1930-08-29 — Page 8

DECISION OF FULL COURT.

LAND MORTGAGE CASE APPEAL.

LOWER COURT JUDGMENT- UPHELD.

JUDGMENT IN THE LAU CASE.

COMMENT ON BREACHES

OF DUTY.

ADMINISTRATORS' LAXITY.

In giving his decision at the Supreme Court yesterday in

IL

HONG KONG DAILY PRESS, FRIDAY, AUGUST 29, 1930.

KOWLOON MOTOR FATALITY.

YOUNG CHINESE RUSHES IN FRONT OF LORRY.

The circumstances surrounding the death of a 19-year-old Chinese, who was knocked down by a lorry on August 2, were inquired into' at Kowloon Magistracy "yesterday,

RIVER BOATS CONJUGAL TANGLE

SOLD.

IN RUMANIA.

CHARLES HARDOUIN. AND PAUL BEAU.

CANTON WHARVES FETCH $60,000,

Two more river boats, changed

QUEEN HELENA AND RECONCILIATION.

COUNTRY ON VERGE OF TURMOIL.

Bucharest, "August 99--King

the recent action. the Chief Justice with Mr. Whyte-Smith as Coronas changed hands yesterday when the Carol's conjudgal prospects are, it;

the estate even after 32 years, and the mortgaging of property to secure the overdraft of, a firm.

Judgments of the Full Court of Appeal were delivered NE Supreme Court yesterday in a (Sir Joseph Kemp) commented on property mortgage case, The three the fact that the legal personal re-, Judges affirmed the finding of the presentatives of Lau Ping, or some lower Court and dismissed the apof them, appenged to have been peal with costa...

guilty of several breaches of duty, The appeal was against a judgely, in the failure to administer ment of Sir Henry Gollan given in favour of the plaintiff, Li Po Kwai, alias Li Kan., Plaintiff claimed that an assignment of property be tween himself and his son did net give the latter any beneficial rights. The property was alleged to have been mortgaged by plaintiff's son to Tsang Chuen, for $25,000. Ai order was made to reassign the property to the plaintiff free of the mortgage.

4

The judgment referred to the case in which Lau Yick Cheuk, as ad- ministrator de bonis now of Lau Ping, deceased, claimed against Lau Lam Shi, executrix of Lan Yu Fong, deceased, a declaration that certain properties" formed part of the estate of Lau Ping, and were

Mesars. E. W. Duggan, C. Soares and Mak Kak Chau formed the Jury.

The driver of lorry No 2199, stated that on August 9 at 10.30 am. he was driving along Nathan Road, going North. It was then raining, Just before the fatal pe- sident, which was at the junction of Nathan Road and Argyll Street, witness' lorry was about 80 feet be- hind a motor bus, and there was also a private motor car coming in the opposite direction.

steamships Charles Hardouin and appears, changing kaleidoscopical. M

Paul Beau were sold by publicly, every day bringing forth a auction by Messrs. Lammert Bros. fresh crop of rumours. While ear- They were put up in one lot a ly this week it was reported that they are now lying in the Harbour the King had decided not to sa- Hong Kong and their dimensions nul the decree divorcing him from are identically the same, they being Queen Halena and an early date sister ships..

would marry a beautiful Franch. Duchess, it is now persistently rumourd that the King is contem- plating a morganatic marriage. with his former mistress, Madame Canton Wharves.

Lupescu, who is still in Bucharest und has been lately wearing 4 Following this one lot of wharves, namely, the Sam King Wharf, triumphant mien, which has Tak On and Por Po Wharves were tion of Queen Helena not to re- Chung Sun Wharf and the Hop parently strengthened the resolu

was rather brisk. The opening 'bid

About eight or nine feet away, a man was seen attempting to cross

The opening bid was $200,000 and there being only one advance, the vessels fell under the hammer to Mr. Ko Ho Ning at $305,000.

41

ap-

bought by the plaintiff and the said the road in front of witness' lorry. up for sale and here the bidding turn to King Carol and also in-

Lau Fu Fong out of moneys foria. ing part of the estate.

Mr. H. G. Sheldon was for the plaintiff. Mr. Eldon Potter, K.C., and Mr. F. C. Jenkin were for the

He appeared to have come out from Argyll Street. The driver sounded his horn, but the man continued to

come in front of the car. Witness

applied his foot, and hand brakes,

but it was too late. The man was

was $50,000 but the hammer did not duced her to put a distance be fall till this was increased to tween herself and her former bus- 260,000,

band by leaving for the fashionable Black Sea resort Constanza.

When interviewed by a Daily free representative after the sale, regarding his plans for the future, Mr. Ko said that he had not yet

It is now certain that Queen Helena withstood entreaties, that.

In the course of his judgment his knocked down and witness could decided what to do with his newly the negotiations broke down com feel that the front right wheel had acquired vessels. It would be un- gond over the victim.

other fortnight before his plans could be definitely settled.

Mr. F. G. Sheldon, instructed by Mr. F. X. d'Almada, senior, of Messrs, d'Almada & Mason, was for appellant, and Mr. Eldon Potter, K., together with Mr. F. C. Jenkin, instructed by Mr. Edefendant. Davidson, of Messra. Hastings, Dennya & Bowley, was respondent. Lordship said that without any authority Lan Ping's personal re- Presiding Judge's Views. - presentatives allowed his share to remain in the Kung Yuen firm and In the course of a lengthy judg they have never wound up the ment by Sir Peter Grain, the pre-estate, and by this rerious breach siding Judge, which was read by of duty they have rendered them- Sir Joseph Kemp, his Lordship said selves liable to the beneficiaries, to that the "witness was cross-examin- to account in accordance with the whom they may at any time have ed and it appears to me on reading principles of section 43 of the bis evidence that his testimony was Partnership Ordinance, 1897. unshaken. Moreover, although the son of the witness was a party to

the case, being one of the defend ants, he does not come to give any evidence and one must therefore assume that be accepts, as well as his co-defendants, the statements made by Li Po Kwai, the plain- ti"

The learned judge in the Court below finds that there was gross negligence on the part of the ap pellant and his agent in not calling for the production of the 1917 assignment, the memorial of which appeared on the register, and that that negligence was sufficient to postpone the legal estate of the appellant (then defendant) to the equitable rights of the respondent (then plaintiff).

After quoting the facts and law regarding this point, his Lordship stated: I consider that the gross negligence in this case is quite sufficient to support the decision of the learned judge below and therefore uphold his decision on this point

Estoppel Point. -

It has been also argued on behalf of the appellant that the respond ent" is estopped from denying that his son had any beneficial interest in the property by the fact that on the face of the assignment is set out the fact that the son had paid $18,000 ás consideration for the

property assigned and par. 53 Volume 13 of Halsbury's Laws of England is cited,

tion..

Irregular. Procedura.

In carrying on the business of the Kung Yuen, and in dealing wong Yue Tong account, the legal with the moneys paid into the Lau

personal representatives of Lau Ping, or some of them, appear to have been guilty of several breaches of duty, eg, the failure to ad- minister the estate even after thirty- two years, and the mortgaging of the Yuen Yuen Godown property to the Hong Kong and Shanghai Banking Corporation to secure the overdraft of the Kung Yuen firm.

I wish to say nothing to minimise the gravity of such breaches of duty, which might entail very serious consequences on the legal personal representatives of a de- censed person, and if the course, followed in the case of this estate is a common practice in the case of Chinese partnerships I think that the legal personal representa- tives of a deceased partner run a grave fisk if they follow it, as the, beneficiaries remain entitled to the' value of the share of the deceased partner at "the date of his death,' plus either the profits attributable to the lane of his share of the part- nership assets or eight per cent. per annum upon the amount of such

share, at option. This risk is rust even if the legal personal repre- sentatives have acted in perfect good

faith,

Temporary Safeguard,

In view, however, of the serioas breaches of duty to which I have. referred, and to the ignorance of

The lorry driver found the in- jured man underneath the running beard. Two Europeans assisted in putting the victim on his lorry, and witness then drove to Mongkok

EUROPEAN LADY'S ESTATE IN HONG KONG.

pletely, and that even Queen Dow- ager Maric's peace mission failed.. Although, according to reports cur- mely weak and near hysteria, she rent here, Queen Helens is extre-

insists on having her revenge even at the price of sacrificing the peace

Police Station. An ambulance was MISS HELEN THOMAS LEAVES of the country which is once more

sent for, and the man was removed to hospital.

In answer to a question from the Jury, the driver said that at the time he was driving at about 12 miles per hour.

الأريه

"

the

Medical evidence was given by

Uttley, who stated that injured man was admitted to Kow loon Hospital, suffering from severe pains in the abdomen and chest. He was too ill to be operated upon and died at 3.55 p.m. the same day. A post mortem examination reveal ed that the deceased had six ribs died of shock and interual haempor- on his right side fractured, and bad rhage.

ין

After hearing further evidence, death by misadventure." the Jury returned a verdict of

MOTOR OBSTRUCTION EXPLAINED.

DEFENDANT SATISFIES THE BENCH.

When Mr. Jackson Deo appeared before Mr. R. E. Lindsell yester day to answer a summons for ob- struction caused by his motor being left unattended in Gresson Street on August 9, Mr. Lindael! asked defendant why he had ignored the summons previously.

ing defendant had sent his chauffeur It appears that at a previous hear-

intimated that defendant must him- to defendant by Traffic Sergeant

The defendant explained his pre- vious absence by the fact that he knew nothing of the offence and he thought it was far more sensible to send the chauffeur alone.

Regarding the charge of obstrue tion, defendant said that he stored the car at No. 14, Gresson Street, and owing to the fact that the stair way on the premises was being repaired at the time, the car could

as his chauffeur knew all the facts,

$124,400.

on the verge of turmoil.

been granted to Mr. D. J. Lewis, beea definitely postponed until next

Resealing of probate of will has

Meanwhile the coronation has solicitor,

as the lawful Jocal attorney in the estate of Miss Helen spring. As Carol apparently fears Strachan Lloyd Thomes, late, of a scandal during the coronation. Yama-co Cottage, Willingdon Road, An extraordinary session of Par. Eastbourne, Sussex, who was last liament has therefore been called whose dead body was found at the for the beginning of October when, above dress on March 13, 1930. it is anticipated, an important an- Testator's cousin, Mr. Allan Stow

nouncement respecting the royal Young, has been appointed as one will. of the trustees and executors of the family will be made.

seen alive on March 2, 1930, and

Estate in Hong Kong amounts to $124,400. Bequests, including pro- perty in Japan, are made to re- the residue of the estate is to go latives, and testator directs that

to the Christian Social Union for the establishment of a rest home in the country for women and girls at the discretion of the trustees.

LAND WANTED BY POLICE.

GOODS TO BE REMOVED WITHIN THREE WEEKS.

Buddhist Priest's Estate.

A piece of land situated behind Cheung Hung Chun, a Buddhist the Yaumati Police Station was priest, fate of 3, Sha Po Road, the cause of a dispute at the Kow- Kowloon City, whose death on February 15 last formed the subject loon Magistracy yesterday when of a murder charge at the Supreme Mr. F. H. Loseby made an appli Court, left estate valued at $1,000.

cation on behalf of his client for time to remove his possessions from the plot.

He died intestate, leaving Cheung: Yum, alias Cheung Hn, his brother and next-of-kin, to whom letters of

been granted.. administration to the estate have

ALLEGED FRAUD ON RAILWAY.

FORMER EMPLOYEE

CHARGED.

It was stated by the police that they wanted the piece of land for traffic purposes and that if the ob- struction were to remain there, it would be made a haunt of undesir- able characters in time of trouble.

Mr. Loseby stated that his client,. knowing that there would be more expense incurred to remove the stuff

Mr. Whyte-Smith granted the up- plication for three weeks, in which to remove the stuff.

railway tickets was mentioned to Mr. Whyte-Smith" at Kowloon it, and wanted to get the stuff re- Magistracy yesterday, when the moved to Canton. Kowloon-Canton Railway prosecut ed a Chinese youth, formerly em played by them as a bar boy, for having unlawfully sold a third-class ticket to a Chinese lady for 55 centa, and also for having unlawfully. used one third-class ticket for a journey other than between Canton and Kowloon.

But to set up estoppel it is neces- those duties which has been display to Court, and the Magistrate had sary that certain events occur and ed, I am not prepared to order the are proved, viz., intention that it properties to be assigned to the self attend. The fact was conveyed A further case of the misuse of than it was really .warth, had sold should be acted upon and was in plaintiff, without some temporary tended to be acted upon, that it safeguard. The defendant will," Baker. was acted upon and that the person therefore, be ordered to assign the who did not upon the representa respective properties in question to tion thereby prejudiced his post- the plaintiff when required by him to do so for the purpose of the In this case, all these elements immediate sale of the respective are missing. The appellant and properties and the plaintiff will his, solicitor never saw the assign-

be ordered to pay the net proceeds ment and there has not been the of any such sale forthwith into slightest evidence that the respon Court to await any order which dent intended the statement of con- may be male in the administration sideration to be acted upon. In action O.J. action No. 158 of 1930, deed, he always kept the deed in which has been begun by the pre- his own possession and no-one saw sent defendant. it but himself. The misrepresenta- tion must be the proximate cause of the altered position. I am therefore of opinion that the argu- ment of estoppel cannot be main tained in this case.

Appeal Dismissed With Costs. The judgment concluded:-" I have heard nothing to cause me to disagree with the judgment of the learned judge, below. Therefore, I hold that this appeal be dismissed with costs. 12

Sir Joseph Kemp and Mr. Justice Wood concurred with this finding in separate judgments delivered by them

PORT QUARANTINE REGULATIONS.

I think that Lau Lam Shi acter not be got in. The fact that the August 26, the defendant travelled MASTER OF SWEDISH VESSEL

quite reasonably and properly in defending this action as she did. I therefore think that on the autho rities cited on her behalf she is entitled to her tosta as between solicitor, and client, out of the

estato.

ACTING SILLY" IN COURT.

'⠀ BAG · SNATCHER'S RUSE

FAILS.

According to Mr. I. B. Trevor, trafic manager, on the morning of

stairway was under repair was con- on the down Canton express. In- firmed by Sergeant Baker accordance with the regulations His Worship registered a caution. governing the $1 ticket which the defendant had bought,, he should have got off at Kowloon Station," at Shum Chun Station. The fare but he was seen to leave the train

from Canton to Shum. Chun was $2.30, and defendant's ticket did not permit him to alight there.

The defendant waited at Shum Chun till the arrival of the evening train from Canton, when he took the opportunity of selling his ticket to a Chinese lady. When alighting from the train in the morning, he had not handed his ticket to the collector.

CHINESE YOUTH SERIOUSLY - INJURED.

CRUSHED BETWEEN WALL AND CAR.

FINED,

At the Marine. Court yesterday,

Shantung was summoned for (a) Captain Hugo Borlin of the s...

failing to fly and keep flying a yellow flag (letter Q) on his ship, which was a healthy vessel," on entering the waters of the Colony, and (b) failing to proceed to the Quarantine Anchorage, on arrival, the Shantung being a healthy vessel.

A Chinese youth was seriously in- Because he was faced with a jured as a result of being crushed

It was stated that the Shantung. charge of snatching a hand-bag between a motor can and a wall at

which is a Swedish vessel, arrived from Mias S. Remedios in Des Voeux the Kowloon Godowns on Wednes

from the Philippines on Wednesday Road near Central Market on Tuesday whilst the vehicle was being The evening train left Shum morning, and a notification isqued day Chinese adopted, a novel unloaded from the lighter after Chun, and the defendant boarded last month declared Cebu to be DEATH PENALTY FOR

method of persuading the Magis baving been brought from Hong it without a ticket.

cholera-infected, Captain CANTON'S THIEVforce the case we macca thacrifood thus the cry the Tayyy and Turemat The Born Bird Thur the the need were

trate to believe in his innocence. Kong.

Meanwhile, continued Mr. Trevor, Admitting the PAZAR ZM bet

and blinked to give the inuretor had been configned to the Duro Ticket had no fuspicions aroused, committed throughout Hiekane * In view of the fact that thieves, that he was insane. but nothing Motor Garage: Co. from Mesars, and approached the Railway off rather than through deliberate in- pickpockets and burglars resume would shake the weight of evidence Gilman & Co. On the arrival of sisis. As a result the defendant tentions on the part of his officers their nefarious trade after sen- against him and he was sentenced the lighter at the Kowloon Go was detained and was identified by to violate the laws of the port. He tences of imprisonment have been to twelve months hard icbour and downs, it was alleged that one of the Kewloon office the following had been master of several ships served, the Canton Police Hend twenty-four strokes of the birch. the crow, in trying to drive the car morning, padedag which had had to enter the waters quarters have decided to inflict The defendant's arrest was caused of the crane, ran it against a wall After evidence had been given by of the Colony during the past 15 death penalty to them in future. | by a Chinese gentleman named and crushed the youth who was this lady and alm by a ticket colles--years and this was his first offenec, k A. notification will be issued wain" Tong," who, however, could not be sitting there. The was afterwards tor, his Worship.adjourned the case Fines of 825 on each count were ing them to this effect.

traced,

rushed to hospital.

till August 30.

imposed.

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