Page
SUPREME COURT."
Friday, 31st May
IN SUMMARY Jvaisntorion.
BETONE ML. H. H. J. GOMPERTZ (PUISNA JUDGE).
THE VERANDAH CASE, Jadgment was given in the action is which Alexander Koles, George Maidonis, and fieorge Tsumtsacopulos, traders, occupying premises at the old Post Office, sued Li Hing, trador, of 152, Queen's Road, for $1,000 for damages for breach of contract whereby defendant agreed to erect a verandah on the pre- raises occupied by the plaintiffa.
Hr. Eldon Potter, instructed by Mr. Grist, of Messrs. Wilkinson and Grist, appeared for the plaintiffs, and Hon. Mr. C. G. Alabaster, instructed by Mr. J. H. Gardiner, appeared for the defen- dant.
Hís Lordship said-This is a claim for damages for breach of contract to erect å verandah on certain premises, for which the plaintiffs are tenants to the defendant The plaintiffs rely first of all upon the agreement for the lease which is in writ
area
Mr. Alabaster-I don't know whether your Lordship in naseming damages would put in an alternative that a less sum should be paid in the event of our putting up a verandah now, It we put up a verandah now the 240 month would be paid up to the time the verandah was put up.
Mr. that.j
Mr.
Potter-We cannot constit
to
Alabaster Your Lordship has seen sufficient of the circumstances to know-your Lordship has seen the plan, It may be worth our while to put up the verandah, and in that case they would get the benefit of it.
Mr. Potter-I think you can leave it to the good sense of my clients. My friend's suggestion comes to this, that it a contract is broken and if you then carry out the contract you need not pay. so much damages. I think you may leave it to the good sense and good advice of my clients' solicitors.
His Lordship-If you carry on the lease it would be better for you to have the verandah instead of having this sum in your pocket.
Mr. Potter That is a matter which we would have to take into consideration.
Mr. Alabaster-I am sure plaintiffs
tiffs.
THE HONGKONG DAI÷Y PRESS, SATURDAY, JUNE 1st, 1912.
INADEQUATE HEGULATIONE.
Mr. Alabaster said there were 30 crediTHE MOTOR CAR IN HONGKONG. tors in all. The debts of seventeen of"} thom amounted to 450,360.53. The Yuen Shing admitted a debt of $42,174,08, and there were five other creditors representing $7,573.25, a total of a little over a lakh the need for proper regulations govern
An interesting case which emphasised $100,034.44). "That accounted for 23 outing the motor car traffic in the Colony of the 31 creditors. Then there was the was heard before Mr. C. D. Melbourne petitioner, who represented 312,000 only.at the Magistracy, yesterday. The case As to the remaining soven, one was un- was one in which Commodore Eyres known, two were no longer in business prosecuted the driver of motor car No. 8, having failed, and made no claim. One, which is owned by the who was in Amman, made no daim, and Garage, for furious driving on Jubilee Coronation the other two were said to be in favour Road, and in such a manner na to esi- of the appointment of Yeung Pik Chi, as
danger life and limb. liquidator. That left only Messrs. Dennys and Rowley, who did not appear to have claimed at all. The petitioners had not. made out a case for compulsory winding "P.
Mr. Potter said the question was whe- ther Mr. Young Pik Chi was a suitable person to be appointed liquidator. What was the position at the present time? They had as liquidators of the company at the present moment men who admitted ly had not conducted the liquidation pro- perly. The question his Lordship had to decide was whether that voluntary liqui- dation was to go on. Was it to be assumed, if Yeung Pik Chi was appoint.
tors desired would be given to them? Was Judgment was entered for the plain-be to assume that all would go well in future or was he to say, he would have a compulsory order and then the creditors could have Young Pik Chi if they chose ?.. That would ensure that in future the affairs of the company were properly.
was the true position as regarded the the ove of the Court. That, he submitted, wound up, because it would be done under
winding up.
ing, but in my opinion they cannot will be well advised in this ease to adopted liquidator, that everything the credi. found this contract on the written agreea sensible view. mout which purports to lease to the plaintiffs merely all that portion of the ground floor of the block of buildings as.
A DEVENCE OFFICER'S RIGHT TO ABERT. is coloured pink vs the plau annexed.
The case of Yin Man. Chan Hing, The verandab in outside the coloured pink and I think is quite clear damages for wrongful arrest was, men- in which plaintif claimed for 8500 that the written agreement taken alone confers no interest outside the area Messrs. Guldring. Barlow & Murrell, Mr Russ, from the off of tioned. specified; The walle, it is true, are not coloured pink, but they are necessary appeared for the plaintiffs, and Mr. appurtenances of the demised building... Hodgson, assistant Crown dulici- The verandah is clearly something out tor, appeared for the defendant. side and apart. In the alternative the! plaintiffs rely a collateral verbal
DI
agreement. If the contract alleged is for an interest in land, then of course the Statute of Frauds applies and the con- tract must be in writing. But I think the alloged promise to make a verandah is not a contract for an interest in
Mr. Russ asked for a date to be fixed. Mr. Hodgson said he would like to
have the particulars of the 818 costs endorsed on the writ explained. He night want to pay a nominal sun into Court with costs.
Mr. Russ--Well, pay the $500 nur. Mr. Hodgson stated that the men were
defend them.
Is Lordship-It will very much in crease the costs.
Mr. Potter-Not very much, my lord, And that is an item, which so far, as the case will show, has never been taken into consideration. into consideration is this: ought we to protect the creditors, ur ought wa got? If the creditors can show that the affairs of the company were grossly mismanaged by
All that, has been taken
car
an
alid a
Mr. Bowley-There might be. accident between a motor pony at any time, but that would not necessarily mean that it would be the fault of the driver of the car.
a
corner
Mr. Melbourne-A car coming round Commodore Eyres says that the first would give no intimation. intimation he bad of the car's approach was the sight of the wheels.
Mr. Bowloy Anyone who rides likely to meet a motor car. horse along Jubilee Road knows he is Everyone has a perfect right to ride along the Jubilee Road on horseback, and every the rider does not keep his horse under motor car has a similar right, and if proper control, that is not the driver's fault. It is one of those accidents which Mr. must happen if people ride restive expict Jubiles Road to be kept for No one can trained trafic, like Happy Valley The car passed on the sea side-
Commodore Eyres-My evidence is contrary to that I said that he was on the wrong side of the rond.
defendant. In his evidence. Comedore Mr. F. B. L. Bewley appeared for the Eyres stated that on the 27th inst, he was riding along Jubilee Road in con- pany with his daughter. and Clementi (Colonial Secretary). As they horses ou public roads. were turning a corner, a motor car came
upon them. No horn was blown, and the first intimation they received was the sight of the wheels. There were Euro peans in the ear.
Mr. Bowley-Were you riding away from Hongkong or towards it-Away from it; from Tung Wah to Aberdeen.
Mr. Melbourne He came round a corner without blowing his horu. Could you tell me in what part of On the Tung Wah side of the crosS.
Mr. Bowley-But there is no obliga. Jubilea Road you met motor car No. 8?tion on him to blow it, or evap to carry one. You must dismiss from your mind roads leading from the Dairy Farm to the regulations for motor traffic in Jubileu Road.
England. Hongkong has no regulations there is a cross road there.
You were on the Jubilee Rund 7-Yes, providing that motor cars shall carry keras, nor providing for the sounding of bells by bicycles. It is my impression that as long as the regulations remain in their present condition, the authorities cannot blame the drivers if they do not se their horn at any time. They are
side of the road? Yes, between Tong It leads to a bungalow on the other. Wah mortuary and the cross ronds.
Nearer to Tung Wah-No.
Where did you meet the next car-Abeing blamed enough at present for little further castward, nut minutes afterwards, say, six or
many making unnecessary noise, minutes,
This man
вечеп
furiously at 6.15 p.m. Did you fix the is charged with driving
tinie -On the second charge.
charge against this man, and that is that Mr. Melbourne-No, there is only one he was driving car No. 3 along Jubilee Road to the common danger of passeng ers, at 6.15 p.m.
Mr. Melbourne-I don't think there has been any alteration since April, 1011.
tion to the fact that there was not a regulation governing the warning to be
say that a vehicle should keep to the left given by cars there was no regulation to side of the road.
Mr. Bowley pointed out that in addi
in the Ordinances about motor cars and Mr. Melbourne-No; there is nothing
horny. Defendant is discharged. (To
land: it is not a demise of a verandah revenue officers and he was prepared to the liquidators in the past, then the Court
Mr. Russ-We are testing the right of/should not hesitate to make an order. the inspector 1-I gave in the charge that Commodore Eyres) In the second case,
but a
collateral independent under. taking, which might be expressed as Follows:-If you become tenant of these revenue officer to arrest a man under premises we will build you a verandah. | a separate Ordinance, The revenue You shall have the use of a verandah. officer is appointed under the Opium The cases are:--Donnellan . Read B Ordinance.
In this case be arrested and Ad. 809, Mann r. Nunn 30-L.T..526, peuple for carrying San Pui lottory Angelt e. "Dube L.R. 1C QB. 174. Then tickets, the frenue officer not being a on the facts. Considering them as a jury constable and not being appointed for that would do, I am quite clear that Mr. Purpose. Hazeland was the agent of the defendant, "to show and explain to intending tenants "the" plans” on "winick," the verandah was shown. Mr. Hazelaud told the plaintiffs that the verandah would be erected if a permit could be obtained. I am of the opinion that he did this with the authority of the defendant who, himself,
His Lordship-What was he fined for Mr. Russ-For having lottery tickets in his possession. Even if we succed, whether that fine comes under the head of damages we are entitled to claim is doubtful.
?
Mr. Bowley Did you give the time to
without giving the signal the driver was coming round the corner of his approach.
it come from 1-I gave the approximate How did you fix this time; where does
time.
May I ask you which way you return-
You do not know what time you reached the Gap -I cannot say, but it was about 7.30:
The nominal capital of the company was one million dollars 5,000 shares of $200 400,000 in the shape of uncalled capital. eacland there was still outstanding There were 400 shareholders who were each liable for $1,000. The debts of the company amounted to $120,000, so that the assets were more than three times the necessary assets if the company's capitated from your ride-By Pokfulam Road, was properly called in. Therefore it was the Reservoir, and Victoria Gap. obvious that if they only got half of the assets in through a compulsory winding up, not a penny of expense would be thrown on the creditors. They would all be paid in full, and still a huge surplus would remain over, and any suggestion of expense as being an answer to a re quest for compulsory winding up, went by the board. His Lordship had further to bear in mind that for nineteen months there had been gross mismanagement, and he ought to say he was not going to run the risk of there being farther mismanage. ment. The petitioning creditors had been kicking the whole time, but the other Mr. Russ What do you say they ought at all to enforce any of their rights: Mr. |
creditors had apparently laken-'no' steps
Potter further inentioned that only six which it was suggested Mr. Yeung Pik creditors were present at the meeting at
Chi should be appointed liquidator.
His Lordship-Would that be the ordinary consequence of an unlawful
act ?
Mr. Russ--I suppose it is, if he is arrested.
·Mr. Hodgson—There may be a techni- cat breach of the law in regard to assault, and I want to pay nominal sum into Court. But I want particulars of the costs.
tu.be 7:
nlay
Mr. Hodgson--According to the uul scale. I am asked to pay 2500 and 818 costs within four days.
Mr. Russ-If my friend pays in a small sun into Court he bas to pay a proportionate amount of costs.
meant to have the verandah and would have put it up if the terms of the permit had been acceptable. I believe that when the defendant told the plaintiffs that it was not certain that there would be a verandah, they did not explain nor he enquire further the reason of the un certainty, for the very sufficient reason that it was anderstood that the permit was not yet grauted and that therefore the mutter was subject to a contingency. Nor have I any doubt that the plaintiff's relied on the plan and the explanation of it given to them, and believed, as tho defendant believed and intended them to believe, that a verandah would certainly be put up if a permit was granted. This is a very sufficient reason why, there was no express stipulation to this affect in the written agreement. They were told that the defendant was doing his best to get a verandah and they thought they were perfectly safe in acting on his representations and on the plan shown to them. I must deal shortly with a question raised at the close of the plaintiffs' case-the matter of interpreta tion. I held that when in the circum- stances the plaintiffs went to the office not fair to put on costs where they are of the defendant's architect, then the serving Chines who do not know the defendant in employing the architect's scale.
His Lordship-I don't see why you should not give particulars of costs if they are asked.
Mr. Russ-I don't mind.
His Lordship said he was of opinion that the petition should be dismissed. There was an overwhelming majority of creditors opposing the application and in favour of Yeung Pik Chi being ap- pointed lqinidator in voluntary liquida former voluntary winding up should be tion. Had the question been whether the allowed to continue, the petitioning eredi- for would certainly have had a stronger
Mr. Hodgson-1 don't think they should put on more costs on the writ than they are entitled to. It is not fair, specially when they are dealing with Chinese clients, and I think it ought to CBSP. be stopped.
His Lordship You think they are 1. Mr. Hodgson I do, my Lord. · It is
~ IN ORIGINAL JURISDICTION.
The question of costs was left for dis- cussion in Chambers.
I understand that the time 0.15 was not fixed by looking at your watchi, but from a general impression ?~--No," from looking at my watch; I am not sure of my watch to three or four minutes.
When the car stopped it had passed you? Yes.
Aud there was room for the car to pass-Plenty of room.
you have similar evidence? Commodore Eyres-Yes. Mr. Melbourne- am afraid I raust
provide for it. Unfortunately, the regulations do not discharge the driver in that case also.
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Home University Library. The History. of England, by Professor A. F. POLLARD, M.A. Canada, by A. G. BRADELEY. French Literature, by G. L. STRACHEY, M.A. Climate and Weather, by Professor H. N. DICKSON, D.Sc. FINEST Peaples and Problems of India, by Bir T. W. HOLDERNESS, K.C.B.I. The School, by Professor J. J. FINDLAY, Ph.D. Architecture, by W. It. Lethaby The Problems of Philosophy, by the Hon. BERTRAND RUSSELL, F.R.S. Anthropology, by R. R. MAREIT, M.A. Rome, by W. WARDE FOWLER, M.A. London Williams & Norgate. Ono has merely to read the titles of the last batch of ten volumes added to this Library of Universal Knowledge, together And did your ponies shy--Well, not with the names of the authors to be badly, but slightly. They are very convinced that the early announcements nearly every day on Jubilee Road, or fulfilled accustomed to motor ears, and I ride of the Editors and Publishers are being
at least three or four times a week. I invariably meet two or three cars.
So you expect to meet cars and are on the lookout for them Yes.
And it passed you on the proper side of the road-Yea
On his own side - Yes.
The complaint you make is that the driver did not sound his horn coming
round the corner 1-Yen.
4
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Every volume is absolutely CLOCKS new and specially written. Every sub ject is of living and permanent interest. The books are written for the general reader as well as for the student. We ourselves have found each volume we
risk of danger, as a matter of fact have opened to be clearly written, exceed-
I understood you to say there was a
there was no danger to either you or ingly comprehensive considering the agree with you. your companions Yes. I think 1 limits as to size, and suggestive in its guidance to anyone who wishes to pursue the study of any given subject. But wo have not been content to remain satis fed with our own experience. We have Mr. Bowley submitted that there was tried the effect of placing several of the no case. It was clear from the Cora volumes in the hands of a grathful modore's evidence that no one was in student who was rejoicing that bis danger. It was said that the driver did scholastic training was drawing near to not sound his horn coming round a A society has been formed in Peking corner. There was no regulation for the books with repugnance born of book an end. Instead of turning from the
recently called the Wu Society which sounding of a horn coming round a interpreter as his intermediary with the A date was fixed for the hearing..
weariness, he has speedily become Ordinancs 146, section 3, sub- absorbed, has opened up a flood of means I or My Society. Its object is to corner, plaintiffs must ho held prima facie to
forbid the use of foreign goods and extend section 7 provided a penalty not exceed questioua, and has been induced to carry have adopted that interpreter as the
Chinese commodities. It has been origi-ing 350 for driving furiously and in on his investigations in several subjects medium of-communication between thein and himself. I think this was the correct-
nated by the Cantonese and has become such a amoner as to endanger life or with a view of extending his knowledge ruling, f. tlie Holland-China Trading
popular with the people who are en- limb to a passenger. in a public Here we think, is one of the best tests to which we could have subjected the thusiastic over the idea.
thoroughfare. There was no evidence Company v. Tong Tai firme, 2 H.K.LR.
Library. It is not merely the con": that the driver had driven to the com- contrated knowledge these volumes pre- P. 64. I have found the contract proved und the breach is admitted. The only
mon danger of passengers. In fact, the sent to thoughtful persons but their question is the avions of the damagestion for the compulsory winding up of
The Unionist members of the National horses were not frightened, and the car stimulating effect upon the reader that we wish to emphasiac. They are no The damages are of course purely general the Hip On Insurance, Exchange and Council are strongly desirous of over-
passed them on its proper side. There
dryasdust treatises. They are, each, one) damages, and a lump sum of $1,000 is Loan Co., Ltd., in liquidation Arthrowing the Premier and supporting tion to prove danger, and if it did not, daya when men turn aurfeited from badly was no danger. It was for the prosecu- of them, agreeable to read, and in these claimed. Looking at the matter broadly | Potter (instructed by Mr. Davidson of Minister Hsiung Hai-ling as his suc as a jury would do, I think that perhaps Hastings and Hastings) appeared for the cussor with Messrs. Tang Wen-chih right to drive on that road at twenty or literary distinction, and cry out for the case would fail. Motor cars had the constructed novels, full of weakly-drawn
characters and absolutely devoid of plot | an allowance of 849 a month for twenty petitioning creditor, the Yue Wo Fat arm, Chang Chien and Chen Chin-tao na months, being the demised torm, less the merchants of 99-Dex Vœux Road, and the Ministers of Industry and Commerce, limit, and it was well known to every strongly
miles an hour, which was the speed better mental pabulum, we cannot too
recommend this excellent two months occupied in negotiation with Hon. Mr. C. G. Alabaster (instructed by Agriculture and Forestry, and Finance, the Government would be fair compensa Mr. H. J. Gedge, of Johnson, Stokes and but this has been opposed by the Alliance one in the Colony that the ears used Library to our readers. It is not our intention on the present occasion to deal tion. I therefore award the plaintiffs Master) appeared to oppose the applica Society and the Republican Party. The that road extensively. Every one ex- in detail with any one volume; but only 8800 and their costs of the action and įtion, on behalf of the Hongkong and
mention how fascinating we have found Manila Yuen Shing Exchange and Tradtions, but were prevailed upon not to do solar ponies were used to the cars and did
Ministers have tendered their rosigna-pected to meet cars there.
Mr. Melbourne Because these partien. Sir T. V. Holderness's trontment of the I certify for Counsel..
"Peoples and Problems of India." No ins Co., Ltd., and was instructed by afr. by the President: It is said that a car-
one who wishes to possess some know Otto Kong Sing, on behalf of seventeen
not shy, it does not follow that other ledge of the complexities of Indian tain power se endeavouring to secure ponios would be accustomed to them, social, political and religions life should other creditors.
Tang's overthrow.
There might have been an accident.
Mr. Potter accordingly innved for judgment and costs...:
Before the Cher Justics (Hex. Mä RESS-DAVIES).
WINDING UP OF A COMPANY.
The hearing was resumed of the applica
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45
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