the history of the law, and to see the exact scope of the old Common Law doctrine with regard to releases-or rather he would put it in wider language than "releases," and say the old Common Law doctrine with regard to the discharge of one of several joint debtors from his liability under his contract. He could show their Lordships by satisfactory authority that the Common Law rule was that where one of several joint contractors was discharged from his contract, that discharge operated to dis. charge all the joint contractors. In the case of an obligation under seal such as this obligation was-it was a covenant under a mortgage deed --there, were three known methods which were in point in this case of discharging the obli- gation imposed on the covenanters. The first was, release in its strict sense by deed; secondly, by defeasance; and thirdly, by accord and satisfaction. The first two must be in writing, Mr. M. W. Slade, who was instructed by Mr. but the last need not be, although it was moro F. X. d'Almada o Castro (of Messrs. Almada usually evidenced by writing. Accord and
and Smith) moved for leave to appeal in an satisfaction could arise between parties to a action in which the Po On Firm (appellants) contract in any form or way provided that there were defendants, and Chau Kwan Shian (res- was an agreement to accept something in satis-pondent) was plaintiff. Leave to appeal was faction of their obligatious under the contract. sought on the ground that the judgment deliver- In the case of the Hip On Insurance Co., to|ed by the Puisie Judge in the summary action split the words up, the accord was the agreement
was wrong in fact and in law. on which he relied, and the satisfaction. that was the consideration for it, was the withdrawa of the other action. In this case he submitted that the document on which his clients relied amounted to what would be regarded in law strictly as a defeasance, although it was also accord and satisfaction.
After further argument their Lordships reserved judgment.
Tuesday, May 18th.
IN CRIMINAL JURISDICTION.
BEFORE HIS HONOUR SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
THE MAXIMUM PENALTY.
John Henry Scarr, R.G.A.. was given the maximum penalty of two years imprisonment with hard labour for gross indecency.
IN SUMMARY JURISDICTION.
BEFORE MR. H. H. J. GOMPERTZ (PUISNE JUDGE.)
A CONTRACT QUESTION. F. Wandras proceeded against Tam Tze Leung and another to recover $140 due under two contracts in writing, both dated 24th December, whereby defendants undertook to repay to plaintiff, in a certain event which has happened, two sums of $70.
Mr. Reader Harris (of Messrs. Wilkinson and Grist) appeared for plaintiff and Mr. Otto Kong Sing for the defendants.
He
Mr. Harris told the Court that plaintiff was in the habit of engaging men in Hongkong for
the Philippines. phosphate works in engaged them here and told them what their wages would be, and as they did not sign any
IN APPELLATE JURISDICTION.
(BEFORE THE FULL COURT.)
APPLICATION FOR LEAVE TO APPEAL.
Mr. Slade said he made the application under section 34 of the Summary Jurisdiction Ordiu- ance, No. 4 of 1873. Substantially, the Puisne Judge's judgment was that he believed the plaintiff's story; therefore he gave judgment for him. This was a case which it was practically impossible to deal with in two separate ways because the questions of law which arose would depend upon the inferences of fact which were drawn from the ovidence which was
believed.
The Chief Justice-The section quoted applies to questions of fact or of law.
Mr. Slade suggested that as the Ordinance did not specifically provide for mixed questions of fact and law. it was within the jurisdiction of the Court to direct how this particular case should be tried.
The Puisne Judge thought it was really a question of fact; there might be a question of law arising out of the facts.
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[May 24, 1909. actually a partner in the shop; and the other, that he held himself out to be a partner. If he was merely holding himself out to be a partner, then the facts proved would make him per- sonally liable. That was a question of law.
The Puisne Judge-The manager represent- ed him as a partner.
Mr. Slade The manager has not prima facie authority to represent anybody as being a partner. Proceeding, Counsel submitted that on the construction of the Ordinance he could bring this question up on the Judge's notes, it being a mixed question of fact and law.
The Chief Justico-The fact that you appeal on facts does not preclude us from applying law to them.
The leave was granted, and the Court directed the appellants to serve the other side with the ordinary notice of motion for appeal.
Friday, May 21st.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR MR. H. H. J. GOMPERTZ (PUISNE JUDGE).
A REFEREE WANTED. In an action in which Mr. F. C. Barlow (of Messrs Goldring, Barlow and Morrell) appeared for the plaintiff, and Mr. Crowther Smith (of Messrs. d'Almada and Smith) for the defendant
Mr. Smith informed the Court that it would be necessary to refer the books to a referee. A persou had been suggested by the other side, but he could not agree to the appointment.
Mr. Barlow said the Court shroff had refused to accept the appointment; therefore he would ask for directions from his Lordship.
Mr. Smith-I cannot possibly accept my friend's interpreter.
Mr. Barlow The person I suggest is Mr. Li Hong Mi, the late Court interpreter.
His Lordship-Is he attached to any solici
Lors ?
Mr. Barlow He is with Messrs. Goldring, Barlow and Morrell, but I do not think that in a small matter like this his impartiality would bo impugned,
His Lordship-I could ask the Registrar- Would that suit all General to provide a man. parties?
Mr. Smith-I think it would. Will your Lordship send the books to the Registrar-
General ?
His Lordship-He might nominate a man, but might not care to have the books. Does the case turn on anything in the way of trade custom ?
Mr. Smith-No, my Lord.
His Lordship-Then any upright business man will do. I will apply to the Registrar- Goueral.
A MISSING BANK DRAFT.
The Puisne Judge delivered his reserved judgment in the action in which Man Lee Chan and Co. proceeded against the International Banking Corporation to recover $840 alleged to be due in respect of a bank draft.
Hon. Sir Henry Berkeley, K.C., instructed by Mr. Otto Kong Sing, represented the plain- tiffs, while the Hon. Mr. H. E. Pollock, K.C., instructed by Mr. C. D. Wilkinson (of Messrs. Wilkinson and Grist) appeared for the defen- dants.
His Lordship remarked that in this case he had taken time to deliver his judgment, and delivered a written one because, although the actual amount in dispute was not very large, this was a difficult case both in fact and in law, and it might be convenient to the parties to have the case as he found it in writing.
Mr. Slade took it that the finding of the Puisue Judge was that he believed in substance the story of the plaintiff. The story of the plaintiff was that he went to the defendant shop, where he saw a man who was pointed out by a witness not connected with the shop, as being the Dealing with the facts, His Lordship said the master of the shop; and that that man produced plaintiffs, who were merchants in the Colony, a chop, apparently from a drawer, and with it truding under the style of Man Lee Chan and The other salient fact Co, received by post some time in December chopped a guarantee. was that the chop which was put on that 1908, the first of exchange of a draft for $840, guarantee was not an impression of any of the payable on demand to their order. The draft chops which were seized at the commencement which was in the ordinary form, bearing the of the action. The seizure of the chops was date of November 14, 1908, was drawn in effected under the absconding debtor section in
Vancouver by the Bank of Hamilton of that the Code, so that there was every probability City, on the Hongkong branch of the Inter- of the chops seized being the genuine chops of national Banking Corporation. On December the shop. The position was that there was a 22, 1908, the draft was stolen, together with strange chop put on the guarantee by a person money and other articles from the plaintiffs' who was alleged by some outsider to be a part-premises. The plaintiffs suspected a partner in ner in the shop. There were two possible in their firm who absconded on that date, of the theft and they made a report to the police. On 'ferences to be drawn: one, that the man was