December 6, 1909.]
for a quarter of an hour to allow of his being called. As the defendant could not be found, however, the hearing was adjourned.
Wednesday, December 1st.
IN CRIMINAL JURISDICTION. BEFORE HIS HONOUR MR. W. REES DAVIES, K.C. (ACTING CHIEF JUSTICE).
!.
RECEIVING STOLEN MASONIC JEWELS.
Tse Kwai was indicted on a charge of receiv- ing stolen goods.
Prisoner pleaded not guilty, and the following jury was empanelled:-Messrs. A. B. Bryson (foreman), F. Drude, J. W. Peate. E. H. B.
Schwandes, J. J. Judah, A. G. Coppin and
W. E. Molson.
Mr. C. G. Alabaster, instructed by Mr. H. L. Dennys, Jr., from the office of the Crown Solicitor, appeared for the prosecution, while the prisoner was represented by Mr. Eldon Potter, who was instructed by Mr. W. E. L. Shenton (of Messrs. Deacon, Looker and Deacon).
CHINA OVERLAND TRADE REPORT.
Road. He was induced to make the alleged agreement mentioned in the indorsement of the writ by the fraudulent representation of the plaintiff that the boarding-house at 74, Caine Road had been fully occupied by boarders from January to April in the present year. The defendant was further induced to make the contract by the fraudulent representation of the plaintiff that her intention was to return to England, and not to commence, another_boarding-house business in Hong- kong. In the alternative the defendant said that plaintiff agreed by verbal agreement on ΟΙ about September 8th not to set. up, another boarding-house in Hongkong; and according to the true construction of the contract the plaintiff was precluded from setting up, and from canvassing persons who had boarded with her, in order to induce them to board in any other boarding-house which she might set up. The plaintiff did, on or about Sep- tember 8th, canvass certain boarders who resided at 74 Caine Road, for the purpose of inducing them to enter a boarding-house she was about to open.
The defendant claimed an injunction restraining the plaintiff from opening or con- tinuing to carry on a boarding-house business contract, and the return of the sum of 500 paid in the Colony; also a recission of the aforesaid by the defendant to the plaintiff on the signing thereof, or in the alternative the sum of 700 damages caused to him by the acts of the plaintiff.
The defence to the counter-claim was a total denial.
Mr. P. M. Hodgson (of Messrs. Ewens and Harston) appeared for the plaintiff, and Mr. Hinds (of Messrs. Brutton and Hett) represent-
Mr. Alabaster, in opening the case for the Crown, said the prisoner was charged with receiving three Masonic jewels well knowing them to have been previously stolen. It was his duty to prove three things before the jury could convict: First, that the jewels were stolen. Secondly, that after the jewels were stolen they were received by the prisoner. Thirdly, he had to prove that at the time the prisoner received them he knew they were stolen. The theft would be proved by the owner of the jewels, and the thief who was caught, prosecuted, and sentenced to a term of imprisonment for stealing them. The thiefed the defendant. would also prove that the jewels came into possession of the prisoner to whom he sold them. Moreover, à statement made by the prisoner at the Police Station would be put in in which he admitted receiving the jewels from the thief. Guilty knowledge could be inferred from the circumstances of a case. If he put before the jurors a number of circum- stances from which they thought they could safely infer that the defendant must have known the jewels were st len, they could draw that inference. If they thought the circumstances failed they must acquit, and if they were doubt- ful about it they should also acquit.
The jury returned a verdict of guilty by six to one, after hearing the evidence, and his Lordship asked the prisoner if he had anything
to say.
Prisoner-I did not know these things were stolen. How could I have known?
Mr. Potter pointed out that the thief had been senterced to six months' imprisonment.
His Lordship, after being informed that there was nothing known previously against the prisoner, informed him that he regarded his offence as worse-in fact much worse- than that of the thief, The prisoner
was
a man in very different circumstances to the coolie, a man who ought to have known better, and his Lordship strongly advised him, on the expiration of the sentence he was about to pass, to endeavour to lead an honest life, and not to attempt to benefit by frand perpetrated upon other people. The Chief Justice assumed that the prisoner had hitherto borne a good character, and took that into consideration. The prisoner would be imprisoned with hard labour for nine calendar months.
Thursday, December 2nd.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR MR. H. H. J.
GOMPERTZ (PUISNE JUDGE).
ALLEGED BREACH OF CONTRACT. ·
Mrs. R. A. Ford syed Mr. W. H. Emberley to recover $500, balance due under an agree- ment dated September 8th, for the purchase by the defendant from the plaintiff of the fur- niture and goodwill belonging to the plaintiff
then in the house at 74, Caine Road.
These
Mr. Hinds moved for judgment on part of the counter-claim on the ground of an admission in. the pleadings. The seventh paragraph said that the plaintiff was fitting out the premises at 74, Caine Road for the purpose of using the same as a boarding-house. premises, 74, Caine Road were occupied as a boarding-house by the plaintiff, who sold her goodwill to the defendant. Upon the defendant moving to more commodious premises, the plain tiff re-took these premises and commenced to fit them
out as a boarding-house again Plaintiff admitted that, in the defence to the
counter-claim.
His Lordship-Supposing you get judgment on that, what do you get?
Mr. Hinds-I want judgment for damages. Mr. Hodgson-I submit your Lordship can- not possibly give judgment on this now. It all depends on the whole case.
His Lordship--Do you admit you sold the goodwill?
Mr. Hodgson-Not in the sense my friend alleges.
His Lordship-Do you admit you sold the goodwill? Never mind in what sense.
Mr. Hodgson-I admit we sold the goodwill at the time of the contract. Later, you will see what that goodwill was.
His Lordship-There is a written agreement, I suppose?
Mr. Hodgson-Yes.
His Lordship decided to go on.
Mr. Hodgson-The words in the contract are, "at present at No. 74." I attach a certain amount of importance to those words, especially having regard to my friend's request for judgment.
His Lordship-I am not quite sure how far the Bills of Sale Act will come in.
Mr. Hodgson-That is a point. The defend- ant in this action put in a counter-claim by way of defence, practically making several allega- tions of fraud against the plaintiff to induce the defendant to enter into this contract. fraudulent representation is denied.
That
His Lordship-If you sell a goodwill you are not allowed to canvas.
Mr. Hodgson-We deny entirely that we canvassed. I submit to your Lordship that there was never a greater attempt to get out of a contract than the defendant has attempted here. This attempt was absolutely unjustifiable There was a counter-claim by the defendant, and it inflicted a great wrong on his client. which set forth that the plaintiff was a widow, Judgment was entered for the plaintiff upon and formerly carried on the business of a the understanding that she left No. 74. aine boarding-house keeper at 74, Caine Road. The Road, as soon as proper notice could be given. defendant now carried on the business of a But plaintiff was not to be precluded from set. boarding-house keeper at No. 43, Robinson' ting up another boarding-house elsewhere.
Friday, December 3rd.
491
IN ORIGINAL JURISDICTION,
BEFORE HIS HONOUR ME. W. REES DAVIES K.C. (ACTING CHIEF JUSTICE).
UNSATISFACTORY RICE CONTRACTS. The Hang Sing firm sued Messrs. W. R. Loxley and Co. to recover the sum of $4,274,, being balance due for rice sold and delivered, while the defendants counter-claimed $3,727.44, for breach by the plaintiffs of the terms of
their contracts.
Mr. Eldon Potter, instructed by Mr. R. A. Harding, appeared for the plaintiffs, while de- fendants were represented by Mr. M. W. Slade, who was instructed by Mr. F. B. L. Bowley (of Messrs. Dennys and Bowley).
Mr. Potter said he thought it was fairly c'ear on the pleadings that the rice had been delivered, that the defendants admitted it had been de- livered, and, in fact, that the defendants admitted actually owing the plaintiffs the sum of $4 274. Defendants had put in a counter-claim, and the only point at issue between the parties, as shown on the pleadings, was whether or no the defend- the counter-claim, or to reduce the plaintiffs' ants were entitled to gain a certain amount on He would, therefore, as the claim of $4,274. claim was admittted, ask for judgment.
His Lordship-The question the defendants raise is as to what they are entitled to on their contract.
Mr. Potter-Exactly. The rice has in fact been received and dealt with by the defendants. His Lordship-And you ask for judgment on the claim ?
Mr. Potter-Yes.
His Lordship- What do you say, Mr. Slade ? Mr. Slade said that a portion of what his friend said was perfectly correct. There was no dispute at all that if the defendants' allegation of breach of warranty and failure
to fulfil the terms of the contract were not established, they owed the plaintiffs the amount of the cluim. Supposing the defendants suc- ceeded on their counter-claim, the plaintiffs would the difference. The burden of proof was on then be entitled to judgment on their claim for the defendauts, and they had to begin. The plaintiffs had had nothing to prove.
Mr. Potter quite agreed that the burden of that he was entitled to ask his Lordship to say proof was on the defendants, but contended
that the plaintiffs had recovered on their claim. it was clearly laid down that if the defendants recovered more afterwards, the judgment would be in their favour for the difference.
plaintiffs on the claim, how does it prejudice His Lordship-If I enter judgment for the your position, vr. Slade ?
Mr. Slade said it prejudiced his position with regard to costs. The admission which was made was that plaintiffs were entitled to a sum of $4,000 odd for rice sold and delivered, if that rice was of the quality called for by the contract. If it was not, which fact they alleged and would have to prove, then the plaintiffs wer not entitled to that amount, but either to nothing at all, or something very much less. Judgment would prejudice him in this way: If he established that the defendants were entitled to nothing, by reason of none of the rice being of the quality demanded by the contract, then judg ment would be given against him for a debt he did not owe. Another reason was that if his Lordship gave judgment for the $4,274, the amount would carry interest at once, whereas if there was only a balance order of 100, interest would only be running on the $100. No judgment could be given on a claim until it was ascertained whether the amount of the claim was either extinguished or diminished.
His Lordship said he did not think he would be justified in granting judgment on the e aim at present.
Mr. Potter said if this was a set-off his Lordship could not give judgment; but if it only awas counter-claim he was entitled on the admissions to ask for judgment. The plaintiff
on on his claim if he did win, and the defendant won on his counter-claim if he did win, and judgment would be given for the balance for the purpose of execution. What his friend was obviously bucking at was the question of interest, and Mr. Slade should have seen ahead and anticipated that.
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