July 19, 1909.]
SUPREME COURT.
Friday, 9th June.
IN APPELLATE JURISDICTION
BEFORE THE FULL COURT.
A DEFECTIVE CLAIM.
Sir Henry Berkeley, K. C., instructed by Vr. Dennys and Mr. Atkinson, applied for leave to, appeal to the Privy Council in the actions by Hip On Insurance Exchange and Loan Com. pany, Ltd., and the Hongkong and Manila Yuen Shing Exchange and Trading Co., Ltd. Mr. Slade and Mr. Potter, instructed by Mr. E. P. Hett, appeared for the respondents.
Sir Henry Berkeley formally applied on behalf of the Hip On Company against the decision of the Full Court as the sum involved was over £500.
Mr. Slade objected on the ground that the petition was faulty in two material particulars.
Sir Henry Berkeley said these could he umended.
Mr. Slade remarked that they had not been served with copies of the petition and actions had been dismissed for that reason before.
Sir Henry Berkeley expressed regret that copies had not been furnished.
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The Chief Justice then pointed out that applicants' title was not good. A name was inserted without designation.
Sir Henry Berkeley-We shall be happy to receive your instructions on that matter - (laughter).
Sir Henry Berkeley then indicated certain amendments which he proposed, to which the Chief Justice replied that he expressed no opinion.
Mr. Slade remarked that a curious position arose-that the appellants were appealing on a question which had not been determined by the Full Court.
Sir Henry erkeley disagreed with this view, Mr. Slade As the petition is framed it is so hopelessly defective it cannot stand..
The Chief Justice indicated that the petition could be amended and served by midday, and if there was no objection to it it would be taken in chambers.
Other defects were referred to and the Chief
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CHINA OVERLAND TRADE REPORT.
Monday, 12th July.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.
LEAVE TO APPEAL TO THE PRIVY COUNCIL,
In the action between the Imperial Bank of China and Leung Shui Kong, Mr. C. G. Alabaster, who was instructed by Mr. H. J. Gedge (of Messrs. Johnson, Stokes and Master), moved on behalf of the plaintiffs (appellants) for leave to appeal to the King-in-Council. Messrs. M. W. Slade and Eldon Potter, instructed by Mr. F. P. Hett (of Messrs. Brutton and Hett) appeared for the respondents. The motion was allowed.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
CLAIM ON A CONTRACT OF INSURANCE.
The action brought by the Kai Tai firm against the International Lloyd Insurance Co. of Berlin to recover $5,500 and interest for loss under a contract of insurance on 2 cargo of beetle nut shipped by the s.s. Sun On on July 27th. 1908. at Hongkong for delivery at Samshui and Wuchow, was continued
Hon. Sir Henry Berkeley, K.C., instructed by Mr. Oto Kong Sing, appeared for the plaintiffs, while defendants were represented by Messrs. M. W. Slade and J. W. Orr, instructed by Mr. H. G. C. Bailey (of Messre. Johnson, Stokes and Master).
Sir Henry Berkeley, in opening, said is Lordship would see from the pleadings what the issue was. His clients alleged, and would prove, that they put in an application on the 27th of last July for an insurance for $5,500 on certain goods to be shipped by the s.s. Sun Qu. That application was taken from the plaintiffs by a person with whom they had dealt for many years as the agent of the defendants. Tho application was hau ed in to Mr. Lau King Hing sometime after three o'clock on the after- noon of the 27th July, was received by him, and was sent to the office of Messrs. Sander, Wieler and Co.. where, he would prove, it was received somewhere about four o'clock in the afternoon. The application was made on a form taken from a counterfoil book which had been supplied to
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dants that they did not issue the policy the same afternoon. The ples now put forward ought not to be allowed to prevail, because he would prove that a policy was actually made out by a clerk in the office on July 28th. The only thing necessary after that was that it should be signed, and the manager refused to sign it because the ship had sunk. He thought the whole question was one of intention, and for- tunately for the plaintiffs they could prove the fact that only a few days before, on the 13th uly, they had insured in the Kwong Tai in an exactly similar way.
Evidence WAS called and the hearing adjourned.
Tuesday, 13th July.
Mr. A. W. A. Becker, the local manager of Messrs. Sander, Wieler and Co., in cross- examination, said he had never made any arrangements personally with the Kai Tai firm with respect to insurances. All arrangements for policies came through Lau King Hing. The Kai Tai firm did not do a large business with his firm, but they had done business for about four years.
Do you suggest that when the Kai Tai put their goods on the Sun On: they believed the vessel was going to sink at her moorings ?—I don't know.
His Lordship-There is no suggestion. Sir Henry Berkeley-The whole suggestion is that there is an attempted fraud on the defendant firm.
His Lordship-Not by the plaintiffs.
Sir Henry Berkeley -Very well, my Lord. Now, Mr. Becker, I am going to put this to you, and I don't mean it in any way offensive. I suggest to you that if the Sun On had not sunk but sailed on that voyage, no objection would have been made to the policy, if the premium had been paid in due course?—If there had been no typhoon signals up on the 27th I certainly would have accepted the risk.
I put it to you as man to man that if the Sun On had not sunk you would have signed the policy-No. On the morning of the 28th we distinctly refused to sign, not knowing the steamer had sunk.
I suggest that since the 1906 typhoon you were instructed not to receive insurances while the typhoon signals were flying --I gave those general instructions.
Justice said leave would be granted to appeal; the plaintiffs by the agent, and the plaintiffs | refused an application sent in by the Kai Tai
subject to there being no objectious:
IN SUMMARY JU ISDICTION.
BEFORE HIS HONOUR VR. H. H. J. GUMPETZ (PUISNE JUDGE.)
A DOG CASE.
had used this book on several previous occasious when insuring with the defendant company. At the time this application was made to Mr. Lau King Hing he was in the sole employ of the defendant company. Plaintiffs had insured with the defendants on previous occasious, one insurance being effected on July 13th, when similar application was made for the
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insurance of goods by the steamer Kwong Tai, A. W. Llott, chief timekeeper at Shatin of the insurance on that occasion being to the the Kowloon Canton-Railway, claimed from value of $1,000. During the typhoon which Constable Grant $225 damages for injuring burst over the Colony on July 28th, the plaintiff's dog. Mr. Holborow appeared for the Sun On sank at her moorings and the plaintiff and Mr. Goldring for the defendant. goods were lost. On the following day the Mr. Holborow, in opening, suggested that broker applied at the office of Messrs. the motive in the case was malice on the part of Sauder, Wieler and Co. for the policy of in- defendant. When plaintiff wrote to the defend-surance, but they refused to issue one, stating ant saying he had been informed that defendant that the application had not been accepted. No had shot his dog, defendant wrote a curt reply premium had been paid by the plaintiffs, because saying "I did shoot your dog. You are it was the custom between the parties to settle correctly informed.”
up at the end of the year. Everything had A Chinese cook in the employ of plaintiff been done in this case as it had been done stated that his master's four dogs ran out on in the Kong Tai case. It was stated in June 8th and barked at the defendant's dogs the pleadings that Do acceptance of 80 which were following him. Plaintiff's dogs did application was made on the part of the not leave the compound but defendant pulled company unless the application was signed by out a revolver and fired at one of plaintiff's the manager, but the defendants could not dogs. His first three shots missed but the produce any evidence that any application fourth hit the dog on the thigh.
was ever signed by the manager; the only thing ever signed by the manager was the policy. Plaintiffs were relying upon the accep. tauce of the application by the broker, who had power to accept. The risk was undertaken when Mr. Lan accepted the application, sent it into the office, and it was allowed to remain there. Counsel submitted that if the Sun On had sailed away to Canton, and there had been no typhoon, the defendants would have given his clients the signed policy next morning. Therefore they
His Lordship was informed that the dog was only injured.
Mr. Holborow-The value of the dog is not an element in this case
His Lordship-The value of the dog is one of the elements.
Mr. Holborow-The value of the dog is not, my lord. The element is the value of the dog to my client.
His Lordship-I did not say it was the
element. But it is an element.
The case was adjourned until Monday, his Lordship expressing the hope that it might be
ettled.
were not entitled in the circumstances of this
case to escape liability, because everything was done by the plaintiffs that had to be done,
and it was a matter of convenience to the defen.
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I put it to you as a fact that you never have
firm after having kept it a night in the office →→→I don't remember ever having done so.
Do you make any suggestion of fraud against the Kai Tai ?--No.
His Lordship Did you ever authorise Lau King Hing to make any arrangements with customers on your behalf?-Never.
After hearing further evidence his Lordship entired judgment for defendants with costs.
IN SUMMARY JURISDICTION.
EFORE HIS HONOUR MR. H. H, J.
GOMPERTZ (PUISNE JUDGE).
THE VALUE OF A DOG.
The case was continued in which A. W. Ilott, chief timekeeper of the Kowloon-Canton Railway, sued Constable Grant to recover $225 damages for injuring plaintiff's dog.
Mr. A. Holborow (of Messrs. Deacon, Looker and Deacon) appeared for the plaintiff, and Mr. P. W. Goldring (of Messrs. Goldring, Barlow and Morrell) for the defendant.
Plaintiff said he had a bungalow on the side of the hill opposite the Beacon Hill tunnel. At the time of the shooting, June 8th, he kept four dogs, which were shut up at night, but were free to run about his garden during the day. All witness's dogs wore collars on the morning of the 8th ultimo. He had had, the dog which was shot a little over eighteen months. It was of value to him because it was a good watch dog. It was of a very gentle disposition, and was affectionate. When the dog was younger it used to fight, but witness gave it a severe thrashing nd broke it of the habit. Should anyone wave a stick at it while it was barking, it would run away. Defend- nat's bungalow was about five minutes' walk from witness, and the former had to pass the garden of witness to get to his house. Defendant had never complained to him about his dogs fighting,