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Mr. Francis said the question was purely one of law; it was simply a question of the in- terpretation of the agreement.
Mr. Slade agreed with that remark and said that generally the facts were admitted. Two facts only were disputed. Que was whether the defendant was a money lender as he was described in the petition, and the other whether the plaintiff was the mother of one of two men mentioned in the agreement.
Mr. Francis said his friend could describe the defendant just as he thought best.
His Lordship asked if it was intended to argue the question of law at once.
THE HONGKONG WEEKLY PRESS AND
Mr. Francis replied that it would be more convenient to briefly state the facts first. He then said the action arose out of a matter which had been before his Lordship in various forms before. Two persons entered into part- nership as the Kwong Hop Wo firm apparently for the purpose of taking up a building contract with the Land Investment Company. They entered into a contract with the Company to pull down certain old buildings and erect new build- ings for the sum of $17,500. Before consenting to enter into the contract the Company required that somebody should give security for its fulfilment. The Kwong Hop Wo Firm applied to the defendant to becon security or to obtain | a friend to become security. Defendant ageed to give or obtain security on the stipulation that he received a certain remuneration and that he was also given s curity for the payment of the remuneration. The plaintiff, who is the mother of one of the men constituting the Kwong Wo firm, agreed to give that security. Au agree- ment was drawn up between the Kwong Hop Wo Firm of the first part, the defendant of the second part, and the plaintiff of the third part, and the sole question before the Court was as to the interpretation to be put upon that document under the circumstances that had happened since the making of it. The Loud Investment Company accepted the security and the Kwong Hop Wo firm obtained the contract. Under the contract two payments of $2,000 each were made to the defendant, but before the buildings were completed the Kwong Hop Wo firm became insolvent and incapable of carrying out the contract with
the Company. A new contract was consequently made for the completion of the buildings. It was pretty evident that what the defendant desired to ob tain was 5 per cent. of $17,500, the amount for which the contract had been settled. He also stipulated for one-sixth of any extra payments the firm might get if the buildings were completed before the pre scribed time. Further, he stipulated that if the firm continued in business after the completion of the contract they should pay him $15 a month. The plain- tiff's contention was that the firm never com- pleted the buildings as the partnership was dis- solved, and therefore the stipulation as to the $15 to be paid after the period of completion fell to the ground. The point in dispute was whether in the agreement that was drawn up between the parties the defendant sufficiently stipulated for 5 per cent. of the total amount of the contract to enable him to get the full pay- ment of the 5 per cent, or only 5 per cent. on cer- tified instalments of money paid. The pliantiff's case was that in the agreement there was no ex- pressed or implied undertaking either by the Kwong Hop Wo firm or the plaintiff that the Kwong Hop Wo should complete the contract and should earn the whole of the money. Counsel then read and criticized the agreement, which, he said, had been before the Court so many times that it had become a fixture.
Mr. Slade, on behalf of the defendant, said that by the agreement the plaintiff was bound to pay 5 per cent. on the total amount mentioned in the contract even though the Kwong Hop Wo firm failed to carry out their part of the 'contract,
His Lordship reserved judgment.
29th November.
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to the whole of his claim judgment be entered for the defendants' costs of and incidental to the plaintiff's claim to be taxed, and for judg ment that the wages of the crew retained on board the s.s. Ningehow by the defendants in pursuance of the order of the Honourable Court, dated 9th December, 1896, and the expenses of the said ship to the date of judg ment be paid by the plaintiff to the defendants when ascertained, and that the matter be re- ferred to the Registrar of the Court ascertain the amount of the said wages and expenses, and for judgment that the plaintiff pay the defendants the sum of $1,000 for com- pensation for the expense and injury occasioned by the issue of the warrant of arrest in this suit
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Mr. J. J. Francis, Q.C. (instructed by Mr. II. L. Deunys, Crown Solicitor), appeared for the plaintiff and Mr. E. Robinson (instructed by Mr. H. W. Looker, of Messrs. Deacon and Hastings's office), for Henry Claude Benneriz and Iquatz Pollak, the defendants.
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Mr. Francis said he had a preliminary objec- tion to make to the form of the notice of motion. He submitted that in so far as the motion asked for judgment for defendants' costs the form was irregular and not justified by any provision of the Code or anything in the practice under com- mon law proçedure. Counsel contended there were two methods by which the defendants could. obtain any decision in this suit in conseqnence of the plaintiff having withdrawn the suit. One method was by motion to dismiss under Section 49 of the Code. The section ran as follows:-- Dismissal for want of prosecution. Where the plaintiff does not obtain an order for setting down the cause within one month from the time at which he might first apply for such an order, the defendant may apply by motion for an order to dismiss the petition for want of prosecution. On such application the Court may, if it thinks fit, make an order dismissing the petition, or make such other order, or in pose such terms as the Court thinks reasonable." The only other method with which counsel was acquainted by which judgment could be obtained was by setting down the cause for trial under section 61, which said :-- When a cause in the bearing paper has been called on. if neither party attend in persou or by counsel, the Court, on being satisfied that plaintiff is received notice of the hearing, shall, unless it sees poo? reason to the contrary. et ike the cause out of the hearing paper. If the plaintiff does not at- tend in person or by counsel the Court, on being satisfied that the plaintiff has received notice of the hearing, shall, unless it sees good reason to the contrary.strike out the cause and make such order as to costs in favour of any defendant appearing as seems just." If the latter course had been adopted the judgment would have been one striking out the cause with such costs as the Court thought fit to award. The judgment under the other section would have been a judgment dismissing the suit and not judgment for the defendants. An application for leave to enter judgment for defendants with costs of suit was not warranted by anything in the Code,
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Mr. Robinson, in reply, said his learned friend had entirely overlooked the difference between the Hongkong rules and the rules either under the Judicature Act or the Common Law Procedure Act when be advanced his objections under the Common Law Procedure Act. The fact was that plaintiff had withdrawn his case. There was no case of the plaintiff before the Court. Counsel declined treat the case under section 49 section 61, because if he had done so he would have been treating the case as a case before the Court, which it was not. Section 66 of the Code provided that the plaintiff may withdraw his suit with the limitation that if he withdraws without leave he shall be precluded from bring- ing a fresh suit in the matter. Subject to that a plaintiff could withdraw his suit at any time. And so it was under the Judicature Act. The defendants therefore had to look for some other
BEFORE SIR JOHN CARRINGTON (CHIEF form of judgment than the forms referred to
JUSTICE.)
THE EMPEROR OF CHINA V. BENNERTZ
AND ANOTHER.
In this case the defendants moved that the plaintiff having withdrawn this suit in regard
by the learned counsel for the plaintiff. He (Mr. Robinson) had therefore framed the mo- tion on the first Lead as to judgment with costs upon discontinuance of action set out in the appendix of the Judicature Act, A fortiori sections 49 and 61 did not apply, as there was no case before the Court.
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[December 2, 1897.
Mr. Francis, in reply to Mr. Robinson, said that if Sections 49 and 61 did not apply and there was no case lefore the Court bis Lord- ship was entirely without jurisdiction, unless it was expressly given, to award defendants costs or give any relief.
His Lordship-It might be a hard case, then. Mr. Francis said it might be, but if the case was, as his friend said, withdrawn and not before the Court, the Court had no power to make any order in relation to the suit. His friend's allusions to the Judicature Act had been extremely slap dash,” as he had not noticed that it had nothing to do with the present case. Not a single word of the Judicature Act was in furce in Hongkong. The Court could be moved in these proceedings either by the Code or the Common Law Pro- cedure Act and its rules. Section 49. was applicable. It was a case of dismissal for want of prosecution. What was that but a with. drawal? It was a withdrawal and nothing more.
His Lordship reserved his decision.
HONGKONG GENERAL
OF COMMERCE.
CHAMBER
At the monthly meeting of the General Com- mittee of the Hongkong General Chamber of Commerce. held at 3 pm. on Friday, the 19th November. Present: Messrs. R. M. Gray (chairman), Herbert Smith (vice-chairman), N. J. Ede, T. Jackson, St. C. Michaelsen, N. A. Siebs, T. H. Whitehead, and K. C. Wilcox (secretary).
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MINUTES.
The minutes of the previous meeting (beld 8th October) were read and confirmed,
THE REGISTRATION OF TRADE MARKS,
A letter had been despatched (on 19th Oct.) to the Colonial Secretary acknowledging receipt of his letter of the 5th idem enclosing copy of Attorney-General's minute, and suggesting that where publication in advertisements of illustra- tions would entail heavy cost, a lucid descrip- tion of the trade mark should at least be given in lieu thereof.
THE COMMERCIAL AGREEMENT BETWEEN GREAT BRITAIN AND BULGARIA,
In reply to the letter of the Government fransmitting copy of above agreement and re- questing an expression of Chamber's opinion thereon, a letter was despatched, on the 19th October, to the effect that the Committee saw no reason to take exception to the provisions of the Convention. Letter had with other cor- respondence since been published in Government Gazette.
THE PINNACLE ROCK FUND. In view of the recent wreck of the steamer Nameo on a rock said to be uncharted, a letter was, on the 22nd Oct., addressed to Commodore Holland drawing attention to the existence of the above fund, and suggesting that H.M.'s vessels when engaged in surveying on the China coast ruight be empowered to offer rewards therefrom for information regarding unknown or hidden dangers.
Read reply, dated 25th Oct., stating that copies of Chamber's letter had been forwarded to Admiral and to hydrographer of Navy, and that instructions would be given to officers of Phoenix, shortly to be employed in surveying the harbour of Swatow, that application may be made, through the Commodore, to the Chamber for any awards to fishermen or others for im- parting information concerning unknown dan- gers.
Decided to acknowledge receipt of letter and to intimate that the view of the committee with regard to the amount of reward was a maximum of $50 for an important danger. It was also decided to ask the British Consuls and the Commissioner of Chinese Imperial Maritime Customs to assist in making known among the Chinese maritime population that rewards are offered for information of unknown dangers on the coast.
DANGERS TO NAVIGATION OFF SOCOTRA.
Read letters from the Board of Trade in reply to Chamber's letter of the 17th August, stating that the matter is receiving attention from Birmingham Chamber in acknowledgment of Chamber's circular letter of 20th August; and from London Chamber, also acknowledging receipt. of Chamber's letter of same date and
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