Hongkong Daily Press of 8/4/11-
SUPREME COURT,
Friday, April 7th.
IN ORIGINAI, JURISDICTION. BEFORE HIN HONOUR IR FRANCIS PIGGOTT (CHIEF JUSTICE),
TATEM v. HOWELL.
The action was continued in which John Tatem sued Frederick Howell, chief bailiff of the Supreme Court, for an account since 24th September, 1905, of the receipts and disbursements of the defendant in respect of the plaintiffs 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.Ü., instructed by Mr. J.H. Gardiner, appeared for the plaintiff, and defendant was represented by Mr. Eldon Potter, who was instructed by Mr. C. E. H. Beavis (of Mossra, Wilkinson & Grist).
His Lordship said he thought the Statute of Limitations did not apply to this case, and that the plaintiff was not estopped. The question was a somewhat complicated one, and in the event of judgment going a raiust the defendant an appeal could be taken on that point.
Mr. Gutierrez, accountant, was called to give evidence with regard to the books,
Mr. Potter, in the course of the cross-examina- tion, said he would have to ask for an adjourn. went to go into the books. He could not lat!
the suggestion rest that Mr. Howell was guilty of fraud, and that the business business at the end of January.
was a solvent
His Lordship-I think I must hold that the cross-examination is finished, and ask you to open your case.
After the plaintiff had been recalled and further cross-examined, his case closed,
on
Mr. Potter, in opening the defense, said it was significant that a case of this nature should have come into Court after a lapse of fourteen years. Apart altogether from the question of legal bar by reason of any statute the Court was, as a rule, suspicious of a case of this kind which was brought after a long lapse of time. And more especially was the Court suspicions of such a case when that caso was--as he submitted this case was founded serious allegations of fraud, Because, al- though they had been told by Mr. Slade that this case was not founded on fraud, still, he did not think that position was maintainable when cue read the plaintiff's pleadings. The case was frand from beginning to eud, and it was a case of frand which, he submitted, had failed utterly, Not one jot of the charge of fraud preferred by i the plaintiff had been supported by cogent evi- dence. Even that morning it had been proved, he thought conclusively, that any representations mado by Mr. Howell with regard to the position of the business, so far from being fraudulent and uutrue, were absolutely true. Hedid not think his Lordship could have any doubt at all now that at the end of the first four months' trading of the Hongkong Butchery there was a heavy loss, and that without taking into account one cent of the money which had been advance by Mr. Howell. That was proved by the books, and if there was not a book produced he thought the facts of the case were such as to show that the business could not have been anccessful at the end of January, 1896, because at the beginning of that mouth the plaintiff admitted that he negotiated and arranged with Yeung Chung to take the business over, and what commission he was to get on it. It was absurd to suppose that the plaintiff, if the business was a really solvent one, would have willingly handed it over |
to a compradore when he might have made in-
finitely more by keeping it himself. The plain-33
tiff's case as first presented was-Mr. Potter did not know whether it was still-that the plain- tiff had handed to Mr. Howell the accounts; that he had entrusted to the latter the keeping of the accounts. He thought Mr. Tatem's evidence was meant to induce the Court to heliove that he (the plaintiff) had nothing to do with the accounts, and that even f he had wished to, he could never have secu them. When giving bis examination-in-chief plaintiff did not mention one word with regard to the cash book, or the ledger, or the other account books, or even the account book be kept himself from February 1st, 1896. Fut it was now clear that these books were kept in the Hongkong Butchery, that they were kept by an accountant paid by the Butchery; that they were immedi ately under the control of the plaintif himself; and that if he had wished he could have seen them at every moment of the day. It might be that he was such an ignorant man that he could not have understood them, but he did not display such appalling ignorance in the box. But even if that was so, it did not justify him in assuming a position which, to say the least of it, was misleading--to say that he was debarred from seeing the accounts and could not have known how the business was going on that he had to rely solely on Mr. Howell's word; and that that word was untruthful and fraudulent. If his Lordship had no doubt regarding the financial position at the end of January, 1896, he would readily understand why this business was taken over by Yenng He would also readily understand Chung, why Young Chung gave up the business in January, 1897. Because, if Mr. Tatem was not able it make it pay while working it, it would have been difficult for Young Chung to bave made a fortano considering he had to pay three per cont. out of the gross profits of the business, which up to the time of his taking it over had been run at a large loss. At any rate it was clear that Yeung Chung gave the business up early in January, 1897, and Counsel thought it was proved beyond all possible doubt that the business was closed in that mouth, not because of false and fraudulent representations made by Mr. Howell, but because Young Chung would not carry it on Amy longer. That was admitted by the plaintiff.
If that
business was closed on the 3rd
;
or 4th January, and the plaintiff said it was, and if the plaintiff owed Mr. Howell a sum of $1,400 odd. or any sum, then it seemed to Mr. Polter absolutely irrelevant to this case whether Mr. Howell had any interest in the Hongkong Butchery Co. The plaintiff's case on his plead- ings was that his own business was never closed; that it was never sold; but that in some way or ether it was carried on under the new name of the Hongkong Batchering Co. Mr. Potter submitted thit the case must fail now be- cause of plaintiff's own admissions. He failed to see what the Hongkong Batchering Co. had to do with this case if the plaintiff's business was closed, and it on the cloning of it there was a debit balance against him. However, he had chosen to say that Mr. Howell was the Hong- kong Butchering Co., and that this new Com- Pany was really his own business, and he asked for an account of it. On the pleadings, if the plaintiff recovered in this case it could be only on the basis that the Hongkong Butchery Co. was his sole property. When the plaintiff wah cross-examined as to his reasons for having given a power of attorney to Mr. Watkins, he did not give a very satisfactory answer. What he said was, he gave it because Mr. Howell
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