1918-09-17 — Page 3

DISPUTE.

costa.

THE

HONGKONG DAILY PRESS, TUESDAY,

Mr. Jenkin submitted that for the INTERESTING PARTNERSHIP claimed that sum (as stated by the deferid-

ants solicitors) as damages for breach of plaintiff, who had for two years volun- agreement. Both the #100 (salary) and tarily kept his money in the firm, to tão claim for an accounts were admitted, be permitted to come to Court and charge DISMISSED MANAGER'S SUCCESS-

und the only differed on the question of the defendants with the costs for coming FUL CLAIM.

submitted now that the plain-into Court and asking for an account PROFITS OF 855,000 IN TWO YEARS, tiff had not accepted the statement, of which had been made, and was being

account made by Mr. Seth (showing that måde.

Wis contrary ሰዑ His Honour the Chief Justice (8)

the rales the plaintiff's share was $11,000), the followed by Judges in erercise William Bees Davies, K.C.), heard a cit!

their discretion. Though the suit yesterday afternoon in which plaintiff was entitled to ask that the of

ware willing that the count he referred to the Court. The defendants

SEPTEMBER 17TH, 1918.

THE BITER BIT. SERIOUS AFFRAY IN YAUMATI REFUGE.

POLICE CONSTABLE IN THE DOCK.

At the Hongkong Magistracy, yester. day before Mr. E. D. C. Wolfe, three Chinese wore charged, on remand, with having assaulted certain Chinese with the intention to commit a felony. The first | defendant; a constable' in the Water Police, was further charged with having isconducted himself in his capacity as constable.

Inspector Gordon prosecuted, "with the

sampan owners watched the case on behalf of some of the

Mr. M. K. Lo appeared] for the constable, and Mr. F. X. d'Almada for the third defendant.

J. M. Xavier, tilk recently manager of the Hongkong Import and China Produce/question of rests could be settled after, for account be referred to the Court, the do assistance of Mr. G. R. Haywood, whol

in rendering the account the Registrar contri help the Court to decide on the costs in which each side was entitled.

fendants said that the Court could not give the plaintiff any costs for coming there and asking for this. It was merely a hot-hended rush for litigation.

Cooper r. Whittingham (15 Chancery Mr. Jenkin quoted the judgments of

Division, page 304), Walter e. Stenkop (1599 (3) Chancery, page 499) and Fane in support of his sabmission.

Fane (13 Chancery Division, pago 998)

The case for the prosecution, as related by Inspector Gordon at the previous hear

pan with the intention of stealing opiat

was that the three defendants and another constable went on board a yam- they met with a very hot reception, and the commotion that resulted at least two of the defendants were badly handled.

The constable was found, semi-conscious. in the water, while the second defendant was found, bleeding, and bound band and foo; in a boat,

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A witness gave evidence to the effect that the four men came on to the sampan and, when asked what their business was,

come to search the boat. Ins mistress of the boat remonstrated, stating that the men should have been

accompanied by an inspector of Police. The second defend. ant, however, attempted to prises open one of the boxes, and when resistance was offer. edat assaulted the mistress.

Police whistles were blown and the second de- managing to escape. The first defendant fendant was secured, the other men jumped into the water, while the third deteiulan escaped by jumping into a fire:

Export Company, general merchants, elaimed that a statement of account be de of the Company's profits between

He applied for formal judgment.. with March 31st. 1916, and March 31st, 1015,costs of the action, less ang costs which and that payment be made to him, accord might be attributable to the plaintiff's ing to agreement, of the sum equivalent claim for damages which had been aban to. 20 per cent., being his share, of the doned. profts in question. Mr. Xavier also Mr. Jenkių asked leave of the Court to claimed 400 as salary in lieu of novies.state a few facts before he went on to the but this latter claim was settled before the question af çosis. He said that the Hong-

Mr. Jenkia said that on the issue of case came into Court.

Kong Import and China Produce Export Mr. Eldon Potter (instructed by Messrs. Company had previous to 1913 been car

costs it might be necessary to hear evid- Goldring & Phillips) appeared for the riet on under the Chinese name of Wingence from both sides, plaintif, and Mr. F. C. Jenkin (instruct- | Chung Compang. In 1946 they decided His Lordship-To meet your argument ed by Messrs. Lo & Lo) for the defendants. to extend their business, and change their that the action was wholly unnecessary 1 The statement of claim set out that au mane. also using Western methods of Mr. Jenkin said that if the Court was agreement appointing plaintiff manager business, The firni therefore engaged Mr. satisfied that the defendants were doing was made on March 31st, 1916, in which Xavier, who was to act as manager in the all they could to render the account as it was stated, intèr alía, that if after the firm, on a salary of $200 a month. He soon as possible, then the starting of the expiration of the said term of two years

was engaged on a two years' agreemen: action was improper. If the defendants the firm shall continue to carry on die from 31st March, 1916, 'one of the terins were, feting in accordance with their, business and plaintiff shall not have in of the agreement being that the plaintiff recent and with the acquiescence of

the plaintiff, the plaintiff was not en-wood junk, the meantime left the employment of the was to reerive, in addition to his salary,titled to start the action. Grand shall be desirous of becoming a. a bonus of 20 per cent of the net profits partner in the business, the firm shall of the firm per year. Another of the terms admin him, upon terins agreed upon between de parties as follows:----

The net frosts of the business shall after payment therment of interest at the rate of dix per cent. per uncut on all capital brought in to the said business by the partner therein has been made or pro viled for, he divided between the partners other than plaintiff in the proportion that is to say four-fifth part or share thereof to the partners other than plaintiff and :. Potter said that this was a state unffth part or share thereof to plaintiff.ment which had neither been suggested is

After termination of the agreement the plaintiff at the request of defendants con- tinued to act in the capacity of manager to the Company up to April h. 1918,

was that the accounts of the firm were to

was the only person in the firm who was She kept in a European way. The plaintiff

versed in Western taethods of accounting. At the end of the first year, Mr. Jenkin continued, the plaintiff, by his agreement, was entitled to 20 per cent. of the profits. He did not take out this bonus, for the good reason that he had overdrawn from

when he was dismissed without notice from the employment of the defendant Conipany, and there is now due and owing by the defendants a sum of 300, salary for month of April, 1918, and $200 in lieu of notice.

In breach of their contract with plain- tiff the defendants have refused to admit the plaintiff into partnership in the Com- whereby plaintiff has suffered

the firm.

the defendants' pleadings, nor" proved. He had heard it for the Grst time. The suggestion that the plaintiff had velun tarily of his money in the firm was quite true, but that did not rob the plaintiff of the right to an account.

Mr. Jenkin went on to say that at, the end of the first year the plaintiff had left his bonus in the fire and had 'riot even taken an account of it. The ne procedure was carried out through the whole of the second year, and no question was raised for the payment of the bogus, or fura rendering of the account, until well after the termination of the agreo- Not only had the plaintiff acceded tiff at the end of each year 20 per cent in the money remaining" with the firm during his term, but even after his term

pany damage.

It was provided by clause 3 of the agree meat that defendants should pay to plain.

ment

taken.

:

"..

Mr. Jenkin next read,certain letters which passed between the plaintiff and the defendants, in which it was shown that a Mr. Botelho was taking an account

of the net profits of the Company's busi-a alfred it to stand in the firm, never The defendants have made no such complaining that an account had not been payments and plaintiff's share of the pro- fits, for a period of two years, is now due and owing by defendants,

Plaintif claimed that an account be taken of the defendant Company's profits from March 31st, 1916, to March 1st, 1918, and payment to the plaintiff of 90, per of the firm within 18 days of the time bent. pf such sum as may be found to be when Mr. Xavier went away, voluntarily nett profits of the business and $400 for and without any complaint. After read. witary already mentioned.

ing one of the letters Mr. Jenkin said that the letter showed that Mr. Xavier was apparently satisfied that Mr. Botelho was taking the account,

In dealing with the writ served on the

Mr. Potter said that there was no dis- pute as to the facts, and the plaintiff therefore asked for judgment on the ad missions of the defendants. The plaint had originally set out five items, bat only the claim for a statement of account of defendants, from which four items had the profits now remained, the claim for been eliminated, leaving only the claim $100, salary for two months, having been for an account, Mr. Jenkin said that the met, and the request that the firm restrain plaintiff's only real claim was for $400, from using the telegraphic name of the salary in lieu of notice. Having got that plaintiff having been acceded to. A few claira, to use the language of a well- days ago an account was rendered to the known Judge, the plaintiff took advan- plaintiff, but this account was disputed, tage of an unquestionably good ground as the plaintiff said that several large of action and took the opportunity of throwing out his net more widely." Tho items to which he was entitled were plaintiff therefore tacked on the claim for account and three other items, which had since been dropped.

omitted.

On the 10th of September, Mr. Potter

thi

went on to say, the plaintiff's solicitors

Mr. Jenkin added that the position, as wrote to the defendants' solicitors; in order to avoid coming into. Court, aban-

far as could be seen from the letters doning the plaintiff's claim for damages, which had passed between the plaintiff and asking the defendants whether they and the defendants, was that before the would consent to an account being taken two parties were at arms length, a state- into the general account of costs.

ment of account was already being made On the 11th of September the defend-by the plaintiff. ant's solicitors (Messrs. Lo & Lo) wrote His Lordship remarked that in that to Messrs. Goldring & Phillips that as ease the submission was that the plaintiff the only outstanding point was the ques- need not have brought the claim at all. tion of costs, perhaps the proper solu- tion was for the latter firm" to consent to a judgment for the amount paid into Court and for an account of the profits, the question of costs being left over for This, Mr. Potter added, was Argument. exactly what the plaintiff wanted.

Mr Potter, continuing, said that the plaintiff cirived from $11,000 to $13,000

It was an unreasonable and vexatious Mr. Jenkin said this was exactly so.

piece of legislation. He added that be wished to make a point that everything was done. Mr. Botelho started on the possible towards rendering an account accounts in March. In June the books were taken to the offices of Messrs. Lo and Lo for inspection, in connection with the case, and in August Mr. Botelho was taken ill and the accounts were handed to Messrs, Pere Sith, Beth and Fleming. An account had been prepared

as bis share of the profits made by the and handed over to the plaintiff's firm in two years. The plaintiff had never solicitors on September 4th.

ginning of the case he had naked that Mr. Potter said that at the very be the whole question of costs might be left over till after the account was taken. Then the Court could decide whether the plaintiff was entitled to costs or hot!

His Lordship asked whether it was desired that Mr. Seth's account should. go to the Registrar.

accounts, he had no doubt, were all right, Mr. Potter said this was no The

as is as Mr. Seth was concerned, for Mr. Seth could only act on the instruc puted the account, because there were tions he received. But the plaintiff dis.

several gums which should have been

entered in the books, which had not been entered of 10,000 which the, firm had For instance there was the fent to someone.

The interest on this loan was not entered on the books, and though this sum might not have been large one for the defendante, it was great thing for the plaintiff. If Mr. Seth know of this, he would be the first to say that the accounts were wrong.

Mr Potter went on to say that the plaintiff only got the statement of account on September 4th. If Mr. Seth had been called 'in in August and not in September, the account would have been rendered in 14 days, Mr. Xavier was dismissed summarily without day ex- cuse, except that the two parties had failed to agree on the terms of the part nership contract. The defendants took good care not to part with a cent of the money due to Mr. Xavier, with the result that the latter was absolutely stranded. And the Court had to remember that Mr. Xavier had made a clear profit to

the firm, in two years, of $55,000 (Mr. Beth bad proved that the 20 per cent. share of the profit due to plaintif amounted to 811,000), and his reward was instantaneous dismissal, while negotin tions were going on about a partnership. His Lordship said that he understood that the plaintiff would not take his share of the profits away from the firm..

Mr. Potter submitted this was not so. In the Erst year the defendants had asked him to keep his profits in the firm and in the second year they, had dianissef him before the question of the profits had arisen. And yet," said Mr. Potter

we have been called" hot-headed, and have been thrown into the street. In the face of this treatment it was only reasonable that any solicitor would ask the plaintiff to slap a writ "into them. Mr. Potter thea 'dealt at some length with the writ, detailing reasons why cer- tain of the items had been eliminated.

His Lordship said that be would take it as agreed that the account as rendered now should go to the Registrar.

Mr. Jenkin If the parties cannot

agree.

Mr. Potter said that the parties could

not agree.

His Lordship said it would save time, if he ordered the account to be referred to the Registrar at once. He asked whether the defendanta could pay out

certain amount at once,

Mr. Jenkin said that be had no in

atructions,

Mr. Potter said that the defendants had kept the plaintiff out of his money as long as they could. The defendants were hopelessly in the wrong from the

vory start.

His Lordship ordered that, unless the parties agreed, the accounts be referred to the Registrar. He further, ordered that as much as was due to the plaintiff, from the account already taken, be paid at once, and that Counsel should so in- struct his clients. Further argument as to the costs of the action was adjourned.

HONGKONG DEFENCE CORPS.» || GEDEES FOR INFANTILY BATTALION BY MAJOR

H.A. MORGAN...

BCompany.

"PARADES.

"

The parade ordered for Nos. 5, 6, and 7 Platoons on Tuesday, 17th instant, is postponed to Friday, 20th instant."

. G. E. 8TEWALT (Captain), Adjutant, Hongkong Delenco Corps Hongkong, 18th September, 1918. (Other Local News will be found on page E.).

Other witnesses gave corroborative evi- dence.

When a young Chinese woman was giv ing her evidence, Mr. Lo in an attempt to find out the position of the lights, hy

ants clearly-picked up straw hat and Baked the witness to imagine it was the sampan

which witness stated she saw the defend

The second defendant remarked that the witouse went to the Police Station without knowing what he (defendant) intended doing. He was on another boat at the time. One of the witnesses accused him out of spite und he was assaulted. heard, Mr. Lo submitted that there was Lot tittle of evidence against the first and third defendant. Everybody state committed the assault. He thought the that it was the second defendant who has only thing the agistrate could possibly 'do was to dismiss them on the charge of assault. It, of course, naturally followed that if the charge of assault was not Proved, then there was no proof of au intent to commit a felony. Even if he prosecution established assault it would still be material to prove that the men Went the sampan for an unlawful par-

Betore the evidence of the arrest was

pose

Mr. Wolfe remarked that he did not agree with Mr. Lo When four men visit. eu à vessel after dark, they had a fixed One of the mem purpose for doing so. committed an assault; the other three men were undoubtedly party to the scheue, therefore they could not be relieved of any liability in the affair.

Mr. Lo said the facts were really plain; the first and third defendants is not com mit an assault.

Mr. Wolfe replied that he did not know what the men had done...

Mr. Mr. Lo said that his and d'Ammada's clients were not there to

prove their innocence; the Crown had

guilt

first The their LO prove and third defendants might have lost something y did not speak a word, it was and gone to the junk in search of it. the second defendant who did everything it was unfortunate for him that he was undefended. Even if the four men went on board to commit a crime and one of them was thwarted in his design and he assaulted someone, it did not prove that the other men were accessories to it. How could the prosecution state that the men had committed a felony or an assaulti

The Magistrate observed that when four en went to rob a house and one man actually committed the theft, it did not relieve the others of guilt.

Mr. Lo replied that theft was different from assault He would not have wasted the time of the Court if he had thought that his application was premature. Be aides, the mistress of the sampan had ad- mitted that she did not know the reason why defendants visited her boat.

Mr. Wolfe said as far as he was able to see, it was one concerted scheme to take things away. The men had been foiled They could be charged in the attempt. with attempting to commit a felony.

Mr. Lo submitted that the men might be discharged and a new charge framed.

Mr. Wolfe replied that there was no necessity for such a procedure. According to the Magistrates' Ordinance, if the evi dence pointed to any other set than that on which a defendant was charged, he was allowed to frame a new charge on the evidence already adduced.

the

Mr. Lo contended that there was no evidence of assault against his client. He said that if a man had committed a murder he should be charged with murder, He referred not with another offence.

Magistrate to the remarka he the made in his opening statement to effect that the Magistrate should forget some of the facts related by Inspector. Gordon with regard to the concealment of opium on one of the sampans in the Refugo, of which, Inspector Gordon had alleged, defendants were attempting to get possession.

Inspector Gordon contradicted this. Mr. Wolle The point I am Icoking at is that it was a preconcerted plan, appar ently to commit some illegal act. They went on the boat to search it. I do not know whether they represented themselves

a policemen or not.

There is no evidence against them.

Mr. Wolfe: One of them acted as spokesman. I am not prepared to discharge. them. It will be better to bear the Police avidchce of arrest before coming to & decision. I, too, have observed the absence of evidence of assault against the first and third defendanta

Mr. Wolfe then remanded the case till this afternoon.

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