1914-02-21 — Page 3

SUPREME COURT.

Friday, 20th February

IN APPELLATE JURISDICTION.

BEFORE SIX HAVILLAND DE SATEMALES, CHIEF JUSTICE OF H.B.M.'s Cour OF CHINA (PRESIDENT); THE CHIEF JUSTICE, SIR WILLIAM REES DAVIES, K.C., AND MR. H H. J. GOMFERTZ (PUISNE JUDGE).

THE SHEWAN-TOMES PARTNERSHIP CAFE,

The hearing was resumed of the appeal by Mr. U. A. Tomes against a judgment of the Chief Justice in a partnership dispute.

Mr. C. G. Alabaster and Mr. C. F. Jenkin (instructed by Messrs. Wilkinson & Grist) were for the plaintiff appellant (Mr Tomes), and Mr. E. H. Sharp, K.C., and Mr. Eldon Potter (instructed by Messrs. Deacon, Looker, Deacon & Haraton) represented the respondent (Mr.

Shewan).

When the case was resumed the Presi dent addressed Mr. Sharp and said that be could not understand the position with regard to the 17 or 18 lakhs, the suggested upset price. He could not see himself that the value of the liabilitios vas any more than half the consideration which would apply in fixing the upset price of the actual value of that partnership.

einces. Mr. Sharp had said 15 lakhs. M2 Sharp remarked that that upset price had been mentioned in Chambers: it had been suggested.

The President then remarked that that suggestion for an upset price seemed to be entirely wide of the mark. Mr. Sharp he added, had based his argument on the assumption that the Court might fix a large price like the one mentioned.

The Chief Justice montioned that that ac doubt arose in reply to a question of hi in Chambers regarding the sale as. a going concern and the arrangements which would be made. The appointment of a Receiver was then mentioned and suggestions were made about the upset price.

THE HONGKONG DAILY PRESS, SATURDAY, FEBRUARY 21, 1914.

Mesara. Vornon & Smyth in their weekly, share report dated 204 February scale-

but was going to take his chando in HONGKONG SHARE MARKET. the open market, where he may be able to get it for $125,000 instead of $150,000, which will be so much better for him That sarly was not the spirit of the agreement,

Such a thing would be Clause 15 was put is, to encourage the equitable. He was of the opinion that partners to come to an agreement and so avoid the sale; to make them agree among theraselves.

Mr. Alabaster, in the course of his reply, aid that there was no doubt that the person who purchased the goodwill would get all the shares and also the hold over the companies, the general-managerships, Any first-clues company would be very glad to bid for it.

It was said that an outsider the value of the things would be lost, but he was aiming the right to sell to the highest bidder. The general-managerships of the concern was its very sap and life, and could be done very well by any first-class Arm. These general-managerships brought in large sums of money, and they were, he contended, the goodwill, and that could divided, subject to the approval of th not be divided. The shares could be bank, but the general-managerships could not be so divided.

Mr. Sharp-We say they can be divided Mr. Alabaster-They could not he divided; there would be no successors.

Mr. Sharp-We are (Laughter.)

the successors.

AN EUROPEAN EX-WARDER'S

DEATH.

ENQUIRY BY THE COTONER.

The Coroner (Mr. F. A. Hazeland) and G. M. Lakin, and A. J. Bursley, held an a jury composed of Messrs, R. Henderson, enquiry at the Magistrany yesterday touching the death of Harry Stephon aged 23, formerly a warder at Victoria Gaol, who was found hanging from a tree on the hillside above Bowen Road.

Dr. Harold MacFarlane, Medical Officer

The local marker owing to the Raco nave been on a limited scale, with prices, Meeting has been qirist, and transactions however, in several stocks showing an improvement, and inquiries more general

Oils" have been a quiet market and prices show no appreciable change from last week. The London Rubber ma"- ket has a tendency to expand, and the tone according to our latest advices is in charge of the mortuary, deposed o returned as strong, while the "Tin making a post-mortem examination of thy market remains quiet with prices round body of the docoast. Then was a black about last week's quotations. Fine Hard mark on the ligature round the neck, and Pars is quoted at 3/11 per b. and the internal organs showed signs of plantation sheet is easier at 2/5 per ibasphyxiation. The cause of death in hi The open market rate of discount has opinion was strangulation and asphyxia advanced to 2 per cent, and the Banktion. of England rate remains as previously Dr. W. V M. Koch, Medical Officer

Bar Silver is in charge of the advised; viz., 3 per cent.

Lunatie Asylum. quoted at 269/18 for ready, and 287/16 deposed that Harry Stephens was forward. Sterling T.T. at 1/10, Shang admitted to the asylum on the 14th bai TT at 783, and Singapore T.T. January He was kept under observation at 81. Console have improved and close till the 20th, and, no signs of insanity Banks are inquired for ut $812) ex date and finally discharged from that BANKS Hongkong lod Shanghai the Government Civil Hospital on that showing themselves, he was transferred to

dividend with London a seller at £8 un institution two days later. Witness had

dividend.

་

MARINE INSURANCES.-Unious remain in demand at $840, with no shares on offer at the price and Cantons have buyers at $336, without leading to business North Chinas are wanted at Tls, 185, and Yangtzes are now inquired for at $196, with go business to report.

FIRE INSURANCES.-Chias Fires have been sold at $1874, and Hongkong Fires after sales at $305, close with buyers at the same figure.

to commit suicide by standing on his head been informed that the man had attempted

in a bath full of water, and Stephens told witness that he had we recollection of, and that he never could have done such a thing.

Witness examined him

INTIMATIONS

How My Hair

Is Coming Out!

Prevent

It With

Cuticura Soap

and Ointment

Tonight rub your scalp lightly with Cuticura Ointment. In the morn ing shampoo with Cuticura. Soap. No other emolients do so much for

If the goodwill was sold the Macaos have led to business at $28 Bintendent of Victoria Gaol, sail deceased dry, thin and falling hair, dandruff

and irritated, itching scalps.

Cutien Soap and Ointment sold everywhen, Bama- ple off with 3-p.book frac from nearest depot: Newbury, 21, Charterhouse Be.. London: TownS & Co., dros, N.S.W. Lennon, fit, Cape Town: Muller, Macken & Co., Osloutka and Dɔmby. Fot tor Drug & Chem; Corp, sola props, Beston, U,S.A

Terder laved men shave fi eomfort wit Qull- --`` cuza Beep Shaving Stich. Theralsarable Ene

[96-H

carefully every day, and Dr. Bell. also examined him, but he showed no signs that he was of ensound mind neither did he show any delusions. The man was of a very merose and sullen disposition, as far as witness could make out. SEIPPING, Hongkong. Canton, and purchaser would take the right of con

Mr. J. W. Francks, Assistant Super $29, and now close with buyers at $281 was formerly a warder in the prison, but neetion. The suggestion had been made with no sellors in evidence. Douglases that if there was a piccemeal sale both have had sales at $35 and $344, closing had retired just before his death on partners could claim themselves as being steady at the latter rate. China and medical grounds, He was, however, successors to Shewan and Turnes. The Manilas remain on offer at 894, with no allowed to live in the quarters. The goodwill ant the connection with all the sales to report, and Indo-Chinas have im deceased's history as an other was good. companies would be thrown into the sen proved to a buying rate of $784 with no He had only been in the gaol a short time if there was a piecemeal sale; even if it shares on offer, the London rate being joining in December of last year. - Thi was valued at any amount of money. unchanged, iz 155 middle, Star reason that he retired was that, in the. He had never mentioned an upset price. Ferries remain in request at $48! with no opinion of both the Medical Officer and That had been introduced by the other sales to report

the witness, it was undesirable to have na reply to nothing. He was asked to point dot as having a middle quotation of 155/- knew nothing about his attempted suicide side, and was no reply to him; it was a ***Ong. Shells are advised from Lon officer who was liable to fits. Witnes:

going concern, as asked for by him, the at 41/3 middle. cut that on the sale of the business as a and Mexican Eagles are slightly easier as he was not an officer of the gaol of the Fral Caspians have time. He could not say that the man was purchaser would not only undertake to improved, and are advised at 53/14 insane, as he always answered his ques of the firm, but he would also obtain his in London at 13/- with no shares on offer indemnify the vendor from all liabilities middle. Maikops can probably be placed tions rationally. release and discharge therefrom.

Dr. MeKenny, the Medical Offer of The under 14/-. Langkats have been the the Gaol, deposed to examining Stephens purchaser would assume the liabilities medium of considerable business and now on his admission to the goal. The man when he took the credits; and the pur close in demands. 36 for eash. was physically fit, but he appeared rather chaser would probably be the other REFINERIES -- China Sugars are dull mentally. As the result of a com a going concern was that the purchaser without leading to business. Luzons are he decided that Stephens was not a partner. The whole iden of the sale as inquired for at the improved rate of $961, suliation, with Drs. Bell and Koch, late: took everything and the vendor got rid unchanged with sellers at $31.

suitable man for a warder's position, of everything. He held that the only way to wind up that business at all was by no shares are obtainable. Bailaus have Victoria Gaol, said that whilst in bed at a sale as a going concern. He laid stress been placed at 41/- and at which price the quarters on the morning of the 14th en thal. A firm whose assets consisted of more shares are wanted. Tronohs after January, he was awakened by Warder ZEISS

He made a communication! two things, shares and good will, would be sales at 39/- have cased and are now in Buchanan. dissipated by a piecemeal sale.

quired for at the reduced rate of 35/6, witness, in consequence of which be goodwill and the shares would be thrown the London riddle quotation being ad- went to Warder Stephens' room,

Heawoods dose with a found the lutter leaning on towel-horse, vised as 36/3. away; they would be thrown market--and the market in Hongkong, it nominal quotation of 2/6 po business and on asking what was the matles was within their Lordships cognisance, Having been reported during the period witness received a reply from Stephena was small and limited necessarily and under review.

to the effect that two men were trying DOCKS, WHARVES AND GODOWNS.-Hong, to drown him. they would depreciate and produce kong and Whampoa Docks have changed and became sick. Witness asked hini to Ho then struck witness, nothing. However, if the shares were hands at $75, and now close with buyers go into another room, and deceased then NEW LIGHT WEIGHT MODELS. taken to tell embody cives offering $76k, without leading to business turned round and hit him with his fist value, but would stand in somebody else's Kowloon Wharves have been sold at $84,

me. To do such a thing would be no and are now on offer of $84). No change across the face violently, knocking him practical difficulty fall. If there were

elean head over heels: The man ther any they could be disposed of afterwards has to be reported in New Amoy Docks, rushed to the bathroom, and stood of which again close with a nominal quota- his head in water. Witness pulled him according to form and order and the ton of 281, and Shanghai Docks are as out, and put him to bed. He had been arguments to be heard as to the conditions of sale. In conclusion, Mr. Alabaster previously advised, viz, Tla. 56. Shang in bed about five minutes when a don urged their Lordships to remember that hai and Hangkew Wharves clase with jumped on his bed. Stephens took hold in such a matter the business had to be buyers at Tis. 104 with no local sales of the animal in both hands and threw sold with a due regard to the benefit of

it across the room. Before this incident the firm as a whole, and he contended that

different man on returning from the deceased seemed all right, but seemed a a sale, as a going concern would realise more than a piecemeal sale, and that a

Asylum. He worried a great deal about CHS. sale with a goodwill would realise more

what he should do in the future. thu a sale without a goodwill.

FOR THE RACES

360 upon the assets, and the payment of what was due to himself. Therefore, their Lordships could not make an order which would prejudice that lien.. Mr. Shewan had a vested right in the assets and they could not make an order which would deny him of that right, then went on to deal with the point that Counsel if the Court could direct a sale it would not do so. His argument upon that point was that Mr. Shewan would be worse off under the opposing Counsel's construction of Clause 15 than under theirs, There was another way in which Mr. Shewan would be the loser. Suppos- ing the goodwill was not sold, and he meant this to refer to Mr. Shewan and Mr. Tomes, the continuing partner would be able to carry on the business without any restrictions, and under the same firm ne. However, if the good will was sold & going concern, although, of course, either partner might carry ou a similar business, he could not do so in the name of the old firm, because the goodwill. cluding the name of the firm, had been old. He could not in any way do any slut he was the old firm, he could not thing calculated to convey the impression curvass the customers of the old firm (a very important restriction in a case like this), and he would be carrying on the business under a variety of other restric If the goodwill wld be would tins. carry on the business ander these dis- abilities. It had been suggested that the goodwill, if unsold, would remain in these two partners. There was no precedent for

Mr. Alabaster-1 a contending you that, and it was practically clear that it are not. Proceeding, he said thero would would depend upon how they would dealbe no successors as the result of a piece with it, and what arrangement they might meal sale. That would be the whole, come to with one another in the matter. difference between selling as a going There might be a division of the goodwill; | concern and selling piecemeal. The a certain part adhering to one partner general-managerships would be lost and and another part adhering to the other. everybody in Hongkong would grapple There could not be a realisation in

for them. 2 moment, he added, and if the partners could not come to an amicable arrange out the assumption was that they would be open to carry on the business as the old concern with the reservation, "late" Shawan and Tomes. The liquidation of the Company, he asked the Court to remem ber, would take at least a year because of the limited market, and there was also the question of contracts. Speaking with regard to the upset price, Mr. Sharp opinion was that they could not fix it, again reminded their Lordships that his

restricted to one bidder. He had been and that if they did the market would be asked what would happen if no upset still. They could then be made liable for price was fixed. That would be worse the debts. His position was that if a price had to be fixed at all it must be an upset price; but he did not think they could fix it, and if they did not it would te Clause 15 anid his construction of that he worse still. Mr. Alabaster in referring was like a pistol being held at the head of one partner by another and telling him to come to some amicable arrange ment. He (Mr. Sharp) submitted to their Lordships the previous day that the mani- fest intention of Clause 15 was to make it a strongly insistent one to partners to come to Their position throughout had been to some amicable arrangement, come to some arrangement if possible They had made an offer to Mr. Tones either to buy or to sell on terms higher than he had ever offered to them. They hard offered to be either buyer or seller at Mr. Tomes' option. A very fair offer was made on November 13th by Mr. Tomes and this was submitted to the Chief Justice, Mr. Shewan then offered $148,000, but that Was refused, and also when. further $25.000 was added. Then came a counter proposal by Mr. Tomes, that he would sell for $300,000, payable, part by cash and part by security. The Counsel in Chambers adjourned for the sideration cf that offer. hurt no settlement could be arriwd ut. A second adjournment took place, but nothing was

kong Lands are a quiet market with LANDS, HOTELS AND BUILDINGS.Hong done. Mr. Sharp then weferred briefly to the 1912 balance sheet, remarking that

sellers at $112, and Humphreys remain on that had only been used for the purposes

offer at $81. Kowloon Lands have buyers at $15, and sales have taken place iu of argument. It had never been accepted

Sergt. Pitt gave evidence to finding the by Mr. Stewart because he held that it

West Points at $66, at which price more body of the deceased hanging from a tree was not correct, and therefore he (Mr.

have improved to a buying rate of $120 body removed to the No. 2 Police Station, shares are wanted. Hongkong Hotel Life was then extinct. Witness had the Sharp) did not want to deal with it too

for the old issue, and $97 for the new where the clothing was searched. Witness However, Mr. Alabaster had

with no shares on offer at these rates. deeply, said that that balance sheet showed that

found amongst other things an Army dis COTTON MILLS Hongkong have been charge and a pocket book. On the former, at that time Mr. Showap was insolvent.

placed at $8.10 and Kung Yiks have he was stated to be of good charactor, Such a statement was quite beside the

changed hands at Ts. 18. Laon. Kung sober, and realiable, mark, and quite untrie

In the note-book At that time

Mows are wanted at Tla. 98 and Shanghai were four letters, written in pencil. The Mr. Showan was very largely solvent. Concluding, Mr. Sharp said that the

Cottons at Tls. 132. Ewos have been sold first was to Warder Didsburg, in the matters should never has ariser for their

We are informed by Messrs. Jardine, at Tls. 136, and close with more shares on course of which he apologised to the war Lordships' crusideration or judgment at

Matheson & Co., Ltd., the general offer at same pries

der for bringing upon him all this Mr. Sharp added that when one partner all, and for the reasons which he had managers of the above. Company, that in demand at $11, and there are buyers sure that what

MISCELLANEOUS. China Borneos remain trouble." The letter continued: "I feel took over the business from another he

am doing is all for the given he asked them to dismiss the appeal, they have received a telegram from the of Dairy Farms at $30 and Green Islan best. I tried to re-enlist this morning, but MACGREGOR&Co. took over eveything, including the debts. and an indemnity was arranged. They Mr. Potter also addressed the Court board of directors in London declaring an at $6.50. China Lights are on offer at I got what I quite expected, when they must assume that both partics had given ho said,

on Mr. Shovan's behalf. There was.

andoubtedly,

interim dividend on preference shares of $43, China. Providents at $9 Hongkong said they could not enlist me owing to due regard to this liability. He

good reason why the draughtsman of the 3 per cent., payable on 28th February: Trans (new) Bi cents, Waterboats at 820, disease before I left the Army,

Electrics at $46, Ice at $190, Peak having had epileptic pits besides the also remarked that Mr. Shewan was in a position to pay a larger price than Mr agreement should distinguish between The books of the Company will be closed Watsons at $7 and Powells at 89. The It is a coward's trick to take one's own! Temes was offering, but the purchaser property and effects and goodwill in from Monday, the 23rd inst., to Saturday following close with a nominal quotation, life, I admit, but what can one do inf

every clause. In every clause property. the 28th inst., both days inclusive. ocurred until they came to Clause 15. Coming to "practical polities, ho con- tinued, if their Lordships ordered a sale is a going concern then under Clause 15. no one would be the purchaser except a partner, because no outsider would ever We understand that several Indian dream of giving anything like the value soldiers are under arrest in connection

...155/- Indo-Chinas (Combined Mr. Sharp-Certainly. That is the of the goodwill of this business which a with the serious affair at Kowloon on

40/6 requirement of Clause 15; they must be partner would. They must also bear in Wednesday, when a body of police were Chinese Engineerings... actually paid. Therefore a sum of money mind that the retiring partner would be attacked with large pieces of rock and Hongkong Electric Trams will have to be put up upon the sale as able to carry on a similar business in bones by Indian soldiers surprised in the Tronoh Mines, Ltd. a going concern which will actually pay Hongkong, where he was well-known, and act of gambling. The men wel dispersed, Ural Caspians .. the debts. Referring to the assets Mr. that also would materially affect the but left their coats, containing their num. Mexican Eagles Sharp said that they were somewhere in value of the goodwill to a stranger, Hebers, on the ground The police scoured Shell Transports "kerer" the neighbourhood of $2,000,000 The submitted that the whole spirit and inten- the country, but failed to find any of the British Burmah Petroleums, shares, if sold, at the present market tien of that agreement was that the miscreants, and as a result an identifica United Serdangs value would realise $1,700,000.. There goodwill should be purchased either at a tion parade was held at the Barracks on Rubber Plant Int, Trust would have to be an actual payment of fwd price by the partners themselves, Thursday, when five or six men were Eastern Int. Trust Venture Trust, Ltd: the debts in addition, for an indemnity or by virtue of an agreement come to picked out and arrested.

Mr. Sharp then romarked that his contention was that their Lordships had no jurisdiction to fix an upset price at all. When he mentioned an upset price be had merely assumed a case apart from the question of jurisdiction; he had assumed for the purposes of his argument that their Lordships had jurisdiction.

The President then said that Mr. Shewan was of the opinion that the price woule something like 6 lakh. No.

but would be more like the sun. Mr. Sharp mentioned that his client's last offer was $80,000 more than the offer of the other side.

The President said that no doubt the value of the business as a going concern would range between 4 pr 5 lakhs The suggestion of 18 lakhs was absolutely out of all proportion and could not be conceived as a proper upset price. He then asked, supposing they took. Mr. Sharp's construction of Clause 13, what would become of the goodwill!nk

Mr. Sharp said that he had always contended that Clause it did not include goodwill. If their Lordships thought that it did he would do what he had intended, address them on the question tant morning

The President-1 arrive at a lakhs because I think 18 lakhs is an absurd figure.

Mr. Sharp-Five lakhs is a conceivable unset price.

The PresidentWell, it is something approaching the value of the business as a going concern.

would have to pay in cash.

The President-Why ? Mr. Sharp-Because the debts have to be paid off with the purchase.

The President-Then you say that the business, can only be sold as 23 going concern by someone coming forward and paying all the debts.

would be of no use. If there was to be * sale ag a going concern there would have to be a complete realisation of all the assets before such a sale could take place. He took it the shares were easily negotiable, and that they were gond urity for a loan if this were necessary to enable one of the partners to buy the retiring partner's shares. As a reckless assumption he said they would be worth

porte

con-

between them They must assume that the partners had valued the business, they had dono so or three occasions, that the valuation was a fair one, and that they mutually agreed to it. The proper value of the goodwill was what thepurtners fixed it at, and they were prepared to pay that value for it. If his friend's construe tien cf the agreement was correct, what was the result? The plaintiff or the

75 per cent, they could not get more than defendant, and he was not drawing a 75 per cent in that Court. Mr. Shewan distinction between the two gentlemen. had already produced $180,000 from his could under Clause 16 purchase that pocket, but assuming he came not goodwill at any prio although the $1,500,000 that would not cover all the cost of the transaction, for the actual partners bad chosen to agree on a price. realisation at to-day's market price would cause in the agreement. What was the and a fair value, by virtue of another realise about $2,000,000. Mr. Shewan could not produce more than two-thirds good of all the elaborate machinery in the or three parts of that sum. The position langes referred to if this sort of thing of Mr. Shewan was that he had an actual could be done? The partner, if he chose, vested right in his share. He also had could say that he would not purchase ar retual lien upon the dissolution; and the goodwill at the fair agreed price,

The

on the

This concluded the hearing, and the President intimated that in view of any application which might be made, he would give an intimation on Monday as to how their judgment might go.-

INDO-CHINA STEAM NAVIGATION

COMPANY LIMITED......

*

THE RECENT ATTACK ON POLICE.

INDIAN SOLDIERS UNDER 'ARRÈST.

CERIS CABIN

Asthma.Kehil

105]

MINING. Raubs are wanted at 83, but

report.

James Leslie Speed, a warder at the

viz.. Ropes $98, Hongkong Trams 7/6, each a case as mine??* Peak Trains (old) $10 and Steam Laundries Some

*LONDON QUOTATIONS-The following quotations (middle price) were received from our London Agents by wire this morning:

7/6

20/3

53/14

41/3

.105/-

5/11

10/6.

13/14

14/0

1/7

PERTUSSIN,

Is a harmless and efficient remedy against all diseases of the respiratory organs, especially WHOOPING COUGH, CATARRH OF LARYNX, ACUTE AND CHRONIC BRONCHIAL CATARRH, ASTHMA, & which has been recognised unequalled by the highest authorities. Also the AFFECTIONS OF THE LUNGS will be greatly relieved by the use of it.

TO BE HAD AT-

THE MEDICAL HALL.

HONGKONG.

Не

In a second tetter, addressed to his brother, Stephens wrote that since he had been in Hongkong he had had nothing He asked his brother's but bad luck forgiveness for "the rash act" he was about to commit, and signed it '' Your broken-hearted brother." The address of deceased's parents was affixed, and e letter to his sister followed; in which he said that if he went home he would only be a burden to them, and that he did not intend to be."

In a fourth letter, addressed to the Doctor, deceased expressed the sorrow ho felt at bringing Warder Didsbury, into such trouble. He mentioned the fact that the latter had been good enough to give. him $190 to buy his discharge, and ex pressed his regret that he had been unable to repay a cent of it.

PRISM

FIELD GLASSES.

4 power

TUROL

TUREX

TURACT

£5.10.0

6.15.0

6.10.0

6 power

8. power

J. GAUPP & CO.,

ALEXANDRA

BUILDINGS.

HONGKONG..

CALDBECK,

(ESTABLISHED 1864).

JUNORA

THE

JUNORA

coor wher

JAKAB

*and #19 iba fashion

of

OF

The jury returned a verdict that de ceased committed suicide whilst unsound mind.

ALLEGED THIEF'S DEATH.

ORINESE SHOPKEEPER ARRESTED,

VINE

HEALTH

A Chinese was arrested on Wednesday afternoon in the village of Shalowan near Tai O, by some shopkeepers, whe accused him of the larceny of clothing and other articles, to the value of $55. "A1 Indian sergeant was passing the place on- patrol when he found the man under arrest and being taken to the Polic Station. The alleged thief complained of LIQUEUE AND COCFTAIL, EMBODIED having been assaulted by one bf the

A TONIC WINE, “PICK-UE-UP,

shopkeepers, and he died within an hour. IN ONE BOTTLE.

The shopkeeper whom he accused

of

asanit has been arrested and charged

with manslaughter.