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H4.1. Dily Prasis 6/14/1
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TATEM 21. HOW ELLA
The action was continued in which John Tatem sued Frederick Howell, chief bailiff of the Supreme Court, for au account since 24th September, 1905, of the receipts and disbursements of the defendant in respect of the plaintiff's business of a butcher and com- pradore carried on under the style of the Hongkong Butchery, and for a receiver.
Mr. M. W. Slade, K.C., instructed by Mr. J. H. Gardiner, appearod for the plaintiff, and defendant was represented by Mr. Eldon Potter, who was instructed by Mr. C. E. HI, Beavis (of Messrs. Wilkinson & Grist).
Mr. Potter, in opening the case for tu defence, said the plaintiff admitted that the books were kept in the shop where he could go and inspect them. Further, he himself kept an account of transactions of the Hongkong But- chery of which it was necessary to keep an account.
The only matters of which an account ought to be kept by the plaintiff were the sausage and corn beef transactions, and that account was kept systematically from February 1st, 1906, till January, 1907, in the plaintiff's own handwriting. So his Lordship would see that the plaintiff was incorrect when he said that Mr. Howell had the sole control of the accounts. On the statement of claim Mr. Potter hoped to show the Court that plaintiff had not given evidence sufficient to establish a case. It was said in the statement of claim that the defendant falsely and fraudulently represented that the business was not paying. There was a direct charge of fraudulent misrepresentation. There Was no beating about the bush or ambiguity. It was put down in cold print. But there was no evidence before the Court to support that allegation. At any rate the plaintiff himself had not been able to allege any facts which supported it. A plaintiff in a case of this kind could always go into the box and say he believed that defendant's statement was untrue, but that was not sufficient.
His Lordsbip-He has produced an account. aut.
Mr. Potter said there was the allegation of the plaintiff that Mr. Howell fraudulently misrepresented things to him, but there was no evidence to support it.
His Lordship-There is the evidence that the books were kept badly. What it is worth is another matter.
Mr. Potter-I will accept that position for the sake of my argument. Even if the books were extremely badly kept that is not evidence to prove to any Court that the defendant fraudulently misrepresented things.
His Lordship-If a thing is not true it is fraudulent.
A thing
Mr. Potter-With great respect. may be untrue and may be as far removed from fraud as the North Pole is from the South.
His Lordship-If the books were badly and wrongly kept that is some evidence.
Mr. Potter-There is no evidence that the books were badly or wrongly kept. If there was the plaintiff admits the books were kept by an accountant. I am told he is dead now, That is one of the disadvantages of bringing stale claims. How can it be said that Mr. Howell is responsible for accounts kept by the accountant?
His Lordship-We can have that argument
after the case is over, but not now. there is a caso.
I think
Mr. Fottur-Your Lordship holds there is a case of fraud ?
HisLordship-There is a case on the pleadings to go to the jury. There are facts given in evidence which if proved substantiate frand.
Mr Potter-It must come to this, that there is evidence that the defondant falsely and fraud- ulently represented that the business was in a bad way and that he falsely represented that the plaintiff owed him a sum of $1,400 edd.
His Lordship-There is a case on the plead- ings. If I go farther it is tantamount to saying that Mr. Howell has been guilty of
frand
Mr. Potter-I think it can only mean what I say. It must mean that if Mr. Howell did not answer the case he would be found guilty of fraad. What evidence is there of the allega- tion that he persuaded the plaintiff to give up the management of the business and take the post of steward and parser on the Pelican.
His Lordship-I don't want to cut you short, but there is evidence given by the plaintiff to support the whole of the statements made in the statement of claim, and I should not dream of deciding this case without Mr. Howell in the box.
Mr. Potter said he did not for a moment desiro to keep Mr. Howell out of the box, but be had to do his duty and as he bad done it he would now pass to the statute of limitations. This was an objection which he submitted ought to bo fatal to the plaintiff's case; that although the defend- ant had specifically pleaded the statute of limita- tions the plaintiff had not alleged by way of reply anything to take the case ont of the Statute. That was sufficient to put an end to the case. They had it admitted in evidence that the business was closed definitely on Jan- uary 4th, 1907, and on the face of it an account of a business closed in 1907 was statute barred, whereas this action was brought in 1904. I he only finding open to the Court if the plaintiff succeeded was that Mr. Tatom was the sole proprietor of the Hongkong Batchery Com- pany.
His Lordship-I don't think you can say that, because the relationship between the par- ties was such that it might have been a partuor- ship in law.
Mr. Potter-There is no allegation of part- nership. If there was, we had a right to terminate the partnership in January 1907. Proveeding, Mr. Potter said that this case was statute barred on the face of it and the plaintiff was driven to allege fraud to avoid the statute. If there had been aay partnership between Howell and Tatem in law there would have been no neces- sity to have alleged fraud or anything else, and Tatem when he came back in 189 could have brought an ordinary action for account if he had chosen. But he had not chosen, so he was driven eleven years afterwards to bring his action and to allege fraud.
in
the
His Lordship-When did he return in fact P Mr. Potter-In 1899, and he has sworn that
that year
he knew as much about case 35 he does now. Proceeding, Mr. Potter said the plaintiff hed ad. mitted that in 1899 he knew the business had been re-opened. So when he came here then he knew he was defrauded. In such circumstances Mr. Potter submitted that the Statute of Limitation commenced to run against him from the time when he knew he Was defrauded. In &
case of fraud the statute never against n man until he had discovered the fraud or until he might have discovered it if he used reasonable diligence. Plaintiff admitted that he know of the frand in 1899 and that being the caso be had stood by for nine years and done nothing, and so was statute barred.
Evidence was called and the hearing was adjourned.
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