February 19, 1898.]
Should the road be used at all for bicycling, and (2) If so should not the bicyclist be subjected to regulations that would prevent his interfering unduly with the comfort of others? Something may be urged, perhaps, on the side of the bicyclist. The pastime is becoming increasingly popular with both sexes and those who indulge in it bid fair in a short time to outnumber those who do not. Should not their interests be considered as well as those of pedestrians? But unfur- tunately Bowen Road, which affords such a delightful "spin" for the bicyclist when it is clear, is so narrow that if a few pedestrians or chairs and bicycles happen to meet danger must arise. Of course there are bicyclists and bicyclists, some who know how to manage their machines and are also con- siderate of the rights and comfort of others, and some who are inexpert or who think it adds to their enjoyment to give pedestrians a start by rushing past them at a rapid rate. As the matter stands at present the bicyclist is subject to no control at all. It is true that wheeled vehicles are not allowed on Bowen Road; but legally a bicycle is not a vehicle; consequently bicycles are not prohibited. The flying of kites, however, is prohibited, and we think it will be generally admitted that to the pedestrian a bicycle must be a greater source of danger and annoyance than a kite would be. If the use of bicycles on Bowen Road is not prohibited altogether, regulations ought at least to be made re- quiring them to proceed at a molerate pace and to carry lights after sundown. Regula- tions are indeed required for bicycling in general, but there ought to be special re- gulations in regard to Bowen Road,
SUPREME COURT.
12th February:
IN ORIGINAL JURISDICTION.
BEFORE SIR JOHN CARRINGTON (CHIEF
JUSTICE).
was
GORHAM V. BENJAMIN, KELLY, AND POTTS. The hearing of this case resumed. Plaintiff claims for accounts of his transactions with the defendants and of all monies received
and paid by the defendants from the 1st April, 1896, to the 15th March, 1897, and for pay. ment of any amounts that may be due by them to the plaintiff,
Mr. J. J. Francis, Q.C., and Mr. M. W. Slade (instructed by Messrs. Wilkinson and Grist) appeared for plaintiff; Mr. W. V. Drum- mond and Mr. H. E. Pollock (instructed by Messrs. Johnson, Stokes, and Master) appeared
for the defendants.
The special jurors were.-Messrs. N. A. Siebs, H. H. Kirch, J. Andrew, G. C. Anderson, J. Thurburn, H. N. Mody, and W. Poate.
Mr. E. 8. Kelly, one of the defendants, con- tinued his evidence. He said that the members of the firm looked after their respective constituent. The plaintiff was a constituent of Mr. Potts, and witness had never called on him regularly or frequently. He was quite positive he did not call on the plaintiff on the 6th or 7th April. On the morning of the 6th April, Mr. Potts met witness near Connaught House and told him he had 100 Indo-China shares from Mr. Gorham and 50 from Mr. Whitehead for sale, Mr. Potts did not mention any price. Witness said he would take them at $40. A short time afterwards Mr. Potts said he closed the transaction for the whole of the 150. Shortly after witness met Mr. Polishwalls and told him he had got 150 Indo-Chinas for him, and he asked
115
tion in English of Kadoorik. My elder brother translated it.
tell you the truth I do not know. When I came His Lordship-How do you spell it P-To to China my name was Kelly. (Laughter.)
from, Mr. Kelly, as you are not a countryman Mr. Francis May I ask you where you came of mine ?-I came from Bagdad. (Laughter.)
in keeping the accounts or books, or make Are there any reasons why you did not assist
I do not understand the English language entries, or do anything of that sort ?-Because sufficiently.
A little.
In fact you are not able to write English -
You are not able to read English fluently ?- A little.
When in the firm of Benjamin and Kelly had you anything to do with the books ?-I used to keep the books in Arabic.
-
Arabic until Mr. Potts joined ?—Yes.
And the books of the firm were kept in
And perhaps you think it is a pity they are not kept in Arabic now ?-No, do not think that.
Your first business with Gorham personally · was after Mr. Potts joined the firm ?-Yes. firm as one of his constituents ?—Yes.
Mr. Potts practically brought Gorham to the
I effected a sale of Banks on 7th September. In answer to further questions, witness said- Up to some time in 1897 the firm had an account in the Chartered Bank. The Chartered Bank did not dislike making advances on Hongkong and Shanghai Bank shares; the Hongkong and Shanghai Bank disliked making advances on Chartered Bank shares. It was 15 Bank shares we sold for Mr. Gorham on 7th Septem- ber. in. It was not because the Chartered Bank I cannot tell how much they brought did not want to advance on those shares that Mr. Gorham was urged to sell.
CHINA OVERLAND TRADE REPORT. and spoke to Mr. Potts, who then went to witness and said " Mr. Perry has got an order but he cannot pay 841 as he gets nothing from from Shanghai to buy 100 Indo-Chinas at $41, the other side." shares at $404." Mr. Potts then went to Mr. Witness said, "Give him 100 Perry, who left the office immediately after- wards. Witness gaye instructions to the book keeper, Mr. Van Neirop, to fill in the name of Polishwalla in the entry relating to 25 shares. those instructions. The instructions were given Witness could not remember when he gave in consequence of what Polishwalla had said about his friend. On the 7th Mr. Perry asked if witness could leave any more shares in his hands and witness gave him the remaining 50 to wire to Shanghai, the price being $40. Later Mr. Perry reported the sale to witness. Mr. Polishwalla did not make anything out of the transaction. Witness charged him only half brokerage--25 cents a share--and so Polish- walla did not gain anything. In regard to the West Points Mr. Potts told witness he had sold 50 West Points at 18 to Mr. Perry. Witness said he could get shares much cheaper, so Mr. Potts had done very well. Witness asked Mr. Potts to get the plaintiff to Mr. Potts said that plaintiff agreed to the sale allow double hrokerage. Shortly afterwards and to the double brokerage. Witness did not remember the details of the sale of the second lot, which was put through two or three days later. Witness regarded the plaintiff as his constituent in the transaction. Witness did not cousider it was his duty to get shares as cheaply as possible for Mr. Perry; the more he always treated each other like that. could get out of a broker the better. Brokers Witness had known Polishwalla for about 15 years and had done more or less share business with him during the whole of that time. Polishwalla was a yarn broker and did nothing in share- broking. He had been speculating in shares with several brokers all the time witness had known him. Since 1895 witness had had most of Polishwalla's business. Polishwalla had told wit- ness to close any good transaction and to inform him afterwards. Witness was in the habit of meeting him two or three times a day. Some- times he closed transactious after consulting Polishwalla and sometimes witness had reported after the closing of a transaction. Polishwalla had never repudiated any transactions put through without his being consulted. Wit- ness had put through many such transac- tions. In cash transactions the account was sent in on the following day and in time transactions the contract was sent in two or three days afterwards. Polishwalla used to get an account of cash and time transctions at the end of the each month. Witness did not thing to do with the office work. He left that know anything about the books, as he had no- work to his partners and accountant. The firm always had a sufficient margin on Mr. Polish walla's account and the profit made on time transactions was looked upon as a security, as it passed through the firm's hands. The firm had had settlements with Polishwalla, who could al- ways draw a cheque when there was a credit to his account. Witness was in the habit of buy- ing and selling shares for friends without con- sulting them first. He had done business in Tak Fan, Mr. Hardoou, Mr. Wong Hoi Chow, that way with Mr. Master, Mr. Ewens, Mr. Sin Mr. H. Wicking, Mr. Anderson, of Amoy, and others; in fact he did business for Mr. Wicking on Friday and did not report the transaction until Saturday morning. He had done business for Mr. Wicking for at least two years. On one occasion Mr. Wicking thought witness had ad- vised him wrongly and he was a little annoyed, but the result was a profit and the unpleasant ness passed away. Polishwalla had never had any partnership or interest in the defendant firm in any way whatever, nor had the other gentle-verbal guarantee. men whose names he had mentioned.
him if he would like to give 25 to his friend Moushi. Polishwalla said, "Never mind Monshi. I don't think Indo-Chinas will go up; try and get rid of them without loss if you can." After Mr. Potts and witness had had tiffin each one went to his desk. Mr. Perry came into the office with a telegram in his hand
31
Cross-examined by Mr. Francis-He had been in partnership with Benjamin about ten years. Before that he had been in partnership with Mr.
Joseph.
Mr. Francis-You are apparently an Irish- man by your name, Mr. Kelly ?
Witness-I am not an Irishman.
Is the name Kelly your adopted name ?-I have not adopted it.
Was it your father's name ?—It is a transla-
Mr. Francis-Did you not about that time sell shares for him for cash?
Witness-I have never done anything of the
+
sort.
Did your firm sell shares ?-I cannot tell, unless you show me the book.
Could you read the book ?-If you point it out. (Laughter.)
About those Banks. The facts of that trans- action are that Mr. Wicking came to you and told you that, in consequence of the threatened war, Gorham was funky about his Bank shares. You did not think there was a chance of war at the time?-I did not know much about war. I certainly would sell them myself. I recom. mended him to sell them.
It had nothing to do with pressure of the Bank at that time I do not think that had anything to do with the pressure. He was under pressure from the Bank on 27th November.
Will you kindly point out what connection there is between pressure from the Bank and carrying over of those shares at the end of November. He had to the end of December to take them up.P-By pressure of the Bank he meant pressure on the stocks he held.
What advantage was it to him to carry these shares over ?-He knew he could not convenient- ly take them up on 31st December, and he prepared himself.
And that is all you mean by pressure on the for him, and I had to go to Mr. Whitehead to Bank?-No; we had been selling some shares say that his account would be all right.
How did you do anything at that time to help him to relieve that pressure by the Bank ?-By telling, the Bank to wait and selling his shares.
Did Mr. Whitehead then -strongly resent your appearance in the Bank and speaking to him on the subject of Gorham's accounts ?-No, he did not.
Did you give a guarantee to the Bank ?-A
September, interest yourself in Gorham's affairs Why did you, in November as well as in when he was a client of Potts ? We were both sitting in the office when Gorham came in and
spoke, about the business with the Chartered Bank.
Do you mean to say that Gorham asked you to go and see Mr. Whitehead on the subject P- He did not ask me. When he told me about the matter I said, “All right, we will go and see Mr. Whitehead.”
AY
A
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