1913-07-18 — Page 5

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The LoLo

YEARS.

SUPREME COURT.

Thursday, July 17th.

IN ORIGINAL JURISDICTION. BEVORS HI HONOUR SIR WILLIAM RESA DAVIES (CHIEF JUSTICE).

GASKELL O. WRIGHT AND HORNBY. W. H. Gaskell brought netion against J. F. Wright and T. W. Hornby (trading aa Wright & Hornby), to recotor the sum of $2,362.43, being the balanco duo to him from the defendante in respect of money deposited with the defendants, and shares bought and sold by the defondante as the plaintiff's brokers

Mr. F. Jest n, instructed by Mr. !. W. Goldring (of Messrs. Goldring & Bu-ppeared for the plaintiff. and Mr. M. W. Slade, K... instructed by Mr. A. G. H. Jackson (of Messra, Julian), Stokes & Master), represented the defen donte.

The statement of defence set forth that! E TO-DAY AS IN in the years 1911 and 1912 plaintiff em

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ploved defendants as brokers to purchase for him cortain shares in public com panies, and in accordance with the plain- tiff's instructions defendants contracted to purchase the said shares, and on plaintiff failing to pay for the same on the several due dates, pail for and took delivery of the said shares. Defendants denied that they owed the plaintiff the sura claimed or any sum, and said that the plaintiff owed them 2408.79 as shown by particulars filed.

A counterclaim for this amount was fileset

The defence to the counterclaim stated that the alleged, debt of $408.79 arose under or in respect of a contract or agree.

void null and rendered

hy Ordinance No. 5 of 1891. Such contract or about agreement was made on

meu!

OT

September 1st, 1911, for the purchase of 30 shares of the China Sugar Refining Co., Ltd., and did not set forth in writing the numbers of such shares.

Mr. Jenkin said he had considered the plaintiff's claim in this matter, and had advised him that on the claim he had no SEEDS therfore he proposed not to proceed with the claim, but to defend the counter.

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case and would be ill-advised to go on,

claim.

Mr. Slade asked for judgment on the clain, which was entered. He then con- tended that judgment on the counterclaim

work follow an a matter of course.

Mr. Jenkin said if Mr. Blade was entitled to anything on his admission he would get it.

He did not propose to proceed with the claim, as it was for a balance due to the plaintiff in respect of money deposited for shares bought and sold, and plaintiff had set out an account

by which he showed a balance in his Isvoar. Defendants in their defence said that the account was not correct, but that the correct account was one attached to the defence; and their account showed a balance in their favour of $408. and they counterclaimed for that amount. Counsel's answer to the counterclaim was that if the 8408 arose out of a void contract, and therefore that sun was not clues. It did not follow that because he was unable to proceed in law for the recovery of $1,500 clairacd, that the defendants in their turn were entitled to claim $408 His Lordship-First of all, there is no doubt they are entitled to judgment »ni the claim!

in another transaction.

Mr. Jeukin-On the chairu. His Lordship-Now then, as regards the counterclaim!

Mr. Slade referred his Lordship to the claim, and said he would see that the

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Mr. Jenkin-Well, I have never heard of that as being a little below the bolt." Continuing, Counsel made an application that his defence to the counter-claim should be made to apply to the whole of the contracts, and not only to the one. His Lordship would be inclined to grant it not out of sympathy with the defendant, but because of the description were against of the contracts, which public policy, and which had been stated to be null and void by the Ordinance,

one often set up under the Company Act. under or in respect of a contract or agree-defence to the claim, said his defence was His Lordship said there was also the ont rendered null and void by Ördi- nance No. 5 of 1891. agreement was made on or about Septem- Statute of Limitations. ber 1st, 1911, for the purchase of 50 shares of the China Sagar Refining Co., Ltd., and did not set forth in writing the rum bers of such shares. The defence to the counterclaim specifically referred to a contract or agreement, dated 1st Septem- ber, 1911, and said the balance arose under or in respect of that contract. Counsel then referred his Lordship to defendants' reply, and said he abandoned the claim for the reason that it was for the return of money paid under a contract which was null and void, and his opinion, rightly or wrongly, was that money so The case paid could not be recovered, was quite different where a person who had entered into a contract null and void wanted to recover the money. Then the said that the balance arose under the law assisted in defending such an action. first item in the account. It might be It did not assist personally, but on the that he was quite incorrect, but he might ground that such contract was against as well have pleaded that the balance was under or in respect of contracts or agree- public policy asked Mr. Stade to arguements rendered null and void in so far as

His Lordship

they did not contain numbers. The de on the Ordinance.

Mr. Slade contended that the Ordinance fendant was in no way embarrassed by Rather than that the defendant had nothing whatever to do with the mat that." ter in dispute in the slightest degree, and should succeed on the counter-claim the account Ead no reference to the merely because plainiff pleaded that the These were actual trans balance referred to the first item, he Ordinance. actions, actually completed, the shares should be allowed to say that it referred being actually bought, delivered, and the whole of the contracts. sold. The position of the plaintiff was

His Lordship But you have not relied on the Ordinance whatsoever. You have made payments on account of them, and now. you take up this as a last resource.

Mr. Jenkin said that in his pleadings

Mr. Slade said he should certainly

strongly oppose the application, seit would be impossible for him to deal with

is: He instructed his brokers to buy shares, they bought them on his behalf; because he did not have the money they. paid for them themselves, and then when I won't they wanted the money he said,

+ contract pay you because you made which does not come under the Ordi nance."

"His Lordship-I am not saying any-

Mr. Jenkin said the whole point was whether or not the contract which Mr. Hornby entered into had the numbers of the share on it. If they had not, then he was prepared to argue on that one point stood they knew.

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Mr. Jenkia protested against Counsel; leading the witness, Mr. Hornby Mr. Jenkin said had already answered that question ic another form in cross examination. His answer clearly showed that on the 30th June he charged intereste on the same items as those on which he Mr. Slade It is clearly and obviously charged interest on the 31st March. wrong.

Mr Jenkin-Perhaps Mr. Slade will go in the box. (Laughter.) I say that Mr. Hofpby said it, and now you nee Mr. Slade It seems to me to be rather saying that it is wrong

childish.

His Lordship (to witness)-Were any arrangements made between you and Mr. Gaskell as to the way in which the ne- counts should be kept 3-None whatsoever, Did be bring you the 38,000 by band or send it by letter?-It was given me by cheque.

Did he say at the time whether the made in discharge payment specifically of any items?--No, he did not say anything to that effect.

Did you understand it was to be paid He into a general account, or into a specific account-Into a general account." had no separato accounts.

was

Mr. Jenzin said this point had been taken somewhat further by his Lordshir and Mr. Slade. As soon as Mr. Hornby said that, after these two credits, he nevertheless did not regard the $1,000 as being wiped out, he sat down, and cross- It the witness' examined no further. own statement was not strong enough then he must resume. He sat down on sidered his admission as being sufficiently the understanding that the Court, con-

strong.

It

Mr. Slade's said his friend's question was an ingenious one, and would hare caught any layman in the Colony was perfectly correct that the $1,000 WAN not wiped off. It was in the books and went on to the very end.

Mr. Jenkin said that as Mr. Horaby apparently misunderstood his question, it show hi exactly what to Counsel wanted him before him to ask him quite a number of questions, and he also wanted his books,

D

'S

1629-3

NOTICES TO CONSIGNEES,

"' MOGUL” LINE OF STEAMERS.

NOTICE TO CONSIGNEES.

The Steamship" LENNOX."

FROM GLASGOW, LIVERPOOL AND

STRAITS. YONSIGNEES of Cargo hereby informed

that all Goods are boing lanctos at. their risk into the Godowns of flolt's What at Kowloon, whence and/or from the wharves delivery may be obtained.

Optional Cargo will be forwarded unless notice to the contrary be given before,

No Claims will be admitted after the Goods and all Goods have left the Godowns, remaining undelivered after the 21st inst. will be subject to rant.

All Claims against the Steamer must be pre- tented to the Undersigned on or before the lith prox, or they will not be recognised.

All irokes, chafed, and damaged Goods are to

bxamined on the 21st inet,, at 11 A.M. bo loft in the Gudowa, where they will be

No Fire Insurance has won effected. Bill of Lading will be countersigned by

DODWELL & Co., LTD.,

Agents.

1879

Hongkong, 14th July, 1913.

GLEN" LINE OF STEAMERS.

NOTICE TO CONSIGNEES.

FROM ANTWERP, MIDDLESBRO', IMMINGHAM, LONDON AND SINGAPORE.

HE Steamship

*GLENBOY,"

Captain B. W. L. Holman, having arrived from the above Ports, Consignees of Cargo are hereby informed that their Goods are reing landed st their risk into the Godowns of the Hongkong Limited, Kowloon, and stored at Consignees

account started with $1,500 paid in by thing about the virtue of the pleadia only. They had discovery, and he under was necessary for him to see his books and and Kowloon Wharf and Godown Company,

The

Gaskell, and in the end showed a balance of $2,352 owing to the plaintiff only really material difference between the account which the defendants said was correct and the acenunt set out in the particulars to the statement of claim, was that the latter account began wrong It began with the payment of $1,500, whereas it ought-to-have begun, with the purchase and the sale of 50 Sugars, on the udgment for the defendants claim admitted that the sale and purchas of 50 Sugars was properly brought into the account.

I am only asking about the bare law. The whole peint is as to whether the Ordinance does apply.

The

Out of the

The Chief Justice said he did not think he would be justified in extending the defence to the counter-elain at that stage.

Mr. Hornby, who was then called, at the suggestion of his Lordship, said the plaintiff took delivery of the Shanghai Docks, and $8,000 was placed to the account Witness was crass-examined at general credit, and not to any specific length by Mr. Jenkin, who asked him how he made out the interest of $259.28. Witness explained, and said he reckoned the interest out himself. It was worked out on the 7th January of this year, when His partner and it was a book entry. himself agreed to send an account, so that they could get the matter finally fixed up. It had been running for about two years forward.

Plaintiff bought shares, and could not take them up when they arrived, and the firm had to carry them. Witness and Mr. Wright agreed to carry them at the rate

RICBNÍ

Mr. Slade observed that his friend was morely wasting the time of the Court at the defendant's expense.

His Lordship devided that Mr. Hornby should be recalled, and the hearing was then adjourned.

IN SUMMARY JURISDICTION. BEFORE THE PUIBNE JUDOR (MR. J. H. Keur).

-- CHORS-CLAIMS FOR DAMAGES E. Lauritsen, motor garage proprietor, sued the Exile Garage of Des Voeux Road to recover $310 for damages caused to his motor-car No. 27 by negligent driving of deferdants' car No. 9 by defendante The Exile Garage brought a servant. cross-action to recover 8565 for the same causs

risk and expense.

All broken, chafed and damaged Goods are to be left in the Godowns, where they will bo All Claims must to presented within FIFTEEN examined on FRIDAY, 18th inst., at 10 AM, DAYS of the Steamer's arrival herr, after which date they cannot be recognized.

No Claims will be admitted after the Goods have left the Godowns, and all Goods remaining undelivered after the 19th inst. will be subject to reat

No Fire Insurance has been affected. Bills of Lading will be countersigned by

SHEWAN, TOMES & Co., Jeneral Agents.

[871 Hongkong, 11th July.1913.

6.B. AMAZONE," COMPAGNIE DES MESSAGERIES MARITIMES.

NOTICE.

of 8 per cent, and he did not think Me #1. Dennys (of Mesars. DennysONSIGNEES of Cargo from London es n‚s. another broker in the Colony would de & Bowley) was for the plaintiff, and Mr. Medos" and "BRO 20 Mr. Jenkin said if his Lordship looked it for Mr. Gaskell at less than 25 per J. H. Gardinor represented the defendant.. Sidon" and from Bordeaux or 6,8. "Ville

Mr. Slade said his friend's 'argument was that these items at end of the account, even the brokerage, was affected by the transaction which had taken place a year and a half previously. Let his Lordship take the interest The amount lost on the Sugar transaction was 82,500, and Mr. Cashell obtained at once $1,500 leaving only $1.000. outstanding.

by cash, Jan next item of receipts was

That 81,000 debit uary 2nd, $8,000. His Lordship-You mean by their not was gone by that time. It was wiped out. Mr. Gaskell did not pay for the contesting it?

Mr. Slade The purchase and sal: of shares bought, and his brokers had to the Sugars having beer brought into the pay for him. They paid nett with regard account, the position comes to this: chat to the Sugars, and then they had to pay on November 30th there was a loss of out $1.053.out the 31st December, and so $2,500 incurred by the plaintiff, towards the til balance brought forward on the which lie paid $1,500. That loft $1.400 31st December was $17,053, Then on December 31st he incurred a whole amount there was only one sum of further liability of $1,000 add. Then $1,000 in question in respect to the Sugar there were various payments made, but transaction. The amount was not in dis there was a balance due at the end of pute, and he submitted that the Ordin the year.

The final transactions showed ance did not apply. a balance of $10,000. brought forward. Then there was the sale of 100 Shanghai at the plaintiff's claim he would see that Docks, which brought in $10,000 odd, and he regarded himself as liable to pay in with the exception of some 8400 this terest on the 81,000 as late as on January wiped out the debit balance, Taking the 21st. He would take up this position. account, the items which had not been In the course of fighting this counter- settled were later items for interest and claim it would be necessary probably to brokerage. The ordinary rule was that have a dispute as to this item of $3,000. wher a payment was made it went to If his Lordship would refer to the claim settle former-itoms of debit, so that really endorsed upon the welt he would see that that payment of $8,000, according to the what was outstanding was the balance due in respect of quite the last few items, plaintiff, was made on the 22nd Januars

Or which amounted altogether to 8408.70. If and was appropriated to the payment of his Lordship would refer to the writ he the 100 Shanghai Docks, delivered on would observe that very nearly all the that date. No account they had referred figures wore the same; all the big figures to the delivery of the 100 Shanghai Docks

at all. They simply said "by cash. His Lordship-I suppose the whole If his Lordship wanted to know if there was any appropriation he would make thing

turned on the 50 Bugars? Mr. Shade-Yes, but that has gone by the submission that the sum was appro: the board now. If they were going to priated to this delivery of. Shanghai dispute the accuracy of our account they Docks, and undoubtedly he would be able should have said so.

to prove it,

Mr. Slade-It is not for the payer lo His Lordship-Their defence is that the amount due is irrecoverable because of appropriate. It is for the person receiv

ing to appropriate. this section of the Ordinance.

Mr. Jenkin said he should plead, that Mr. Slade contended that by submitting

indgment on the claim plaintiff the balance of 3408 arose under and in

were the same,

ing

de Constantine" in connection with above Steamer are hereby informed that their Goods with the exception of Opium, Treasure their risks into the hazardons and/or extra ⠀ and Valuables are being landed and stored at wizardous Godowns of the Hongking and Kotrison Wharf and Godown Co., Ltd., at Kowloon, whence delivery may be obtained Optional Cargo will be forwarded on news immediately after landing, intimation is received from the Consignees before Noor TO-DAY requesting it to be landed- Billa of Lading will be countersigned by the Undersigned, Goods remaining unclaimed after the 21st fast. at Noon will bo subject to rent

dist at No

r. Jenkin asked witness to firm. cent.

Mr. Dennys, in opening, said that on "book entry," and asked if he meant that 22nd June the plaintiff's car was hired explain what he meant by the words

a collision occurred he had got it down souwwhere that Mr. by a party of six Chinese ladies to 82 Gaskell owed him that amount. Witness to Aberdeen, and

explain- near the pump house on the Aberdeen answered the negative,

in

was travelling make Road. did not

Plaintiff's car that they

because they did round a corner at half-speed, and on its ont the account

Mr.

car carse round the bend in the opposite not expect anything from him.

askell account in witness books, was proper side of the road, when defendants' written up to 3rd July, when it finished. direction, and the cars collided. The ladies were severely shaken, and the car was because they could not get any money

here. badly damaged. Plaintiff's car was close from hini.

Mr. Jerkin-Tell me whether I am cor-into the bank on the proper side when rect or not in saying that the first item defendants car ran into it, and if his of interest was partially for interest on Lordship found this was the fact plain- pass. In fact another car did pass ulter ftude and for the 30,000 duo tiff's driver could not be in fault, because Witness said that was correct, and, in defendants car had plenty of room to after January

The driver of the defendants terest at the end of June, September, and answer to further questions, said the in- the collision before plaintiff's ear December would be on the same items.

Mr. Jenkin-If the balance of $17,000 est must have taken a hair-pin bend, the collision occurred, at too great a rate was made up of a part of the debit of Just before the right angle bend on which $1,600 that goes in, too?-Yes,

to enable him to take his proper side of Therefore, Mr. Hornby, you were the road, and in a panic he perhaps charging interest on the debit item of

moved.

WELY.

was

and

All Claims must be sent in to me on or before the 24th inst., or they will not be recognized.

All damaged packages will be examined ou the 2let inst., at 10 a..

No Fire Insurance has been effected.

B. C. de 6SIERRE,

Acting Agent. Hongkong, 14th July, 1913.

the justice of defendants' respect of a contract which was wid. $1.0007 That is one of the many items the wheel the mediately after THE ROYAL MAIL STEAM PACKET

in

of

COMPANY.

* FLINTSHIRE,"

were sent for the collision, and Inspector Sims would to

--Yes. admitted

Therefore you did not regard the $1,000 tell the Court the position of the cars defence, namely, that the sale and pur-He, as pleader, would undertake to sav chase of 50 Sugars should be included in that that was the balance on the first the account between the parties. The account. They did not know whethe: debit as cleared or wiped out?--No.

Mr. Slade said his friend had exhibited when he saw them. There was no doubt From SEATTLE, PORTLAND & JAPAN. great ingenuity in the form of his ques whatever about the law, because it was THE Company's Steambip · balance defendants claimed was not in there we appropriation, and if there was

not legal acting in the course of his employment. examination,

The driver of the plaintiff's car deposed connection with the 50 Sugars at all. It appropriation he was quite correct.

that on the approach to the corner at having arrived from the above Porte, Consignees was only interest and brokerage.

Mr. Blade said that if his friend was tions to the witness. He would put facts admitted that defendants' servant was His LordshipThe counterclaim seems

correct in his suggestion, and this China to him

In reply to Counsel witness said the which the accident occurred, a "dead slow Cargo by ber are hereby informed that their

On reaching it Goods will be delivered from alongside. to me to be distinct and separate Sugar transaction can into the interest. questions.

he would reduce the claim by ono six.

increased by $0,325, and warning, was erected.. Mr. Blade-A separate action composed teenth, and so there would only be a six-debit on the 31st December was $17,000.

teenta part running through the subse- which was

Defendants' ear Mr. Jenkin said the effect of the judg;quent interest which had reference to the eventually, decreased by sums of 88.000 witness slowed down, and sounded his 'ment on the claim was that the plaintif | Sugars. He thought that if that was the and $5,525. The debit balance on the bora. Hearing an answering signal from

his car head on. hed no claim against the defendants for only dispute between them he would 31st March was $10,112.52, and the debit another car ho pulled up near the bank and expenLD.

He calculated the interest from the 31st came round at a past pace, and struck

The case was adjourned. the $2.300 odd. If his Lordship would knock off the sixteenth, and call it quits balance was the same on the 30th June. refer to the defence to the counterclaim,

(Laughter.)

Mr. Jenkin, referring to a comment by March to the 50th June on the debit his Lordship as to the merits of the balance....

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SARY 10 TA

LASTIKO DUKE THERAZION' moș BET, GOVT. STASP AYTIXED TO ALL GENUINE PARATI.

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(175

and to the reply to that defence, he would see that the alleged debt of $409.79 arose

on his proper side.

Cargo impeding the discharge or remaining on board will be landed at Consignees risk

No Fire Insurance will be effected. Bills of Lading will be countersigned by

JARDINE, MATHESON & Co., Lro,

Agents. Hongkong, 16th July, 1913.

149