March 17, 1900. j.
"SUTREME "COURT.
10th March.
IN ORIGINAL JURISDICTION,
BEFORE SIB John Cabbington (Chifr Justice) and a Special Jury.
THE KWONG LUNG OHEONG TIRM V. A. B. MARTY.
In this case the plaintiffs were the Kwong Lung Cheong firm, who are merchants trading and carrying on business at 87, Jervois Street, Victoria, and the defendant Mr. A. R. Marty, shipowner, trading and carrying on business at Peddar Street, Victoris. The olaim was for $2.550 the price of Istins of aniseed oil alleged to have been damaged through careless stowing on board the defendant's ik p Hailan.
The jurors were-Mossra. A. Suelton Hooper (foreman) A. Haupt. James McKie, W. Hatton Potts, D., F. Crawford, James Orange, and John Barton.
On the application of Mr. Shelton Hooper. it was agreed that each juror should have $10 a day for his services.
Mr. H. E. Pollock (instrnoted by Messrs. Wilkinsou and Grist) appeared for the plaintiff and Mr. M. W. Slade (instructed by Messrs. Deacon and Hastings) for the defendant.
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CHINA OVERLAND TRADE REPORT.
March 13th.
In Summary Jurisdiction,
BEFORE HIS HONOR A. G. WISE (Puisne Judge.)
ALLEGED UNLAWFUL DETENTION
OF A DOG.
In this case F. A. Pearson, of the Publio Works Department, was the plaintiff and Wil. liam Goldenburg, assistant at the Metropole Hotel, the defendant. The claim was for the return of a brown and white spaniel bel nging to the plaintiff and unlawfully detained by the defendant, or the value of the same, $100.
Mr. F. X d'Almala e Castro (of the office of Messrs. Williuson and Grist) appeared for the plaintiff. He said he had given the defendant notice to produce the dog, but he had not done so.
His Lordship-It is a great pity he has not. I would have liked to have seen it myself. What sort of a dog is it?
Mr. d'Almada e Castro It is a King George spaniel. It is good spaniel. Perhaps your Lordship will ask the defendant why he has not produced it.
His Lordship-I will do that when we get him in the box.
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Mr. d'Almada e Castro-I will put the plain- tiff in the box to prove that the dog was his.
His Lordship-How are you going to prove that when you have not got the dog here?
Mr. d'Alma ia o Castro-I have given notice to produce.
His Lordship called the defendant forward.. The defendant said he had got the dog but if be took the dog oat he would lose it, as it would follow a soldier.
His Lordship-If you do not produce the dog at once there will be judgment against you. I am going to have no more nonsense.
The case was adjourned until Thursday, the defendant to pay the costs for the day.
An arrangement was subsequ ntly come to by the parties, the defendant returning the dog and paying the costs.
March 14th.
IN APPELLATE JURISDICTION,
BEFORE SIR JOHN CARRINGTON (CHIEF JUSTICE) AND HIS HONOR A. Ġ.
WISE (PUISNE JUDGE).
CHAN HIT SAN AND SZ KUK SAN, APPEL-
LANTS, V. HO FUNG HANG, ADMINISTRA-
Mr. Pollock said the plaintiffs were the oon- 'signees of some tins of aniseed oil sent from Pakhoi to Hongkong on board the steamship Huilan (on or about October 11th, 1897) and they claimed damages in respect of the fact that 15 of these tins of "aniseed oil out of 26 were, upon their arrival at Hongkong: found to be amashed in at the top, the oil having run ent in consequence. The law upon the point was this: outside the exceptions contained in the bill of lading, there was a liability apon the shipowner as a common carrier to deliver the goods which were entrusted to his care in good order and condition. It was admitted by the defendant that these 15 tins were not delivered in good order and condition, and that, apart from the exceptions contained in the bill of lading, the defendant WHI liable to pay the plain- tiffs the damage sustained by them, that was to say, the sum of $2,550. Therefore prima facie the plaintiffs were entitled to the amount which they claime and unless the defendant could succeed in satisfying the jury that he had brought his case within the exceptions contained in the bill of lading, upon which he relied, they must give judgment for the plaintiffs. The de- fendant in his answer relied upon two specific exceptions contained in the bill of lading. The first exception on which he relied was insuf- Aciency of packing-that the tins containing this oil were not strong enough to stand the or dinary pressure of an ordinary voyage out from Hoihow to Hongkong. The second defence wAS that these goods were damaged by perils of the ses. That was to say that the ship laboured so heavily in the bad weather experienced on the way out from Hoihow to Hongkong on the 14th and 15th October, that the tins were stove in through no fault on the ship-owner's part. He would point ont to them that the law was that it was for the defendant, who relied upon these two exceptions ?" tions, to prove such facts as would satisfy the The facts set out in the Petition may ba jury that he was fairly and reasonably en-shortly stated. The Appellants are partners titled to claim the benefit of such exceptions. in the Yam Wo and Yi Li opiam firms of But even if the defendant succeeded in this, Hongkong and Macao. Ho I Shek, of whose there was the further question whether these estate, the Respondent is administrator, died tins of oil were or were not properly stowed intestate on the 19th June, 1880. No ad- on board this ship, because it was no use a ministration to his estate was taken out until ship-owner pleading insufficiency of packing or the month of November, 1886-more than six perils of the sea, if in reality such inaumaisnoy years after his death-when probate of an of packing or perils of the ses would not have alleged will was granted to Ho Chik Fak. the caused the damage, apart from bad stowage. person named as executor in the will. Ho Chik The evidence for the plaintiffs was then pro- Fuk did not intermeddle in any way with ceeded with, after which Mr. Slade addressed the shares of Ho I Shek in the Yan Wo and the jury for the defendant.
Yi Li frms. On the 17th November, 1896, the Court revoked the grant of probate on the ground that the will was a forgery, and on the 21st June, 1897, letters of administration of the estate were granted to the Respondent At the time of his death Ho I Shek was the owner of two shares in the Yan Wo firm and of one share in the Yi Li frm, and upon his death his shares remained in the firms, and the surviving partners continued to carry on the
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The jury gave judgment for the plaintiff for the amount claimed with interest and costs.
The Sixth Annual Dinner of the Hongkong Football Club will be held on Saturday, March 24th, at the Hongkong Hotel. The chair will be taken by Mr. H. E. Pollock. Members wishing ta attend must notify the Hon. Seo on or before March 21st.
TOE, ETC., RESPONDENT, Their Lordships gave judgment in this case. The Chief Justice asid-This is an appeal by the Defendants in the Court balow from a judgment of Acting Chief Justice Good- man, given ou the 21st December, 189. in favour of the Plaintiff in the Court below. This judgment was given Ou the baar. ing of an issue in law, in the nature of a demarrer, which was in the following terms: -
Assuming that all the facts stated in the Petition are true, is or is not the Plaintiff's claim herein barred by the Statutes of Limita.
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businesses without any final settlement being come to between the firms and his estate. The Respondent recently applied to the Appellanta for accounts showing the amounts due to the estate in respect of Ho T Shok's shares in the firms, but the Appellants refused to render any anch accounts. The Petition concludes with the prayer that accounts may be taken of the partnership dealings affecting the shares of Ho I Shek; that it may be ascertained of what the shares and the unpaid profits on them consist; and that payment may be made to the Respon- dent as administrator of Ho I Shek of what may be found to be due on the taking of the accounts.
It will be observed that these facts are stated as if they were established, but of course they are admitted by the Appellants only for the par- poses of the present argument on the point of law. It is admitted by both parties that the grant of probate of the forged will may be laid out of consideration, as having no bearing on the question now to be decided.
In these circumstances the learned Acting Chief Justice held that the case was concluded by the authority of Murray v. The East India Company, 2 B. & Ald. 204, and he gave judg ment for the Respondent. This case, which was decided in 1821, established the proposition that if a person to whom a cause of action testate or without leaving an executor before would have accrued if he were living dies in-
the cause of action scorues, the statutes of limi- tations do not begin to ran until administration has been taken out. The case was not the first of its kind. In the judgment of the Court Stanford's Case, oited in Cro Jac. 61, and and it was said that the latter case had decided Cary v. Stephenson, 2 Salk. 421, were quoted, precisely the same point. In Murray v. The East India Company the action was brought by an administrator, with a will annexed, of goods left unadministered by a former administrator, upon several bills of exchange drawn in favour of the testator, but which were accepted by the defendants and became payable after his death. No executor was appointed by the will, and the first grant of administration was made after the bills had become payablo. At the institution of the action more than six years had elapsed since the bills became payable, but the first grant of administration had been made within six years before the bringing of the a tion. On these facts it was contended on behalf of the defend- ants that the statute of limitations began to run from the time when the billa became pay. able, and that the right of sotion was therefore barred by the statute. But Chief Justice Abbott in delivering the judgment of the Court, said, at p. 214:-" We are of opinion that the time of limitation in the present case did not begin to run until the grant of the administration. The words of the statute 21 James 1 o. 16 s. 3 are that actions upon the case, etc., shall be brought within six years next after the cause of such ao- tions, and not after. Now, independently of authority, we think that it cannot be said that a cause of action exists, unless there be also a person in existence capable of suing." And judgment was given for the plaintiff.
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This case is recognized as an authority for the rule which it lays down by Lord Justice Smith in Musurus Bay v. Gadban 71 L, T. (N. S.) at p. 54, and in such treatises as Will- iams' Law of Executors and Adminstrators, pp. 552 and 1,785, and Darby and Bosanquet's Statutes of Limitations, p. 47. See also Pratt v. Swaine, 8;B & C. 285.
But, st the hearing of this appeal, Mr. Francis, on behalf of the Appellants, put forward several
India Company should not be taken to govern reasons why the case of Murray v.. The East
the decision in the present case. In the first place it was urged that the deceased had the right to demand an account from his partners, and that therefore the statute must be deemed to have commenced to run during his lifetime. Section 3 of the Partnership Ordinance, 1897, —” Partners are bound to render trus accounts and fall information of all things affecting the partnership to any partner or his legal represent- atives”—was quoted as expressing the pre-exist- ing law on this subject.
But this point seems to be answered by the following passage from Lindley's Law of Partnership, p. 512, under the heading of "defences to an sotion of account between partners and persons claiming under 'them":---“ So long, indeed, as a partnership is
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