532
referred his Lordship to a case in Odger's between Eastwood and Holmes.
His Lordship (referring to it)-If a man wrote that all lawyers were thieves. (Laughter.) Sir Henry Berkeley-That is a very rude illustration, but there is nothing to show that that article was inserted with reference to any special plaintiff.
His Lordship-On that point there are numerous authorities to show that a plaintiff must not be particularly entered.
THE HONGKONG WEEKLY PRESS AND
His Lordship-That is a figure of speech, Mr. Slade--Well, my lord, I think it is an exceedingly apt description of what the effect of this Ordinance is. The paper is a Hongkong paper; the wrong complained of was done in Hongkong; and the publication was in Hong- kong, although the injury covered a wider area. Assuming the Society to have been injured, who else could sue in the Colony but the Society itself?
His Lordship Why couldn't the doctor have
?
Sir Henery Berkeley-There must be evid-sued ence from which you can point to the particular persons mentioned in the libel. The persons mentioned in this libel are not the President fin Hongkong of the Basil Mission, but Mr. Sautter and Dr. Vortisch.
His Lordship (to Mr. Slade)-I am not sure that I can construe correctly paragaph 1 of the statement of claim. You say, the President in Hongkong of the Basil Mission and, carries on the business of a medical practioner at Ho Yuen. Mr. Slade-It is the corporate title of the Society; the name under which any action must be brought.
on carries
His Lordship-But business of a medical practitioner."
Mr. Slade-Yes,
the
His Lordship-There is no evidence of that. Mr. Slade The Society which is incorporated in Hongkong carries on a hospital through its servants, who are medical men.
His Lordship-I see how you put it.
Sir Henry Berkeley said whichever way it was put it was not possible to make a plaintiff, who was President in Hongkong merely for the purpose of holding the property of the Mission. in Hongkong, a medical practitioner carrying on business at Ho Yuen. If his Lordship turned to Ordinance 2 of 1906, which incor- porated the plaintiff, he would find what the whole scope and intention of that Ordinance was. The President in Hongkong under that Ordinance, he submitted, was merely a corporate body for the purpose of holding property in Hongkong on behalf of the Basil Mission in Switzerland. That was apparent by his title, and he had no corporate existence in Ho Yuen. The Mission had stations in India, China, Africa and other parts. Could it be contended that the President in Hongkong could bring an action in respect of a libel on a mission in Africa? If he could not bring an action in Africa, he could not bring one in Chins. We could not pass an Ordinance in Hongkong enabling a corporate body to hold property in China, The local legislature had no jurisdiction to incorporate a body to act in America, Africa or China, or anywhere outside of Hongkong. He submitted that the power and authority of the President in Hongkong was limited to the Colony. · As- suming that the President in Hongkong could bring an action in respect of the property of the Mission in Ho Yuen, he could not bring an action of this character, because the wrong which was complained of was not an imputation upon the corporation as such, but upon individuala in the employment of the Corporation; and because the imputation was of a nature which amounted to the charge of the commission of an offence which could not be committed by a corporation
His Lordship You say the action should have been brought by the doctor. ·
Sir Henry Berkeley--I won't say by whom ; but not by the President in Hongkong. There is nothing in the Ordinance which authorises the Basil Mission to trade or to do business. submit for the several reasons given that your Lordship ought to stop the case and dismiss
the action. »
I
Mr. Slade contended that what the plaintiff was was clearly shown by the Ordinance by which he was, or it was, incorporated. Among the rights and powers specially given to it were the right to sue and be sued in all Courts of Justices and of Magistrates in this Colony.
His Lordship Assuming, of course, that it has a right of action.
Mr. Slade Of course. If this article injures the Basil Mission Society the plaintiff in this Court is the right plaintiff. I am showing your Lordship that the plaintiff here is a Society, not an individual at all. As my friend with has usual aptness put it, this Corporation was formed to protect the worldly interests of the Society.
|
Mr Slade-Because these people, who have given their lives to good works, do not care to come forward and make claims for persbual compensation. The injury which was done was not to them personally, but to the Society whose servants they were.
His Lordship-He is a servant of the Society' and an action by the doctor would have vindicat- ed the Society.
Mr Slade-He could not have got the $4,000 for injury done to the Society.
it
His Lordship-It is alleged that he commit- ted an operation tantamount to murder.
Mr. Slade-He might have been a party to this action, but he preferred not to be. I take the responsibility of having advised him that was absolutely unnecessary. Unless he wanted to recover damages for his personal | reputation, it was unnecessary for him to join, in an action brought because of damage done his employers. 18 to whether an injury has been inflicted upon the society, that is to say, upon the plaintiff.
to
His Lordship-The Corporation.
MA Slade The Corporation, My friend has put forward suggestions which involve the old metaphysical argument that a corporation can do no wrong. It has neither body nor soul, therefore it cannot comm t a crime. That a corporation being it," and not an individual, cannot be guilty of such purely human acts as malice.
-Sir Henry Berkeley-I did not say that.
Mr. Slade-No,, but you implied it. Those authorities have been exploded once and for all by the case of the Citizens' Life Insurance Co. v. Brown reported in the 1904 Appeal Cases, Applying those principles to this case, I submit it is perfectly elear that this Corporation could have been sued by the husband of the woman if the allegations contained in this article had been correct. The Corporation would have been guilty of a civil wrong, for which redress could have been recovered from it.
His Lordship-Of a criminal wrong. Mr. Slade-I am not concerned to say that. His Lordship--I think it is material. Mr. Slade The wrong which gives rise to a civil claim for damages is imputed in this article, His Lordship-You said in your pleadings it was a criminal offence.
Mr. Slade-In innuendo, His lordship-Yes.
[December 20, 1909.
The Foreman (Mr. Northcote) then announced that the jury had found for the plaintiff, and assessed the damages at $2,000. -
His Lordship reserved judgment pending the furthing argument.
Wednesday, December 15th.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR MR. H. H. J. GOMPERTZ (PUISNE JUDGE).
- CLAIM ON A
PROMISSORY NOTE.
Action was brought by Gazdar against Li Kow to recover $1,000 on a promissory note signed by the defendant and Chan Dat Cho.
Mr. F. X. d'Almada e Castro (of Messrs. Almada and Smith) appeared for the plaintiff, and Mr. M. Reader Harris (of Messrs. Wilkinson and Grist) for the defendant.
Mr.
Imada informed his Lordship that he understood the defence. was want of considera- tion.
Evidence was tendered to the effect that the plaintiff could not identify the defendant, to whom he was alleged to have lent the money. Defendant denied having signed a promissory note, but admitted having signed a tender for the making of certain machinery. The hearing was adjourned.
Thursday, December 16th.
CLAIM FOR COAL SUPPLIED. The action was proceeded with in which Wing Hop and another sued Ng Yuen Ha to recover $780.35 for coal supplied under a guarantee.
Mr. Lee d'Almada e Castro (of Messrs. Gold- ring, Barlow and Morrell) appeared for the plaintiffs, and Mr. Hinds (of Messrs. Brutton and Hett) represented the defendants.
Mr. Hinds informed his Lordship that the endorsement the writ was for the price of coal, but it appeared that the plaintiffs were suing for the guarantee on a promissory note.
,on
Mr. Almada-I am suing on the guarantee. His Lordship -You are satisfied with your endorsement?
Mr. Almada-Yes.
Mr. Hinds--If my friend is satisfied I ask for judgment.
His Lordship-Has the promissory note been met?
Mr. Hinds-It has been endorsed over to another firm.
His Lordship--Has it been honoured? Mr. Hinds I am not instructed either way. Mr. Almada-Payment has been made by the guarantor,
no
Mr. Hinds said the position was that there was a debt for coal for which the plaintiffs.
There was accepted a promissory note. evidence that the defendant had gone guarantee for the coal; she had only guaranteed a promis- Continusory note.
Mr. Slade Take it so, but that is not all There is a great deal more than that. | ing, Counsel stated that if a man was guilty of an act which amounted to a crime, that was no reason for depriving the person wronged of a His friend's assertion that à civil remedy. corporation could not be guily of an assault was disproved by a long series of cases wherein corporations had been held liable for assaults committed by their servants in the course o their duty.
...
act
His Lordship-Even though it be an which, as a corporation, they could not do.
Mr. Slade-A corporation acts through its servants, and if a servant acts within the scope of his employment the corporation is liable.
His Lordship stated that he did not propose to withdraw the case from the jury, as it cause of might be held hereafter that the action was good, and that would involve & new trial, and having regard to our present jury it was extremely undesirable to system have a new trial. That being so, he pro- allow the case to go to the posed to jury, subject to the point of the plaintiff's right of action. He would direct the jury that they should have to assume that there was a proper cause of action, and later he would!
on the point raised, hear fuller argument which was a very important one.
Counsel then addressed the jury, and after his Lordship's summing up they retired, return- ing into Court after an absence of ten minutes.
His Lordship told Mr.' Almada to amend his writ by adding a second count.
Mr. Hinds did not think there should be two counts against them. The plaintiffs ought to sue one way or the other.
His Lordship-Why not alternately? There is nothing against suing on several counts.
Before the case for the defence opened Mr. vlmada wished to call a witness from the country named Leung La Chun.
Mr. Hinds objected. He had offered his friend an adjournment to get his witness.
Mr. Almada--He is a most important witness. His Lordship Why couldn't you get him on the first occasion ?
Mr. Almada-Because he was away in the country.
His Lordship did not think Mr. Almada was entitled to call the witness after closing his case.
The defendant, in cross-examination, stated that she came to Hongkong from Australia about eight years ago. She was married im- mediately after her arrival, and had lived with her husband in Hongkong for the last five years. “
uring that time her health had not been good. She was not educated in Chinese on account of the lack of facilities to acquire a Chinese edu- cation in Commonwealth. She could speak the language, however, and could read a little, but she could not write it.
The hearing was adjourned sine die.