1930-03-24 — Page 1

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No. 27,444 HONG KONG,

\BLISHED

1846

MONDAY, MARCH 24, 1930.

TO-DAY'S DOLLAR. — The closing rate of the dollar on demand, to-day was 1/6 5/16.

PRICE $3.00 Per Month.

DoWalm

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спо

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13, Queen's Road Central.

CHATER ESTATE IN GANDHI'S ADVICE TO OVERLOADING CASE FATHER AND SON IN REGISTRAR'S POWER BIG BLAZE ON HUDSON

DISPUTE

PAYMENT OF

LEGATEES

INTERESTS TO

DECISION ON APPEAL SOME LEGAL TECHNICALITIES THRESHED OUT

The Full Court of Appeal, presided over by the Chief Justice, Sir Henry Gollan, and the Fuisne Judge, Mr. Justice J. R. Wood, gave judgment this morning in the appeal action in which the disposition of the estate of the late Sir Catchick Paul Chater, Kt., C.M.G., was disputed.

MOTHERS

NOT EXPECTED TO NEGLECT THEIR CHILDREN

DISOBEDIENCE CAMPAIGN

Maximum Penalty on a Master

LAW MUST BE OBEYED

LAW SUIT

QUESTIONED

A PECULIAR ASSIGNMENT OF COURT OF APPEAL GIVES

JUDGMENT LAND

RIVER

TWO PIERS AND EIGHT FREIGHT CARS DESTROYED

LINER'S NARROW ESCAPE Before Comdr. G.

AUTHORITY EXCEEDED F: Hole, "NO BENEFICIAL INTERESTS" R.N., at the Marine Court this!

Judgment was delivered this Hoboken, NJ, Yesterday. morning, Mr. Sakolaff. master' of At the Supreme Court, this Buva, Yesterday,

Damage estimated at $1,000,000 Yue Loong was charged morning, before the Chief Justice, morning by the Full Court of Ap-' Gandhi has arrived here from the as. Jambusur. Replying to an enquiry with having overlonded his ship Sir Henry Gollan, Li Po-Iwai, peal, in an appeal case heard on was done by a fire which destroy- Healios Li Kan, sought to recover March 3, when it was averred that ed two piers bolonging to the by A prominent social worker, at about 4pm. yesterday.

from Tsang Chuen and Li Nga- the Registrar of the Supreme Lampert Holt Line, eight freight Miss Chatto Padhyaya, Gandhi pleaded "not guilty."

Boarding Officer A. G. Cooke ching cartain property with bulld-Court, Mr. C. D. Melbourne, had cars and a great quantity of mer- said that he neither desired nor

exceeded his authority in respect chandise on the night of March Bank of the Hudson expected women to neglect their stated that he boarded the vessel ings thereon.

who could at about 4.10 p.m. to tell the master Mr. Eldon Potter, K.C., and Mr.of an action brought against the 22 on the children, but women

River opposite New York City, 13,000 ton Lamport Holt satisfactorily arrange for the care that he was overloading, but found F. C. Jenkin, instructed by Messrs. lessee of the Fo Hing Theatre.

The Hasting, Denny and Bowley, ap- The defendant-appellant was Ma The of their children should join his that he was not on board.

the campaign. Miss Chatto Padhyaya load mark was. submerged one foot. peared for the plaintiff and the Tau-nam, who was represented by liner Voltaire and the freighter

was represented Mr. F. C. Jonkin, and the plain-Elsiel were threatened by proposes to tour Bombay Presi- He then sent for Mr. D. G. Cairns first defendant

was Chai Wal, flames, but finally they were tow- dency and enrol two sets of to verify the fact.

by Mr. C. G. Alabaster, K.G., in-tiff-respondent yolunteers, firstly for Boarding Officer D. G. Cairns said atructed by Messrs. D'Almada and landlord of the Po Hing Theatre, ed to 'safety. The fire broke out on whose behalf Mr. H. G. Sheldon at the bulkhead under the pier. women

civil disobedience, and that he received Mr. Cooke's mes Mason, active

The cause has not yet been dis- Plaintiff claimed (a) a declara- conducted the case. secondly for propaganda work. sage at about 6 p.m. On arrival he

The appeal was against certain covered.-Reuter's American Sex- It is understood that Mrs. Gandhi perceived that the centre of the tion that he is entitled to equity

the first batch of 37 dise was about 12 inches from the ns against the defendants to two findings and orders made by the vice..

pieces of land, known as Section, Registrar who had been asked to will lend women volunteers from Ashramark

mesne profits and uue o lad.paint by cho muhann The defendant did not at first 6 of Section A of Marine Lot No. asssess what jand entrain to Bulsa whence they The parties in dispute were the official Trustee of Bengal (de-will proceed to Titel to defy the know whether he would make a 56 and Section L of Marine Lot damages had been suffered by the as outages and mesue prouvs.

taened to his unding, waren is daten plain statement or a statement on No. 63A, from the first defen-, plaintiff-respondent. salt laws.

The judgment delivered this eptember 1, 10, #statements oath. In the end he chose the dant's mortgagee, on an undivid fendant-appellants), the Hon. Mr. W. E. L. Shenton (plaintiff-respon-

Calcutta, Yesterday. I former.

ed moiety thereof; (b) For an as-morning by Sir Henry Gollan, and sowing 130 ms under wasn tais dent), and Mr. J. T. Bagram and Mr. E. Sadick (defendant-respon-

Meetings are being held all over Comdr. Hole impressed upon signment of the said moiety; (c) with which Mr. Justice J. R.

There are tea items in the state- Bengal to dents).

enlist võluntears for him that Hong Kong was a British Further or other relief; and (d) Wood, and Sir Peter Grain (Chief

Justice, H.B.M. Supreme Court, me H

J * WITA. the civil disobedience campaign. port, and that one of the laws that costs.

nase with the Shanghai) concurred was to the regard to a deposit of young men from ahould be observed was the law of

deant, and the Tipperah have already gone to overloading, and from his In his statement of claim, plain-effect that the Registrar had in p by the Mitenapore to offer to manufac-statement, he was found guilty tiff

to several items exceeded his autho-acientam appens against such fast declared that prior ture salt on the sea coast near of deliberately overloading his March,

1917, he

mentioned ang Rad aguilist most WAR thority. Contai sub-division. The latest

VI Tug kems on lue ground laat tne steamer. He was unfortunate not the Crown lessee of the lands enlisted volunteers include the

two to have had his owner in Hong mentioned above, and the

The text of the judgment was aegistrar nas entereu upon questions chairman and vice-chairman of

Deyona ne itics or the authority Kong, as he, too, would have re-buildings erected thereon known as follows:- the Municipality of Howrah, ceived a summons. The defendant as Nos. 18, and 20, Wing Kut By the writ of Summons in this conterred on him by the terms of thetare oruer of August 23, 1920, above action dated June 12, 1929, suburb of Calcutta-Reuter.

was fined $500, and was informed Gandhi's Taunt

reterred to. that that would be the penalty every

plaintiff claimed:--- Broach, Yesterday. time he was charged with overload- The fact that Sen Gupta, the Ing.

Mr. Eldon Potter, K.C., and Mr. H. G. Sheldon appeared for the appellant, Mr. C. G. Alabaster. K.C., was for the Hon. Mr. Shenton, and Mr. F. C. Jenkin was for Mr. Bagram.

TEXT OF JUDGMENT

In the Original Jurisdiction 1 decided as acting Chief Justice that "pending the appropriation of funds under Clause 12 of the deceased's will and pending the setting aside of speciße trust funds and pending the realisation of the de- ceased's estate. the testai que trust-or more correctly speaking their trustee- under clause 8 u), 8 (b) and K (e) of the deceased's will and clause & of the deceased's second codicit, were entitled to receive interim Income calculated as

from the date of the testator's death and were entitled further to receive from the net income of the estate for any one financial year after proper payments made, a sun not exceeding eight per cent, per annum upon the capital value of their interest.

ment, Court.

with liberty to apply to the

The decision of the Full Court was this matter was governed by that clause 7 of the deceased's will. Clause

A number

7 is a common form (to be found in Mayor of Calcutta, was sentenced precedents) designed by legal practi- to only ten days" simple imprison- tioners to defeat any application of the ment coupled with the statement by the Earl of Sir George Schuster, Finance Mem- rule. In "Howev. Darmouth" to the administration of ber to the Legislative Assembly, an estate. Its effect is to provide that that the Government had decided to net rents, profits and income from a testator's estate, derived at any time refer the whole question of the salt after his death, shall be classified by tax to the Tariff Board, in order the trustees in the accounts of the to provide the masses with the best estate as the income of the financial eatable salt at the lowest possible year in which they are properly ac price if the salt tax were abolish- countable, and, consequently, that the cd," has created the feeling in capital value of the estate, as existent Gandhi's camp that the Govern- at the date of the testator's death, shall ment's morale is breaking down. not be enlarged by any such accretion Gandhi suggested this at Buva of income, whether it be found to be when he regretted the fact that the aufficient or insufficient to meet the village elders boycotted him and claims of beneficiaries under the will

asked if they were afraid of the upon the capital fund. The cinae pro Government, which feared to arrest vides ulan that the entire proceeds of maximum

the realisation of any reversionary pro- him, although he was openly out to perty (that is to say, as well as every break the laws and was making other type of property) shall be ac-fiery speeches. counted as belonging to the capital fund only. The direction of the testator

it is to be noticed that I did not order that ther persons should receive actual cash payment of way given In my amount or at any given dude. judgment spoke merel, of "the rate of interest on which cestui que trust

calculate his

may

claim to income."

Other questions may still be raised upon this portion of the Originating Summons. The decision of the Court. was conded to the two points set out ahove.

Selection of Figure By selection of the figure, eight per cent, was at influenced by the con- sideration of the actual administration of this estate. I held that this rate was prescribed by the rule of Court made dated October 28, 1909, and under section 678 of the Code of Civit Procedure (which section is identical with Order 55, rule 64 in the English Practice).

Government Weaker? Gandhi asked if they could not contained in the clause does not fur- see from the sentence on Sen Gupta nish a method of distribution of the whether the Government VAS

income fund among the claimants there-stronger or weaker than in 1857 or to. It merely indicates that the funds from which claims upon capital and 1919. If the Government could not! claims upon income respectively made touch him while he was heading 80 volunteers, how could they arrest be satisfied.

him if he had 80,000?

Gandhi told the leaders from the

He con- Clauses 7 and 8 Clause 7 of the will must, of course, cluded by appealing to Hindus, be read in this connection with clause Moslems, men and women to join 8. Under clause 8 the testator directs without fear, because success also the trustees in the matter of the apmeant lessening the land revenue The authoritative precedents are to be plication of moneys from time to time burden. found in the following cases.-"In ro and ultimately appearing in the capi. Davy 1903) 1. Ch.64": "In Beech tal account of the estate as the pro- various provinces who were con- (1920) 1. Ch. 41," "Gabiny v. Gabbay ceas of its appropriato investment ad- (1023) 12. KL.R. 47.

vances and is completed. After de sulting him about his civil dis- These beneficaries were thus accord-ductions for specified purposes (and obedience plans, that if the Govern. income assignable in law to here reference may also be made to ment did not resort to imprisonment pecuniory Irgutees with operation from clause 13 of tie will) the trustees are but relied on physical obstruc- the date of the testator's death.

instructed to stand possessed of the ro-tion civil disobedience would be Commencement of Income mainder (herein collectively referred extended indefinitely-Reuter. Against this judgment the executor to as the residuary estate") as a fund Appealed. In the argument of the ap- peal no submission was made on behalf of the appellant on the question of the date of the commencement of the income

ed

for the purposes set out in the clause.

FAIR OUTLOOK

מקום

To-day's weather report from the Royal Observatory states: The anti-cyclone is central over S.W. Japan and the Sea of Japan.

Light variable winds prevail along the S.E. Coast of China and moderate to light monsoon over the N. China Sea.

Local forecast: N. E. or variable winds; moderate to light; fair.

Rainfall Rainfall to 10 am. to-day nil. Rainfall since January 1. 7.19 inches against an average of 5.30 inches.

Temperature and Humidity

The temperature and humidl- ty at certain specified centres o'clock this morning at 6 were:

Temp. Humid.

63

Hong Kong Macao

75

63

84

Pratas Island

71

90

Manila Amoy

75

83

58

94

Swalow Chefap

55

94

$4

74

Shanghai

62

97

J.P. CHARGED Alleged Possession of Opium

Street.

Plaintiff's Claim

On March 9, 1917, plaintiff under the name of Li Hung alias Li Po-kwai, executed a deed of as- signment of the said lands and buildings to himself under the of Li Kan, and also the second defendant as joint tenants. The second defendant, who al though being the son of the plain-: tiff, was not made aware of the: Assignment at the time.

name

Text of Judgment

(a) To recover possession of the Po Hing Theatre, Nathan Road, Yaumati;

qui in reached,

AL

It now becomes necessary to con- items in the statement, sier ine except in so far as any of them are to be (b) An account of rent in arrears; admitted by the delendant () Mesne profits;

rightly found against him.

Rent rayable Monthly. Item 1.

(d) For breach of covenant not to

make material alterations in

19

2 sum of

value I tho

or addition to the premises, $2,605.17 for tesne pronts due 18 By his statement of claim he respect of the rental alleged that by a lease dated Febru-premises between June 7, 1929, the The assignment purported to

6, 1929, and of February have been made in consideration Ary 5, 1929, the plaintiff let to the uate of the determination

defendant the Po Hing Theatre, ease of the payment of $10,000 to the Nathan Road, for a term of three August. 23, 1929, when the premises vacated by the defendpar. plaintiff as assignor. The money

of the

Was not, however, paid at all. Chinese years from February 24, were

The son of the plaintiff, haw-1929, at a monthly ront of $1,000 The datendunt did not contest this ever, possessed himself with the payable in advance and that the de-item before the Registrar nor does

of the assignment fendant had covenanted, inter alia,he dispute it now. knowledge

This is Item 2

a claim for ater, and on March 7, 1922, he not to make or allow to be made any wrongfully mortgaged or parport-material alterations or additions to $2,665.17 for the rent of seats, fic- ed to mortgage one equal undivid- the premises without the consent in tings and turniture in the Po Hing of and in the same writing of the plaintiff, and not to Theatre between June 7, 1929, the ed moiety lands and buildings to the first do or suffer anything whereby the date of the determination of the the sum of licence of the theatre might be lease of February 5, 1929, and defendant to secure

forfeited or suspended; and there August 23, 1929, when the plaintur $25,000.

was a proviso for re-entry in case obtained possession of the promises. of default in the performance of any As a matter of fact there was an covenant to be performed by the de-agreement between the plaintif and the defendant, dated October 5, fendant.

1928, for the hire by the latter of ali fittings, fixtures,

The case is proceeding,

•

Liable to Suspension

First Defendant's Dental First defendant denied that the not made second defendant, was aware of the assignment at the He further time of execution.

It is also alleged that on January tables, chairs, averred that he had paid the money for the mortgage to the 25, 1929, a licence to use the theatre furniture, and sundry articles on the the was granted by the Captain Superin-premises of the Fo Hing Theatre for second defendant, and that

had beneficlal tendent of Police on certain specified ja term of three years from the date second defendant Interests in the lands and buildings conditions which were known to the of the issue of a licence to the This agreement further by virtue of the assignment. First defendant and that in breach of the theatre. defendant further averred that the covenant above mentioned the de- provided for the payment of a rent second defendant was not the son fendant had made certain altera- of $1,000 for these fittings, though tions and additions to the premises it does not appear expressly to state of the plaintiff.

whereby the said licence had become whether the rent is payable monthly or otherwise; but in arguing as to Hable to suspension or forfeiture. his, but witness would not agree. On May 28, 1929, the plaintiff the validity of the claim in Item 2, Chinese R.O. 85 said that when alleges that he gave the defendant the parties appeared to treat this

notice to remedy the rent as payable monthly. he came up to the Po Tak wharf written

Registrar Wrong the luggage was already on the breaches, but, the latter having fall-

Mr. Jenkin argued that this Near by were some hotel ed to do so, the former gave notice

within the The optum case against Mui ground.

He and determining the lease on June 8, claim does not come Kwok-leung, described as a Justice coolles and the accused.

terms of the order of August 23,. (a) Possession of the theatre and 1929, and that it represents neither This fund is the residue of the estate. tenants in the residue with the cestui of the Peace in Singapore, was con- the previous witness practically 1929, and claimed:-

mesne profita por damages in res premises; I cannot

that any intestacy que trust under clause 8 (d). It fol.tinued before. Mr. R. E. Lindsall arrived together, from oppoalte This witness said he spoko

(b) Damages for the said breaches pect of anything arising under the lease of February 5, 1929, He emerges under this will after its pro- lows, therefore, that interest as such is at the Central Magistracy this directions.

of covenant; visions have been duly complied with, not payable to them and that they morning.

In cross-examination by Mr. firat, asking whose luggage it was,

doce not deny that the agreemen. The fund referred to in clause 8 is a may not invoke the Court rule of eight true residue something into which all per cont. interest for their advantage., Strellett, for the defence, Chinese and accused replied that it was

of October 6, 1928, was subsisting at all material times or that the otherwise inalloted capital of the After the delivery of the judgment of R.O. 9 admitted that the first per- his, at the same time producing a visiting card his Judgment here under appeal) must

plaintiff might be entitled to re therefore atazu. The present appel estato is to merge. It is true that the Full Court the parties conferred son to speak to the accused after an envelope and lant, the trustee for the boneficiary otherwise unalloted capital of the but without reaching agreement, and

By his statement of defence the cover this amount of $2,655.17 in under clause 8 (d) of the deceased's will funds created by clause 8 (a), (b), executor availing himself of the the luggage was put down was from his breast pocket. Accused may net here be allowed to re-open the (c) or (d) of this my will "but this liberty accorded by that judgment to C.R.O. 30. Witness was three feet claimed the card to be a search consideration of this point. And in language refers to the sub-divisions of apply to the Court, applied accordingly away from the luggage, behind ac-exemption permit, saying: "It was defendant denied or excused most of a properly constituted action, bat cused, but did not hear what was signed and given to me by a J.P., the allegations contained in the he contends that this sum cannot exemption statement of claim, but I need not be held to be either mesne profits deed, the matter becomes academic the residuary estate referred to into the learned Chief Justice.

On this application it became neces-said because the conversation was and I am entitled

go into the statement of defence be- or damages within the terms of merely if the final submission of his clause 8 and not to that portion of the

Photo Nequired

cause on August 20, 1920, «sum-the order of August 23, 1929. I learned counsel as to the rights Inter estate regarded as a whole. Clause 12 sary to interpret clause 8 (a), (b), in very low tone. During the con- from search,”

reads. "8 (a), (b), (c) or (d)," not (c) and (d) of the will in order to as-versation witness did not see accus-

Witness told him that the pre-mons was taken out by the plaintiff agree with Mr. Jenkin's argument, certain the mutual relations of the ed feel his pockets for keys. "b (a), (b); (c) and (d).”

per permit must bear a photo, for "judgment by consent In the The agreement of October 5, 1929, This residuary estate is by clause 8 beneficiaries thereunder. The learned has already made payments to these definitely set apart and assigned for Chief Justien under clauses 8 (a), (b) Asked about the production of and insisted on searching the lug- terms of the endorsement of the is altogether independent of the baneficiaries, calculated at four per

the benefit of certain persons who are and c) adopted the view that the the Hon Dr Kotewall's card, wit gage. C.R.O. 9 anpported witness writ of summons in this action." lease of February 5, 1929, and I Accused then went to This summons was endorsed by the do not see hów, in an action to trus residuary legatoes and are en funds created must be classified us! cent. per annum upon the maximum value of their prospective fund, and titled within the terms of the clause to pecuniary legacies and must therefore neas said that besides the card in this. has made these payments upon an ac- the benefit of the corpus and of the in bear Interest again within the Rule of Accused produced an envelope phone to Dr. Kotewall, and on solicitor for the plaintiffs as con- recover possession of premises for Court at eight per cent. per annum, from which he took out a piece of his return C.R.O. asked accused Banting and when the summons came breaches of covenant appearing in count prepared as' from the date of the come of the residue of the estate. testator's death. The schems for ad-

He made the order accordingly, direct paper with English writing on it to open two or three articles for on for hearing before me on August the lease and mesne profits, the "minitration - of the income submitted

ing that this amount may become pay. He claimed this to be a search examination and then accused said 23, 1929, I made an order, by con- hire of fittings covered by a separ abis in respect of any your subject to exemption permit. Witness told that he had no keys and claimed sent, which was drawn up and en- ate agreement can be recovered

to be credited to these beneficiaries. My original judgment on this point (as the

learned Chief Justice has remarked in

50 of the beneficiaries under clause 8

is accepted by this Court. With the

consent of this appellant, the executor

find

Method of Distribution

No question arises here as to the

to

I now come to the second division of under Section 673 of the Code of Civil

Dr. Katewall's Card

(c) Mesne profits from June 8. 1929, until delivery of posses Bion.

Allegations Denied

I am of opinion, therefore, that

wrong in in

to this Court on behalf of the appellant | division of the corpus. In the Origin the sufficiency of the income fund of accused that, withough he could that some of the luggage had beentered in the following terms: "It either as mesne profits or dam ut the close of the reply of his learned. atlag Summons the Court is anked to that year, but that consequently upon Lot read English he could tell entrusted to him by a friend nam is ordered that the plaintiff is agen, counsel contemplates a credit accruing lay down the method of the distribu- the Jesnt of Mr. Bagram, who is that it was not a search exemp-ed Lam to tranship,

entitled to judgment for the recovery these beneficiaries as from that tion of the net income. The Full Court

decided that clause 7 governs this mat named in these proceedings as repre- tion permit because such permits Witness then sent a foki to 'phone of the premises in the endorsement the Registrar was

sentative of the persons interested in Second Division of Apperliter and that the rule of Court made these funds, to receive seven per cent, usually bore the photo of the bear, to R. O.. Ward, and in the interval of the writ of summons herein men- cluding in his finding the sum er and the Government, stamp accused obtained permission again tioned, an enquiry by the Registrar mentioned in item 2 as mesne pro in Heu of eight per cent, the judg

In my plaintiff in these proceedings. the appeal by the executor, against my | Procedure has no application to itment should be formally drawn up for Accused then put it back in histo phone to Dr. Kotewall because as to mesne profits and damages Bite or damages recoverable by the

No Justification #original Judgment that relating to The Fall Court might have dealt in this lower rate of Interest. Adding pockets the first time be did so the latter and costs to be taxed."

the rate of Interest. The real subject in detail with the implications of this matter favored is the amount of in desfalon, but on consideration fts in Object of Appeal By the Magistrate: At first, ac was still in bed. opinion, it is under the terms of

The present Appeal has been brought cased did not claim the card as a When B. O. Ward arrived accused this order of August 23, 1929, that Item 8. This is a claim in rês. so witness the enquiry would have been held pect of the costs to which the come which should scerus in the exeon- port becomes clear. In the opinion of

went to the hotel to fetch him. He

plaintiff was put in defending.cer- The Ten Items tors account to the credit of these the Full Court this certat que trait to reverse this judgment by the trustee search axemption permit, but at had not yet returned,

for the persons faterested under clauss er be

found him with C.RO. 28 In the The premises were vacated by the tain proceedings brought by the upon this

curridor of the third toor and defendant on August 23, 1929, and Police for breaches of the condi Brought them back with him. the Registrar held an enquiry and

Continued on Page 1) The case was again adjourned.

The Full Court revened, under clause-8" (a), (b) and (e) of

(a) of the wil With respect," it the will and clause 5 of the second codi was to me that the judgment under

are not in the position of pecuniary

Leichtern Unt, are tenants of

residio of the estate and argi

I found that the sum of $1,886.27 was