January 13, 1900.]
or got into pecuniary dificulties. It appears from the report of the Official Receiver, that the two sleeping partners, having lost their all, owing to the failure of their firm, are now living in the country working as labourers. As regards Lo Yam Chi, the managing partner. it seems be has reb- dered every assistance to the Official Re ceiver in winding up the affairs of the firm, and that his failure is owing to the misfortunes of business rather than to any misconduct on his part. His public examination was concluded on 30th November last. The unsecured liabilities | of the firm amount to $1,926, and, after payment of the costs of the bankruptcy, there will only be sufficient to pay some thirty-seven per cent, of the indebtedness. Section 27 of the Bank- ruptoy Ordinance of 1891 provides that where the dividend is less than 50 per cent, the Court if it grants a discharge, shall suspend the operation of the order for a specified time. In all the circumstances of this case, I grant a discharge to Lo Yam Chi, but suspend the operation of the order for six months from this dato.
8th January.
In Original. JURISDICTION.
BEFORE HIS HONOR W. MEIGH GOOD- MAN (ACTING CHIEF Justice) and a SPECIAL JURY.
HUNG HUI CHING AND ANOTHER V. THE CHINA TRADens' insubanCE COMPANY, LIMITED.
In this case the plaintiffs claim $41,318:34 for loss upon cargo insured by the defendants and shipped by the plaintiffs from Tientsin to Amoy upon the steamship Activ, which vessel was totally lost on or about the 9th day of Nov., 1898. The plaintiffs further claim their costs of suit.
CHINA OVERLAND TRADE REPORT.
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aforesaid voyage, but the said steamer and all as aforesaid were over-valued, was such over- the goods so insured as aforesaid were, on or valuation made with intent to defrand the about the 9th November, 1898, totally lost whilst defendant company? (4) If the said goods were on the aforesaid voyage off the port of Tamsui | over-valued with intent to defraud the defendant by the perils insured against. (6) -All things | company, does such frand so vitiate the insur- have happened, all conditions have been fulfilled, ance as to release the defendant company al- and all times have elapsed necessary to entitle together from any liability to the plaintiffs? the plaintiffs to recover in full from the defen-(5) If the said goods were over-valued with dant company the aforesaid several sums of intent to defraud the defendant company, are $40,000 and $4,318.34 respectively, but the de. fendant company has neglected and refused to and take out of court the money paid in the plaintiffs nevertheless entitled to recover pay to same. The plaintiffs therefore pray— by the defendants ?” (1)-A deores that the defendant company pay moad said it appeared to him that issues one, Continuing, Mr. Drum- the plaintiffs the said sums of $40,000 and four, and five were the issues for the Court and $4,318.34 respectively together with interest issues two and three were the issues practically thereon to date of payment. (2)-The plain for the jury to deride. He thought his Lord- tiffa costs of this suit. (3)—Such other and ship would probably concur with the suggestion further relief as to the Court may seem meet be had made with regard to the way in which and the circumstances of the case require." the issues would have to be treated, and it was Answer (dated June 20th, 1999) :- '(1)—The | clear that the two principal issues which bore defendants admit the statements in the first, upon the case were the first and third, the second, third, and fourth paragraphs of the first being whether the policy in question was a petition to be true. (2)—In answer to the 5th valued policy or not and the third whether, paragraph of the petition the defendants admit assuming it to be a valued policy, the goods were that the said steamer the Activ with all the over-valued with intent to defrand the defend- goods then laden on board of her were on or
ant company. With regard to the points of about the 9th November, 1898, totally lost on the law, he proposed to address his Lordship upon said voyage off the port of Tamsui by the perils them before addressing the jury with reference insured against, but they deny that goods to the to the facts. Mr. Drummond proceeded to do value of 844,318,34 or to anything like that value this. quoting cases, after which he submitted were slipped on board the said steamer Activ at that the first issue as to whether this was a Tientsin for carriage on board of the said steamer valued policy or not-would depend upon the Activ at Tientsin to be carried on the said production of certain documents, namely, the voyage or anyhow. (3)-The defendants fur-application, the risk note, and the policy. He ther say, in answer to the said 5th paragraph, asked for the production of the policy. that the goods shipped on board of the said Mr. Francis objected, 8.8. detru at Tientsin to be carried on the said voyage were not of the value of $44,318,34 or more than $28,539,33, and were at the time of the said insurances overvalued by the plaintiffs with the intention of defranding the defendants. (4)-In reply to paragraph 6 of the petition the d fendants say that the plaintiffs are not entitled to recover from the defendants the said sums of $40,000 and $4,318,34 or any sum or sums and admit that they, defendants, have
Mr. W. V. Drummond and Mr. E. Robinson (instructed by Messrs. Deanys and Bowley) ap-refused to pay the same. (5)-In the alter- peared for the plaintiffs, and Mr. J. J. Francis, Q.C., and the Hon. H. E. Pollock (instructed by Messrs. Johnson, Stokes and Master) for the defendants.
The following composed the special jury:- Messrs. G. Moxon (foreman). C. W..Dickson, E. W. Mitchell, A Babington, C. G. Inchbald, T. I. Rose and G. P. Lammert.
Mr. Moxon said the jury were anxious to know whether the case was likely to be a long one, and if so whether they could get re- muneration.
His Lordship said it was the old question of whether the jurors should receive $10 a day each or $1 each for the case. He supposed the case would involve some trouble to the jury and that it would only be reasonable to give them $10 a day each.
Counsel agreed to this. Mr. Robinson read the pleadings of the case as follows:---
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uative the defendants bring here into Court the sum of twenty nine-thousand three hundred dollars and say that the same is sufficient to satisfy the plaintiffs' claims herein whether for principal or interest."
Mr. Drummond said that without having that document before his Lordship it was impossible for him to show the legal position of the plaintiffs.
His Lordship thought Mr. Drummond should be allowed to comment upon the doonwent if he proposed to put it in evidence. When he put it in evidence Mr. Francis could object if he wished to do so.
Mr. Francis: Certainly.
Mr. Drummond proceeded to call attention to certain words in the policy. Subsequently Mr. Drummond, in addressing the ju y as to the facts, submitted that it only became necea- sary for him to open the case extremely briefly as regarded the facts. It was not his duty Replication (dated 17th August, 1899):- to prove the negative but for the defen- "(1) The plaintiffs deny the allegations of frand" dants to prove the positive statements they had contained in the third paragraph of the defend-made, charging the plaintiffs with deliberate ants' answer. (2) The plaintiffs join issue fraud with intent to deceive the defendant com- upon all and every the allegation or allegations pany. The latter charged the plaintiffs with contained in the defendants' answer save in overvaluation with intent to deceive, which was so far as the same consist of admissions of the of course a charge of fraud. allegations in the plaintiffs' petition. (3) And the plaintiffs farther say that the goods insured with the defendant company as in the petition alleged aud in the answer admitted were insured at an agreed value of $40,000, and 3,000 Tient-: sin taels under valued policies."
Rejoinder (dated September 12tb, 1899,- "(1) The defendants deny that the goods or any of the goods insured with them were in- sured at an agreed value of $40,000 and 3,000 Tientsin taels or either of such values or at any agreed value wh tever either under valued policies or otherwise. (2.) In the alternative the defendauts say that, even if the said goods or any of them were insured at an agreed value: (which the defendants deny), the plaintiffs over- valued such goods with intent to defraud the defendau 8, and accordingly that either the plaintiffs are entitled to recover nothing under
the said insurances from the defendants or else that any valuation of say of the said goods must be wholly set aside."
Petition (dated May 3rd, 1899) :-" (1)—'l'he plaintiffs carry on business at Amoy, China, as general import and export merchants under the style or firm name of Kin Cheong, and at other places under the style or firm name of Wing Cheong; they also carry on business as bankers auder the style or firm name of Fat Ki, and also the business of tea merchants under the style or firm name of Yau Ki. (2)—The defen- dant company is a marine insurance company with limited liability, duly registered as such in the colony of Hongkong, having its head office in Hongkong and agencies in Amoy, Tientsin, and other places. (8)--On or about the lat Mr Drummond said that since the pleadings October, 1898, the plaintiffs insured with the had been closed he found that issues had been defendant company goods to the value of $40,000 decided by his Lordship in chambers. These to be shipped at Tientsin in China on the Danish issues he proposed to read before addressing steamship Activ on her then next voyage from his Lordship with reference to the law. The Tientsin to Amoy via Newchwang, Chefoo, and issues were:—“(1) Were the goods in the Tamsui, ⋅ (4)—On or about the 31st October, pleadings mentioned insured with the defend- 1898, the plaintiffs further insured with the ant company by the plaintiffs at an agreed defendant company goods to the value of value of $10,000 and Tientsin taels 3,000, as $4,311.34 to be shipped at Tientsin on board is alleged in the plaintiffs replication? (2) the aforesaid steamer Activ upon the aforesaid Were goods to the value of $44,318,34, or voyage from Tientsin to Amoy via Newchwang. thereabouts, shipped by the plaintiffs at Tient Chefoo, and Tamsui. (5)—Goods of the plaiu sin on board of the s.s. Activ, or were the tiffs of the value of the aforesaid sums of $40,000 | goods shipped by the plaintiffs at Tientsin on and of $4,318.34 were duly shipped on board board of the Actir of the value of $28,539, the aforesaid steamer Activ at Tientsin for or thereabouts, or what other value carriage on board the aforesaid steamer on the (3) If the goods shipped by the plaintiff
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Some further argument took place at this point as to whether the issue to the policy was a valued policy or not should be decided at this juncture.
His Lordship said that up to the pre- sent he was inclined to think that it was, but be would withhold his decision until later on in the case.
Mr. Drummond then proceeded with his address to the jury as to the facts of the case. From these it appeared that on the 12th October last the steamer Active was chartered on behalf of the plaintiffs to carrying certain goods for them from Tientsin. The steamer reached Tientsin on the 27th ctober, and left loaded on the 31st October. On the 9th November she became a total wreck off Tamsui. Six days before she left Tientsin an insurance of $840,000 was effected, and a further insurance of $4,818 was subsequently taken ont. The plaintiffa endeavoured to get payment, but were not sac- cessful. Mr. Drummond finished his opening at about half-past three, when the Court adjourned.
9th January,
The witnesses for the plaintiff were called, and was a partner in the Hin Cheong firm at Hang Hui Ching said he resided in Amoy Amoy. His partners name was Chan Woon Choi. They bad been doing business at Amoy for the last six or seven years. They had branch at Tamsui. Wishing to ship some cargo from the northern ports he chartered the stemmer Activ, the arrangements being made by his friend Boon Taik, whose trade name was Joo Taik, the price being 46,250 The steamer
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