The Yarn Dispute.
JUDGMENT FOR DEFENDANT. STAY OF EXECUTION GRANTED.
Chlef Justice, Sir Francis Piggott, delivered
THE HONGKONG TELEGRAPH WEDNESDAY DECEMBER 23, 1908.
by way of mortgage. There scoms to be no very great difficulty in devising the necessary form of dreds; an agreement setting out the obligatives, and a mortgage lo which the fol: filment of the obligations is made the condition of redemption. The additional security by way
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this:
Codan's Advertisements.
NOTICE.
fa' the Supreme Court, this afternoon, the of cash deposit does not add much to the com- whole way towards solving the difficulties in the bwn researches among the authorities throw. A THURSDAY, 94th" December, THE bla judgment in the action brought by Messtaplexity of the maller. Instead of this, how S. J. Darid and Company against their come some of the terms of the arrangement between the compradora and the firm are em pradora (Mr. Chan Ut Chio) to recover the sum. 3648,816.67 and interest at the rate of 58 bodied in the agreement, and some are made conditions of redemption, and the two docu- ments are linked together by a series of ceps references. It would unduly complicate this judgment if I were to refer to any other term of the arrangement than the one with which this action is directly concerned.
per contum per annum from the date the wris was inued and ustit payment or judgment This largo claim was alleged to have arisen in connection with dealings in cotton yard, for which, the plaintiffs alleged, the compradore was liable.
find which helps in any way is the statement la Von of the Coote (p. 9) that it is clear that a mortgage does not itself imply a covenant. But is so then it disposes of the idea that the condi. tions for redemption can be treated as coven- ants, I hesitate to say that this carries us the present case; but it certainly goot long way towards meeting the argument "that what in stated in the mortgage becomes evidence of the obligations which the defendant has takes upon himself as mortgagor. If they are not covenants there cannot be evidence of-co- venants; but are nothing more than what they profess to be-Conditions of redemption. The puzzle is to find out how they can by mere reference in the agreement to be liable for the moneys due under the mortgage become any thing more than they really are even though these words are added, whether these manays If the compradore shall on demand pay to exceed in amount the value of the proceeds of the firm any deficiency in the price of goods the sale of the premises and the $55,co secur sold by the firm in connexion with contractsty of the agreement, as something which is not made by the firm with Chinese buyers whether much less is incurred by breach of contract or otherwise... In delivering his judgment, the Chief Justica If the compradore shall on demand pay cer said Mers, David & Co. are ruing Chau Uttain other moneys in certain other eventualities Chiu, the late compradore of the firm, for losses which do net concern us in this-action lecarred by them in their dealings with Chinese castomers which it is alleged were guaranteed by the defendant. Befne coming to the real question involved in the case there are a few preliminary questions which unus. be disposed
The defendant entered a counter-claim 10. recover the sum of $55,000, "alleged to have been deposited with thein.. This was denied.
Mr. H. E. Pollock, KC., instructed by Mfr. A. G. Jackson (of Messrs. Johnnan, Stokes and Master) appeared for the plaintiffs. The de fandant was represented by Sir Henry Berkeley, K.C, with whom was Mr. J. Scott Harston (of Messrs. Ewens and Harston).
of.
The mortgage assiges certain property to the mortgagee, with the following, among other, provisos for redemption.
Then in these events but in these events only the mortgagee will re-assign the premises to the mortgagor."
PRODATE JURISDICTION.
IN THE GOODS OF GEORGE LOMER
TOMLIN, late of No. 291 Homes dale Road, South Norwood, S.E England, and of Hongkong, De
NOT
OTICE in hereby given that the Court has,
by virtue of Section 58 of the lobster) Ordinance 1897, made an Order limiting the time for sending in CLAIMS against the above Estate to the rêth day of January, 1909, “
All Creditors are accordingly hereby required" to send in their Claims to the Undersigned before that date. T
Dated the sist day of December, 1908.
GWC PEMBERTON, Executor, No. 3, Queen's Road Central, Hongkong
PUBLIC AUCTION
that the personal covenant should have baad faserted) and it
this complicated question Phad to:
*1 have boun compsiled to an opinion upon it with such materials as were fuld before me, together with vuch light sa my
HONGKONG DISPENSARY will be upon it. I cannot profest to be satisfied with open for business from 3.35 AM. notil 7 PM. the result because I am uncertain whether Ihe same hours will be observed at the have got to the bottom of the matter, for the KOWLOON DISPENSARYMORE & A law of mortgages goes far back, into the ears A. S. WATSON & CO. LIMITED. Hongkong, 23rd December, 1005 [107 liest decisions of the Courts, and it may be thai I have overlooked some occult principle
* IN THE SUPREME COURT OF" which would tell in the plaintiff's favour." Ali
HONGKONG. I can say is that the event of the case going farther I must invite the learned Counsel on- gaged to a more prefound study of the early law than was possible before a Court of First. Instance. With regard to the case of Ex- parte Bishop to which I have referred, "I mast not be understood as expressing any opinion one way or the other, as to its bearing on this case, nor have I formed any owing under the mortgage can become some:epicion. I do not think that I should be justi- thing due under the agreement. How can an fed in directing a re-argument on the point. agreement to pay what is owing onder the It can be taken on appeal if the plaintiff is so mortgage became a real agreement to pay advised. With regard to the counter-claims, it definite "som when there is nothing owing by no means follows from what I have said under the mortgage? It seems to me that that the defendant is necessarily entitled to to call these conditions of redemption judgment on the counter-claim. If the addi, "evidence of the compradore's obligations" is tional cash security of $55,000 was so linked on to put them on a inwer plane than is essential with the security givas by the mortgage that 1103] to support the action. The agreement refers the conditions of the morigaga were also to them as'obligations, and: these they are not, the conditions for releasing the security, then and unless they are obligations they cannot be the plaintif, could hold the $55,000 until of the agreement, which provides that the en- Chinese customers were paid. But alibough" 1 tries in the firm's books are to be conclusive have searched through baik documents i can evidence against the compradore both of the fiad only a few sentences which point that fact of sales and of losses incurred thereunder. way, but none whith justify me in coming to Bat this cannot turn the other clauses of the that conclusion, Clause 11 of the ngrenment refers to the fulfilment of the obligations of the agreement into something which they are not The clause does not create liability, but simply compradore, that is to say, the obligations of the provides the machinery forascertalming sucblia mortgage and the agreement, which only aides bilityasmay exist. It would operate to determine the same question as is raised in the plaintiff's the amount which would have to be paid as the case, and which I have already decided. Defen condition for redemption. The text books deal dant must therefore have judgment with costs entirely, so far as I can see, with mangsges to on claim and for his counter-claim, secure a loan; the talk is always about repay. ment of the principal sum, and they go so far |an to say that "every mortgage implies a loan," which, it is clear, this mortgags, does not, Then the other mngage terms with which we are familiar are not very appropriate here: the mortgages's right is foreclosure; he expressly declines to exercise it because the pra.. perty has depreciated and to pefers to sus on the alleged agreement; though I am not sure what he thinks he cap do with the mortgage when and if he were to get his
Intimations.
HENGED MAID ugliab)winbas to give her anitices to lady a vélaru for pressge to England or would underíaka care. of Children." "Good reference.
Address
C/o Miss Clautan,"
Ka Bluff, Yokohama. Hongkong, sand Decembar, 1928. ^* [1098)
"THE IMPERIAL COLONIAL CLUB,
THE
THE Above Club is formed chiefly for COLONIAL and OVER-SEAS MEM, BERS It is situated at No. 84, Piccadilly (the centre of Clubland), opposite the Green Park | The Club has 's Bridgn Section, Reception," Dining," Billiard Room, Smoking Lounge, Reading Room and Library, Bon
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Further particulars from
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COLD STORAGE
(766)
THE HONGKONG ICE COMPANY LTD, baya cow 40,000. Cubic" fait of 'COLL. STORAGE available si BAST POINT,
Stores will be Open 81 10 AM AND 4 FU
perishabin quads. ¿
It was ar ued that the liability of the delen.. property depreciating in value, to pay the dif- sued upon. Some stress was laid on clause 12 the losses, resulting from dealing with "HE Undersigned have received instructions daily, Sunday excepted, to receive and deliver.
There is a power of sale on giving one month's notice of the above demands; also a covenant by the mortgagor, in the event of the ference between $45,000 and $55.000, at which value the properly mortgaged had apparently been assessed. There is no personal covenant to pay the deficiency above alluded to.
dast flowed from the nature of the arrange ment between the parties, and that it was im ported in the word "Compradore" itself. As at present advised I do not think, this is
Bolthere is a reference to an agreement at possible. I think if my judgment in Chan Ki Cave (which was referred to in support of the ready prepared, to be signed immediately after argument) in read as it was intended, it will be the execution of the mortgage, which appears found that carefully guarded myself from 1.part of the consideration for the mortgage, using words from which such an inference, the other part being the compliance by the could be gathered. The utmost that the Court plaintiff firm with the request of the defendast can assume to know is that the compradore to employ bim as compradére,, guarantees Chinese customers; but what I said The agacement of even date recites the mart- showed clearly that the extent of his suraty-gage: and that in order to further provide the abip must be derived from the documents in which the agreement is drawn up; and i must now add (subject to what I shall say presently on this point) as also the remedies agreed upon for enforcing the obliga tion of the surety. But even bad I gona for ther, I could not hold 'myself bound by what I may have said in a former case on a point which was not argued in that case, even though 'what I snid was material, and not obiter.
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security the defendant had deposited the,cum' of $55,000 to be held by the firm on the condi- lions appearing in the agreement.
By this agreement the compradore is engaged for 3 years. Paragraph 8 is the important clause; it provides, in so far as it is material to the present action, as follows:-
The $15,000 is to be held by the firm as part sècurity for the due payment of all moxies for the time being owing to the 5im by (be compia- dare under and by virtue of the recited morgage
A good deal of stress was laid on the fact that there had been an admission of liability or of the agréement, and all such modays may be Judgment in this cios and did not satisfy it to the part of the defendant, in a declaration relained out of the $55,000; but notwithstand-by execution. The mortgagee's right is redemp made by him in support of his petition to be ipg this the compradore shall be responsible (ortion; but what is the value of the equity of -adjudged—bankrupt,_on_which_petition she and make good to the firm all such moneys 1 redemption if the claim against him is far in Court made no order. I laid down in Wong Kaas aforesaid whether the same shall not exceed excess of the value of the security, Agsiu the Cheang's casathatthe utmost length to which the in amount the value of proceeds of sale of the law goes in the way of holding" a mad bound premises mortgaged by the recited, mortgage by what he has asserted to be a fuct when it is and the said $55,00 The words all such not a fact, is in the doctrine of estoppel if it moneys as aforesaid mean all moneys dus - does not fall within that doctrine, that is to say, under the mortgage or the agreement, As I if no one has acted on the assertion to his bave said the mortgage contain as personal prejudice, he may show that it is hot a faci.covenant to pay the amount of the losses in- 'In this case believing himself to bà, liable for cured by the firm in their dealings with Chinese the losses incurred by the firm, he made the customers; and the question which somewhat
救果 tha
At the conclusion of the judgment, Mr. Follock asked for a stay of execution in order to allow the 'parties to consider the case. Bir Henry Berkeley had no objection.
A stay of execution was granted for three months.
CHINESE CONSUMPTION
OR SUGAN.
In stating that one of the principal articles of cativa import into the Norb China" pro vicces is sugar, Vice-Contul Eraest Vollmer writes from Tsingtau!-Although among the average native coosumption of this article.may. be regarded as a luxury, it is nevertheless personal convenant in mortgages for loans is a food product which, more and more people said to be implied and the security collateral are getting to use and which is growing but this is because there is in fact a loss, and indispensable in an ever-increasing part of the mortgage has been given as security for the population. All of the sugar bow in repayment. There, is outside the ordinary uses cane, coming from the southere pro- mortgage the fact that a loan has been given vinces of the Empire, with Swatow as the "Every mortgage" implies "a loan; every leading source of supply for Shantung. Unra loan debt; and although there were no fined brown sugar is still far in the Itad, but convenant or bond, the personal estate of the cleaner and better refined white product the borrower must remain liable to pay off also shows a steady gain. Kefineries are lo- the mortgage" (Coote page 15) which means cated at Hongkong and Shanghai, while the obviously "the dr implied in the mortgage japanese draw a considerable part of the busis to secure the loan. Now, is it possible to pass to their country. They take the raw angar draw any analogy between this doctrine and to their sefineries in Japan, and the mortgage given to guarantee the pasform purifying again find China to be their
best
alter
customer. Ja this way they seedre profits from the transportation to and from Japan, for processing the sugar, and naturally also take a proft on the article itself. It lu probable that several small refineries will soon be erected in Swatow by patives, who control the bulk of the trade. While cane sugar alene is used here, strong competition from best years, The Lugar may be looked for in a few Chinese want sectors at the lowest possible price, not caring whether it is cane or beet sugar.
COMMERCIAL:
TO-DAY'S EXCHANGE. ' ----Sali (91-****
1/8 3/2
41
F.72
London--Bank T.T.
Da. demanda ann Do. 4 months' sight. ¿P‡ France-Bank T.Ti America-Back T.T. Germany-Bank TiT, minuni as
adla T.T. ............................
Do domandareenass Shanghal-Bank T.T. Slegapore Bank TT. per H.K. $100 Japan-Bank T.T........ Java—Bank T.T.”
the
to sell by" PUBLIC AUCTION,
'FOR' ACCOUNT OF THE CONCERNED, TO-MORROW (THURSDAY),
24th Decambar, 1938, at it. A M., at their Bales, Rooms, No. & Des Voeux Road, corner of Ice House Street, A QUANTITY OF LADY'S TRIMMED HATS. TERMS :——ÃS Dixual. '*
HUGHES & HOUGH,
Auctioneers. Hongkong, 23rd. December, 1908,
PUBLIO AUCTION.
[1109
HE Undersigned have received instructions
THE U to sell by
PUBLIC AUCTION,
FOR, ACCOUNT OF THE, CONCERNED, TO-MORROW,
the 24th December, 1908, st. ii^a.M., at their Sales Rooms, No. 8, Des Vœux Road, corter of Ice House Street,
'A QUANTITY OF ENGLISH JEWELRY AND BEST SHEF. "FIELD SILVER PLATE;· Comprising:- WATCHES, CHAINS, BRACELETS, PINS, BROOCHES, DIAMOND RINGS;
ALSO
· A quadlity of LOOSE DIAMONDS
AND RARE OLD TESTORE VIOLIN, RE- MINGTON TYPEWRITER, THEODO LIFE in Case "Bextant."
TERMI :—As usual
W PARLANE, Manager.
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CHINA
THE
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148
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NIGHT CARE.
HUGHES & HOUGH, Auctioneers: "Hongkong, z3rd December, 1908.
DOUGLAS STEAMSHIP' ·COMPANÝ, LIMITED.
FOR SWATOW, AMOY AND FOOCHOW. 845 pm, and a pan, hat pm. to 13:18 pm. THE Company's Steamship
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FROM
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· All broken, chafed, and damaged Goods are to be left in the Godowas, where they will be examined on TUESDAY, 291h insiäpt;"' - at 3.P.M.
All Claims must be presented within fifteen | 1271 | days of the steamer's arrival here, aftar which -758 | date they cannot be recognized.
statement in the abortive bankruptcy proceed perplexed me and which I di ected to be re- Ings. He bas since been advised that he is argued is, whether this stipulation in the not liable in law; is he to be debatred from agreement can be treated as of the same effect asking the Court to determine the question of as, and as if it were in fact the personal law Sarely not, Eu: in truth the admission convenant of the mortgage introduced into the in thļe case was only insisted on with the object agisement. It struck me and still strikes mo of making the defendiat begin. 1 think as curious that this point was not taken origin-ance of anzetyship). It seems to me that it is there is no warrant for this contentionally and the casa rested on it'j but the case was here that the plaintiff might possibly succeed, caso has developed itself put in the following way; this reference la the It seems to me just possible that the case of It seems clear that there is essentially agreement to payment of mocny owing under Exparte Bishop, to which referred in Chân legal question only involved, and so long as the mortgago has this effect-bat what is utas- Ki's case, might carry the plaintiff through; I can get at the true law which ought to decide ed in the mangage becomes evidence of the but this was not argued and I cannot my “the question I do sot much care who begins.. obligations which the defendant has taken up self devise the argument if there is one, The admission has, however, a bearing on himself as compradors; it prevents him from can uply express such opinion on the the case which I think it advisable to refer to, saying that he is not responsible for any mat- analogy as" occurs to me, I should be although it was not I think put forward lo ar ters which are not, set out in the mortgage, bound to hold that every such agreement as
Does not this admission show what | He cannot contend that these things which gument.
the one before me implies the existence of was the real-intention of the parties? I must aro included in the redemption clause are not compradore ; that every compradoro guarantees confess that this question troubles mas a little. past of the duties or obligations. After hear- all his firm's losses with Chinese customers Can I give judgment against what is the, I willing, the argument 1 am disposed to think and that therefore an action lies to recover assume, clear intention of the parties?, 1 do that the plaintiffs' caso cannot be put in any these losses; that is, to enforce the suretyship not think that there is any rule of law, however, other than this ingenious way. On behalf of outside the mortgage. So we come back to _which requires a Court to enforce the intention the defendant it was contended that although, the paint from which we started; L caupol at "of the parties, assuming it to be ascertained the two documents were to be read together, present assume without more that these are the, altunde, contrary to the meaning of the wards yet the express references in the agreement 30 duties of the compradore. I cannot at pre- asured in the agreement. The law requires the mortgage cannot be ignored, and that these sent say, otherwise than colle quially, that the the Court to seek the intention of the parties are really disjunctive mod not conjunctive. And compradore is surety for the firm's losses in from the words they have to express that inten- the result of this it that clause 8 of the agree their deplings with Chinese customers; that tion, sad I think I am, right is saying, that, toment is no more than an agreement to be would be to beg the questions in issue, which take an" extrame case, even if a mao knew that responsible for the moneys owing under are whether he is sorely; if so: what certain liabilities were intended to be under the mostage which brings us back to the is the extent of the surelyship? What are the This conten-obligations he has undertaken? What are taken by him when he signed the agreement point from which we started. .in question, yet if he finds that the agreement tion then takes this form that the only the remedies agreed to for enforcing these as signed does not impors that liability on him, way in which the moneys owing under a mort.obligations? The compradore spitem is based be a not bound, there being, of course, po gage can be ascertained is by foreclosure; and upon express agreement, that is to say, agree mala fidis on his part.
as there is no covenant to pay the losses incurr-ments for undertaking liability have been en- ed by the firm, the remedy is limited to fore-tered into between European firms and a Chl closure, and there is no fiab lity beyond the pare intermediary between them and the Chi: actual security taken. As it is important to nese customers, and this latermediary has come emphasise the real issue raised by the defend to be called a "compradore." Test it this not. I will amplify this contention: it is not way-are all compradores liable for lowes merely that as the action depends on reference caused by dealings with Chinese customers in the agreement on a condition of the right of known or unknown? I really don't know, and redemption the proper form of the action is certainly cannot assume it. So the mortgage foreclosure instead of an action on the agree- here' does not determine the extent of the ment. It is set merely that because the liability, and by the agreement defendant agreement ways that the compradore agrees to simply covenante to pay the liability under the piỳ, what is for the time found owing under mortgage; therefore the liability in Teft in the the mortgage therefore the mortgage procedure air. If then, the agreement is ineffectual to for finding out what is due under the mortgage charge the defendant with any actual or deter must be adopted. It goes much further: It is mined liability, and if there is no personal GUILLERM ELECO, the Filipine washerman that this part of the agreement is practically covenant in the mortgage, nor anything in the from Cavite who was caught in the act of assiste useless as a clause importing of itself any pre combined documents which can be construed for the Chinese mayordomo of the Charleston cita obligatton'; that nothing can be found thin a periopal covenant the only remedy to smuggle opium ashore from the craiser owing under the mortgage, as there is no per, which, the plaintiff has is that which the while she lay at anchor within the breakwater sopal covenant, but that the result of it is to mortgage gives him against the property at Manila was on 18th instant sentenced leave the remedies under the mangago pro which he has taken as security; and there to alxmonike', imprisonment and a fins cisely as they are to be found in the mortgage: fare the proceeds of the property become of P300. The oplum was ordered to be cone that is to say that if this condition for redemp. the limit of the compradore's liability.ficated. During his trial Elsco testified tion is not complied with, the remedy and the What is so extraordinary to my mind that the mayordome gave him the tier of the only remedy is provided by the mortgage it. In that security being inlanded to be taken for drug to take ashore for him and helped him to nity for this complicated piece of conveyancing | sulf, which is foreclosure; and that therefore the fatalment of the forit stoms to carry out what I will assume to the remedy in the absence of express covenant pradors, as surety of
by what is very manifestly obscurs to pay the actual ampont, of the losses is the liabilities -
་་
Thess mailers disposed of, it is clear that the action must rest narxpress agreements and in order to prove this two documents were put in of even date goth Taauary, 1902. A mortgage of certain leasebold property by the defendant to Mr. A. J. David, whom for convenience.I will describe as mortgages on behalf of the firm David & Co., and an agreement between the defendant and the firm, by which an amount of $55.00 was deposited by way of further securi. ty with regard to the mortgage, the form of it one of the partnern being the mortgages and not the firm—I must confass scams to be pecu: Tier: in order, however, that so technically should stand, in the way of the determination of the actual rights of the parties Isoggested that Me, A. J. David should be added as plain tiff in the action. This seem to me to be at least advisable, as although the agree. ment in the d-cument sued on, the most kage figs at the betion of the action by reason of the Cross-references between the two documenis. Now with regard to the, me thod by which the Agreement has been efficted, I am bound to say that I cannot see the neces
caso le limited to the amount of the security the supposed
triake obrtaja i takar,” Tho!*cuses and books throw
the ameni
Buying
months sight L/0.....
791,
82
t
6 months' sight L/0. gå days' night fan Francisco & New York, d
months' sight think do. Na
2
30 days sight Sydney & Malboome.....1.8
months' night France ....................... 2 161,
1.761 21
6 months' sight 4 months' sight Germany Bar Silver....
Bank of England to ...... `arereign ....
'No Claims 'will be admitted after the Goods have left the Godowns, audall Goods remaining undelivered after the 29:h instant will be subject to rent. AR NGA golf z
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a be bad in a baskets: No rire Insurance but bec There were in all 55 pounds or as kitos of the
“Bill of Lading will He stated that the Chinaman told him omething that
ked and bla
'ATHERLEIGH; CONDUIT Roan
A HOUSE is WOND-WHI-CHONG, ROAD. A HOUSE in Ripon Terrace LAVADOS OFFICES in YORK BUILDING,{ GODOWNS PRATA EAST BLUB ⠀ BUILDINGS, Bad No. 168, Des VOUS ROAD went to the Hongkong Hotel;; FLATS in MOXETON,TELEACE,
DES VUX-RO/
curity light on the question.... the
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