1
NOTICE TO CONSIGNEES. PENINSULAB & ORIENTAL STEAM NAVIGATION COS STEAMER ***DELTA."
ARRIVED HONGKONG ON 19TH MARCH, 1926. Fox BOMBAY, COLOMBO AD STRAITS
THE HONGKONG DAILY PRESS, TUESDAY, MARCH 23RD, 1926
CHINESE PARTNER'S LIABILITY. INTERESTING POINT IN MIXED COURT AT SHANGHAL CONFLICTING EVIDENCE
CUSTOM.
OF
As the result of a Mixed Court November 3rd
CONSIGNEES of Cargo by the above application heard on
Vessel are hereby informed
Izat, there
ing
at
was an interesting hear that their Goods are being landed and
the Court on March 17th, placed AT THEIR Arax in the Hongkong and Kowloon Whart and Godown Comvany's Godowns at Kowloon, where each Consignment when a case in which the Ming Sung will be sorted out Mark by Mark and Delivery Umbrella Factory (in liquidation) were can be obtained as the Goods are landed.
This vessel brings on Cargo from Persian granted permission to submit argument Gulf ex B.1.5 N. and B. & P.S.N. Co's on the question of the liability of the Shareholders in an unregistered Com- Steamers.
Optional Goods will be landad here unless Lastractions have been giron to the ocpany was heard before Magistrate Kuan bry Six hours before arrival of the Steamer,
not aleared within 8 days, including and Mr. A. J. Martin, British Assessor. Goods
Mr. A. M. Freston appeared for the date of arrival will be subject to Bent
No Fire Insurance will be effected by us in directors of the Factory, and Mr. R. G. any case whatever.
Damaged
Packager must be left in the McDonald on behalf of Messrs. Barlow for examination by the Consignees, and & Co., G. H. Blackburn, and Frederick Godow the Company's Surveyors, Messrs. GORBAND
Dovelis, st 10 M., on Mondays and Larges & Co. Thursdays, within the Free Storage Period,
All Claims against the Steamer must be sented to the Undersigned on or before the 8th April, 1926, or they will not be recognized
No Claims will be admitted after the Good
have left the Godowas.
MACKINNON, MACKENZIE & CO...
Agents. Hongkong, 19th March, 1926,
(3338
NOTICE TO CONSIGNEES. COZAN STEAMSHIP 00., L/ID.
AND
UHINA MUTUAL STEAM NAVIGATION 00. LTD.
CONSIGNEES per Company's Steamer
DIOMED
Court proceedings in connection with the Ming Sung Umbrella Factory com- menced as long ago as March, 1991; and the hearings upon the question of the liability of individual partners are now approaching, an end.
Concluding evidence on behalf of the; Factory was taken and thereafter Mr. McDonald opened his speech which, he said, would require several sessions of the Court to complete.
THE CUSTOM IN SHANTUNG.
Mr. Wang Zah Fah, Chairman of the Shantung Guild, said in answer to Mr. Preston he had been in business in Shanghai over 40 years and knew some thing about local business customs. With regard to the custom relating to the liability of partners in a firm, this
evidence, to which witness retorted that Chinese merchants had suffered a lot from their Government." The laws were sometimes entirely contrary to the peo ple's ideas. Some of the laws of the country were Killing the merchants." Mr. McDonald:-Are you suggesting that the Supreme Court at Peking is an absolutely ineficient body-your own Court-We always adhere to our own sphere of action.
But do you respect your own Supreme Court at Peking or do you not-Of course, being a Chinese organization, we passed by the Supreme Court is not good must respect it but suppose any decision then we merchants have no capability of modifying it.
But are you to suggest you are in a better position to decide whether a judgment of the Supreme Court com- posed of some of the able men in China is right or wrong That is not so. We merchants usually do as adopted by all the merchants.
THE MERCHANTS, AS LAWYERS.
Do you obey the judgment or decisions. of your own Supreme Court or do you not T-If it is reasonable I will obey; if! it is not, I will not obey-
Mr. McDonald-Then you make yourself the Anal arbiter
Witness-Not "I alone.
Mr. McDonald-I menn the merchant classes. What we sny is right, what the Supreme Court says is wrong, even on A matter of law "
Witness-That is so.
At the conclusion of his evidence, Mr. Preston submitted an extract from the Hongkong Government Gazette to which, Mr. McDonald objected as merely being an opinion by the Attorney-General at Hongkong in 1911.
After further argument, the Court decided to admit the document presented Mr. McDonald, in the course of his by Mr. Preston. speech, said:-
Ji
Quicura
MEDICINAE
TOIL
Cuticura Preparations
Une salled in purity, they are. regarded by milions as unrivaled in the promotion of skin and bals health. The purifying, antiseptic, pore-cleansing properties of Cuti- cara Soap invigorate and preserve the axing the Ointment Boothes and hemis mashes and eruptions. The freely-lathering Shaving Stick causes no kritation but leaves the skin fresh and smooth. The Takum [is bragemnt and refreshing.
Зами
Televis poid throughout
by the Catiese Shoejus Silek,
Then I submit it is not a usage be rause, firstly, it is not notorious; second- 15. it is not certain, thirdly, it is not reasonable: fourthly, it is not legal; and lastly. I subunit that my clients, even if it were held to be a recognized usage, are not bound by it because they ignorant of its existence."
were
M McDonald proceeded to quote two British cases on the subject and added:-
I say that the custom or usage which cause it is contrary to the law of other has been set up here is unreasonable be countries and it would and must alter the whole method of dealing between for- eigners and Chinese.
It wholly unreasonable as regarde foreigners and would inevitably lead to a serious loss of confidence in the Chinese
are hereby notifel that the Cargo will be din. liability was always divided among the whether the available shareholders are in the future and it would put a pre-
charged into Holt' Wharf, Kowloon, where it will be at Consignzes', sink and subject to Terms and Conditions of Storage, at Holt's Wharf. The Clarge will be ready for Delivery
March, from Godown on and sitered, unless Notice
Optional Cargo will be has been given prior to 8tommer's arrival,
All broken, chafed ad damaged Goods are to be left in the Godcars, where they will ke examined on any Tuesdays and Fridays between the hours of 10.45 4., and Noox within the Free Storage period
number of the Shares of the partners. If he had a share of Tls, 10,000, he would If he were insolvent have to pay out the whole of that amount
to save his face." and could not pay his share then be If there were four would lose face." partners, and two ran away, that would be a queston for the manager to take up "If pay my share of the loss," con- tinued witness." I do not care what happens to the others."
Cross-examined by Mr. McDonald wit- No Claims will be admitted after the Goods have left the Steamer's Godown, and all Goodness said according to Shantung custom remaining
undelivered after the 9th March, accounts were usually settled once every three years. If any member of the staff be subject to Rect
will
9th April, or they will not be recognised.
No Fire Insurance will be effected
BUTTERFIELD & SWIRE,
Yoo Agents.
Hongkong, 20th March, 1926.
(9343
The issue now before the Court is to be treated as partners with unlimited mium on forgery and dishonesty when they are only liable rateably in pro-was a question of liquidation. liability or whether it is to be held that ever things went wrong or whenever there portion to their share. It is no issue of profound importance to the business community, not merely in Shanghai, but throughout China, and not merely to the foreigners, but to the Chinese as well.
A UNIQER ADVANTAGE. Evidence has been called by Mr Preston on half of the partners to prove, as far as I understand, that there is some custem or usage either in Shang hai or China, know net which, that
A QUESTION OF CREDIT. Consider for a moment the attitude of, I submit, all foreigners in their dealings with Chinese partnerships. What do they do! They say that one or two or three men of substance and repute are members of the partnership, and they are satisfied because they rely, entirely on the standing of those one, two or three partners; and they know that if it may they will be able to proceed for their full he necessary at a later date to take action
All Claims against the Steamer minst be had done good work during that period partners in a Chinese partnership are claim against those one, two or three world, but enjoy the unique and astound. If they do not act on that basis, if it presented to the Undersigned an or before the he would be given a certain percentage not really partners as regards the outside partners who will foot the whole bill.
of profits. He was of opinion, the cus Loa with regard to liability of partners ipg advantage of a limitation of liability were held there were, such a custom or As regards their losses, although they applied to the whole of China
The Assessor (to Mr. McDonald)-Do have not fornied themselves into a limitage as is alleged, what would they have you admit this custom of imitation of ed liability Company, and although the
I partnership is not registered.. liability of partners}
Now, why has my friend sought to to establish this' alleged custom, for one very simple and obvious reason, and that is because un less he can do so,, there is no more to be said.
NOTICE TO CONSIGNEES. PENINSULAR & ORIENTAL STEAM NAVIGATION CO.S STEAMER "DEVANHA."
I
Mr. McDonald-Very far from it. That; is what I am here to deal with and I hope attempt to prove or to convince your Honours. There is nothing you can call a custom at all.
The Magistrate-Have you read the judgment of the Mixed Court in the Shanghai Import and Export Co. 1
Mr. McDonald-I am going to deal with all the judgments in this case. I, may take two days to do so. If neces- I will analyze every sentence in A LOCAL ACCOUNTANT DIFFERS. Mr. Tom Grin, partner in Messrs.
ARRIVED HONGKONG ON BOTH Mar. 1926, Fox ANTWERP, LONDON, GIBRALry
TAR, MARSEILLES MALTA, PORTSAID, ADEN, COLOMBO & STRAITS.
CONSIGNEES of Cary for that their
hereby informed
them.
Seth, Mancell and McLure, Official
With regard to the custom, what has he done?-He has called a number of Chinese who said that there is such a custom. But what is the extent of the custom which they allega 1-A custom or loose understanding, possibly, merely among the Chinese themselves.
THE CHINESZ WAY,
to do in regard to credit transactions. however small? They would first of all have to see the partnership articles or partnership agreement, they would then have to have them translated, they would" probably, then, if they were wise, seek for a guarantee and even if they went to all that trouble, what guarantee bate that they have been shown the right partnership agreement? What guarantee have they at a later date when things go wrong and when partners disappear and action is brought into Court that an entirely different partnership agreement will not then be put before the Court when the men of substance have disap- peared and only men of straw are to be found 7.
I submit that the evidence which is What is the object of having limited
liability companies and limited partner.
dealing with them to know the full facts
in the first place and to prevent dis
Optional Goods will be landed hare npless limiting the liability of partners in a bitter edd, as it has been in this case. of credit and must therefore deal af
it
опе
Aird Cour, actor. McDonald-gaid his it certainly goes we further. What hap a witness by no ship except to allow people Goods are being landed and placed AT THEIR firm had had most extensive dealings in pens no doubt in these cases is that the max in the Hongkong and Kowloon Wharf and Chinese partnerships, particularly with natural Chinese characteristic compro
honesty and forgery in the second. If Godown Company's Godowns at Kowloon,
bone probably more than any other firms in, ters where partnership losses are incurred such a custom is sanctioned by this Court where each Consignment will be sorted out those which had gone into liquidation-mise always comes into operation in, met-
Delivery can
China. He did not know of any custom and the matter is never pursued to its, it must lead to a tremendous contraction Mark by Mark and
landel the Goods are
or two cases of The Chinese among themselves have staggering blow at the business of this fiquidation the full means of forcing recalcitrant partners to port. I submit it is contrary to the Enstructions have been given to the contrary partnership. In
partnership 6 hours before arrival of the Steamer.
hoot cleared within 8 daye, including amount of the loss had been obtained pay up their share of losses which are law of every foreign country in the from one or two out of the whole of the not open to foreigners. I say, therefore, world which makes provisions for limited date of arrival will be subject to Bent
In answer to Mr. Preston-He bad been that there is no such custom and, if the companies and limited partnerships," "No Fire Insurance will be affected by us in partners.
At this stage, the Court agreed to ad- various cases are analysed, it will be any whatever.
Damaged Packages must be left in the
found that the creditore and the partners journ until tomorrow afternoon, when evidence will be given by Mr. A. L. Godowns for examination by the Consignees.
have always compromised.
It is true that I have not called, Dickson and Mr. McDonald will continue and the Company's surveyors, Mesers. GODDARD Docuzas at 10 am., on Mondays and
Chinese witnesses and there are obvious his argument. reasons for that. I need possibly allude Thursdays, within the Free Staregs period.
All Claima against the Steamer must be pre-
only to one and that is the perfectly natural disinclination on the part of any sented to the Undersigned on or before the 9th
Chinese to come forward and give April, 1922, or they will not be recognized,
No Claims will be admitted after the Goods
evidence which can only involve some of tave left the Godows..
his own fellow countrymen in bnancial losses.
MACKINNON, MAUKENZIE & Co.,
Agents. Hongkong, 20th March, 1928.
[3344
HAMBURG AMERIKA LINIE.
THE Steamship
"OLDENBURG* haring arrived, Consignees of Cargo by her are bereby notified that all Goods are being landed at their risk into the hazardous and/or extra hazardous Bodowns of the Hongkong and Kowloon
Wharf and Godown Co., Ltd., whence, and/or from the Wharree, Delivery Cas be obtained.
No Clairas will be admitted after the Goods have left the Godowns, and all Goods remain ing undelivered after the 26th March, 1926, will be subject to Bent
All damaged Fackages will be examined by Menara Goddard and Donglas (Marine on 25th March, Surveyors) at 10
1926.
a.m.
No Fire Lasoranes will be effected Bils of Lading will be countersigned by
JEBBEN & O
Agenta, HONGKONG, (3345
Hongkong, 19th March, 1926,
TE NEW FRINCH XXXHDUT
THERAPION No. 1 THERAPION No. 2 THERAPION No
3
Wo. 1 for Bladder Ösborrhizz 15. 3 for Nicod ́à Buto Dimeres No. for Obecnie. WanİENDONG, BOLA NY MALARIAS CHERRIES, PERE ZU MARSAKE IL DIL. I. 1 Ülase Man Com Baywwbook Rd. How London, ON
AL FUN 30, Eman ft., Kry YORK DIE, OR 17"
three years with his firm and based bis opinion entirely on cases decided in the Mixed Court. By referring to his files he could quote cases in which certain partners had paid more than their pr rate share.
Mr. McDonald said he would deal with those cases in his speech.
The Assessor-When a partnership is bankrupt and a loss has been sustained what do you do about the balance not recovered from the asseta ?
เ
There is also a further point that Witness: In the first place we ask the the mere fact of calling one or two partners to pay according to their Chinese who would say that they know ownership in the partnership. Failing of no such custom would not, I think; collection from any one of them were add in any way to the value of the commend to the Court that they should evidence which I have already called. ask each one to be held liable for the whole amount owing. That is custom within my experience.
The Assessor-As far as you know the custom is limited to that there is no custom by which the liability of partners is limited to their p rata shares?
Witness No, it is limited only to the total.
"'TWO PARTNERE PAY FOR ALL-
The Assessor-What was the result when you recommended to the Court that solvent partners should be summoned to make good losses incurred by the part- nership on behalf of the insolvent part- ners-In one case I resember two part- nere paid the whole amount owing by all the partnera.
LORD HALEBURY QUOTED.
Let me turn now for a moment to the question of custom or trade usage and I can find no Chinese legal authority which deals with this matter perhaps I may be permitted to refer to Lord Halsbury's standard work" The Laws of England-1 quote Lord Halsbury not as an authority on Chinese Law; in the slightest but merely because I think that just as we British in our Courts pay attention to American and other de cisions in cases where fundamental prin- ciples are at stake and where the Law is not clear, so also possibly Chinese Courte American decisions or law as a guide will consider, at any rate, British or in question of doubt.
in
Mr. Preston then called & Director of the Cotton Yara Guild who had been in Now the relevant passages from Lord
are. contained business locally for 31 years and who said Halsbury's book that solvent partners were only respon- Volume X pages 218, 218 and 121
With regard to the passages which L sible for any losses in a partnership pro rata in their shares. They were not re have just now read, perhaps it would be sponsible for any partners who ran away. i convenient if I made a submission with Other leading members of the Chinese regard to the custom or usage which has business community.
similar, been set pp in this case.
evidence..
gave
SUBMISSION OF NO CUSTOM.
There was an interesting passage-at- My submissions are that the custom arms between a member of the Committes of the Bean and Rice Guild and Mr. or usage which, has been set up is not McDonald when counsel came to cross a custom because it is not proved that it has extended from time immemorial: examine.
secondly, it is not confined to a limited liability; thirdly, it is not reasonable; fourthly, it is not certain.
The Magistrate had pointed out to witness that several decisions of the Supreme Court of Peking were adverso, to the custom upon which he bad give
(Oontinued on "next Column.)
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