February 1, 1902.]
SUPREME COURT
Monday, 27th January.
IN ORIGINAL JURISDICTION,
BEFORE HIS HONOUR A. G. WISE (ACTING CHIEF JUSTICE).
WONG WO SAI v. WONG SHING NAM AND WONG KA TSUN.
The plaintiff's claim is for a declaration that the partnership previously existing between the plaintiff and the defendants was dissolved by mutual consent on 5th March, 1901, and for an injunction restraining the defendants from possessing themselves of, getting in or receiving, and from disposing of, charging or encumber- ing, any part of the monies, credits, property, asse's, or effects of or belonging to the said partnership business and from incurring any debt or debts in respect of the said business, and from carrying on or in any way interfering in or intermeddling with the said business or in any of the monies, property, assets, or affairs thereof.
Mr. M. W. Slade, barrister-at-law, appeared for the plaintiff, and Mr. E. H. Sharp and Hon. Dr. Ho Kai, barristers-at-law, for the defendants.
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CHINA OVERLAND TRADE REPORT.
85*
him, as this defendant believed, sundry docu- | is not proof of an agreement that the partner- ments, the property of this defendant, relating ship between them shall subsist for the same to the said business, and also owing him $151.59, period. (See Crawsbay v. Maule 1 Swamb 509). monies received on his behalf and still unpaid I am not at all certain that I have arrived at by the plaintiff. The plaintiff thencefor the right decision in this matter: if the parties ward and until these proceedings had no like I will suspend my judgment to allow of connection with the said business and did further argument; but if no application is made not reside on the said premises. Plain before noon on Wednesday, the 29th instant, tiff was not outitled to any interest in the judgment of non-sait will operate from that business as from 11th February, 1900, since time and defendant will have his costs. This when this defendant had been, and was now, the is one of the knottiest points I have ever had only person interested in any way in it. The before me. I have looked up most of the cases other defendant Wong Ka Tsun, denied the which I thought had any dealing with the ques allegations contained in the claim except that tion but I can find no light on the subject. he was a banker residing at 83, Bonham Strand. In 1863 he, in partnership with five other persons, started the business in question, which was then called the Ut Lung. From that time he continued to be a partner until 1886 when he retired therefrom. Since 1886 he had had no interest in the business and had not been in any way connected with it save that BEFORE from time to time he had advanced small sums of money as banker. The said defendant had never been in partnership with the plaintiff or with the defendant, Wong Shing Nam, in this or any other business.
Evidence was afterwards adduced, and the further hearing of the case was adjourned.
IN SUMMARY JURISDICTION.
We understand that the Solicitor for the plain- tiffs will apply for further argument in the case.
Wednesday, 29th January,
IN ORIGINAL JURISDICTION.
HIS HONOUR A. G. WISE (ACTING
· CHIEF JUSTICE),
WONG WO SAƖ v. WONG SHING NAM AND WONG KA TSUN.
The plaintiff's claim was for a declaration that the partnership previously existing between the plaintiff and the defendants was dissolved by mutual consent on 5th March, 1931, and for an injunction restraining the defendants from possessing themselves of, getting in or receiving
BEFORE HIS HONOUR T. SERCOMBE SMITH and from disposing of, charging or encumber-
(ACTING PUISNE JUDGE).
LI HO Tong and othERS v. LUK AK SHAN. Plaintiffs claimed the sum of $834.75, the amount shown to be due on account stated. Mr. J. 3. Harston, solicitor, appeared for the plaintiffs and, Mr. J. F. Reece, solicitor, for the defendant. The case had been before the Court on a previous date.
Mr. Slade submitted the pleadings in the case. Plaintiff stated that his Tong name was Wong Kip Sing 'I ong and that he was a dealer in cotton-yarn carrying on business at 278, Des Voeux Road Central. The defendant Wong Shing Nam was until lately a partner with the plaintiff, and the defendant, Wong Ka Tsun, was a banker residing at, 3, Bonham Strand. About the beginning of the year 19., plaintiff, being then the sole owner of the Ut Lung Ching Ki firm, admitted the defendants into partner- ship, each of the defendants agreeing to put His Lordship said-This is an action in which into the business as his share of the capital plaintiffa claim from the defendant the sum of $1,000. The defendants did not, either of them, $831.75, an amount due as shown by account pay this sum into the business, but they lent to, rendered. Mr. Reece took objection on a point or deposited with, the said firm at interest, of law, and the question to be determined in Wong Shing Nam $2,00) and Wong Ka Tsun' this action is whether A. B, and C, partners' $1,000; and they obtained for the firm loans or with D in a firm X, Y & Co. can sue Don an deposits to the extent of $3,500 more. At the account stated by him with the firm X, Y & Co. end of last Chinese New Year disputes and If the partnership had not been dissolved, then differences arose, and it was agreed that the the firm X, Y & Co. could have sued D, as pro- partnership should be dissolved as from the end vided by Chapt r XIX, Section 492, of the of the Chinese year and that upon the plaintiff Code of Civil Procedure; and the Court, repaying to the defendants and to their friends acting under Section 55 of the same Code, the monies so lent or deposited with the firm might possible have ordered that the firm the plaintiff should retain the business and be X, Y & Co. be substituted for the pres nt discharged from all claims by the defendants. plaintiffs. But, as I find that the partnership The plaintiff repaid to the defendants the said had been dissolved before the date on which monies as agreed. Nevertheless, the defendants
an account was stated by D with X, Y & Co., refused to carry out their part of the agree and that X, Y & Co. were in consequence ment, and claimed, and still claim, to be inter- not carrying on business within the jurisdic. ested in the busiess of the firm. In his reply tion when the account was stated, the the defendant Wong Shing Nam denied that the Court cannot avail itself of any powers which it plaintiff carried on business at 278, Des Vœux
may possess under Section 55 of the Code. Road, as stated, that at that date he had any In cases to which Chapter XIX does not connection with the Ut Lung Ching Ki busi-apply, the writ ahould be issued in the ness, and that Wong Kip Sing Tong was plaintiff's Tong name. Defendant alleged that this name was his own Tong name and that if the plaintiff was now carrying on business as alleged he was doing so without right and fraudulently. Defendant denied that he had been at any time in partnership with the plaintiff Wong Ka Tsun, the other defendant, had not been a partner in the said business since this defendant became connected therewith, nor had Wong Kai Tsun ever been in partner- ship with him in any business. He denied the claim so far as it related to himself except the allegation that in the month of February last differences arose between him and the plaintiff, and that he claimed to be interested in the busi- ness. The facts were that on 11th February and for some time before that date, the plaintiff, in partnership with nine other persons, conveyed the said business under a written assignment to this defendant for $1,500. Thereupon the latter advertised this fact and was registered in the Compradores' Guild and in the Registrar General's Office. From the time of the said sale until February last the plaintiff continued to be connected with the said business as a buyer in this defendant's employ. In the month of February differences arose because of the plaintiff's misconduct, and defendant con- sequently determined the employment. The plaintiff then left the premises, taking with
- sue
ing, any part of the monies, credits, property, assets, or effects of or belonging to the said partnership business and from incurring any debt or debts in respect of the said business, and from carrying on or in any way interfering in or intermeddling with the said business or in any of the monies, property, assets, or affairs thereof.
Mr. M. W. Slade, barrister-at-law, appeared for the plaintiff, and Mr. E. H. Sharp and Hon. Dr. Ho Kai, barristers-at-law, for the defendants.
Evidence in this case was continued, but owing to the admissions of the plaintiff under cross-examination by Hon. Dr. Ho Kai, Mr Slade interrupted the evidence and addressing his Lordship said he felt he could not proceed farther with the case.
Judgment was therefore entered for the defendants with costs, and the injunction ob- tained by the plaintiff on 11th May last against the defendants was dissolved.
Mr. Sharp afterwards addressed his Lordship with respect to the perjury which, he alleged, the plaintiff had been guilty of, and asked his Lordship to commit him.
His Lordship intimated that, had the case proceeded farther, he might have taken Mr. Sharp's application into consideration, but in 30 much as Mr. Slade had withdrawn from the case
his Lordship considered he had acted in a very right and proper manner in so doing he had saved the plaintiff from the possibility of being committed to prison for porjury.
Thursday, 30th January.
IN APPELLATE JurisdicTION.
BEFORE THEIR HONOURS A. G. WISE (ACTING CHIEF JUSTICE) and T. SERCOMBE SMITH (ACTING PUISNE JUDGE).
name of the individual partners-i.e., in the names of A, B, C and D: but this leads to the result that D is at once both a plaintiff and a defendant, and breaks the rule that a person cannot be both plaintiff and defendant in an action. [See Warell v. Mitchell, (1891), W.N. 86]. The point then arises whether A, B, and C
can represent the firm and D. It may be that if the firm' had a cause- of action against a person other than a partner, and such partner was either debarred from being added or unwilling to be added as a plaintiff, then in such case, the remaining partners would sue the other partners and the other person, in order that all proper parties might be before the Court. [See Cullen v. Knowles (1898) 2 Q. B. 381. and Luke v. South Kensington Hotel Co. (1879) 11 Ch. D. 121.] But I am asked to go a step farther and to make a partner to be defendant, not a co-defen- dant, in an action brought by all his other partners. In the absence of authority,, I decline to go so far. Moreover, the objection Mr. M. W. Slade, barrister-at-law (instructed lies that if A, B, and C could recover against by Mr. J. Hastings', appeared for the plaintiff; D they would be recovering from D money and Mr. E. H. Sharp. barrister-at-law (instruct- to which D himself might be entitled.ed by Mr. J. S. Harston), for the defendants. In regard to one argument adduced by Mr. Reece, I will refer to Tandley on Partnerhip, 6th edition, p. 130, where it is said that the fact that partners have, for partnership purposes, taken land on lease for a term of years
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LUK LAI CHO v. KINGHORN AND MACDONALD. This was a notice of motion on behalf of the plaintiff that the verdict of the jury in this action given on 11th December, 1901, be set aside, and judgment entered for the plaintiff or a new trial to be between the parties on the grounds-(1) that evidence on behalf of defend- ants to vary the written contract in the letter from the defendants to the plaintiff dated 20th October, 1900, was improperly admitted; (2) that the evidence was against the weight of evidence and perverse.
The judgment appealed against was that given by a special jury upon a new trial for $44,335 for alleged breach of warranty of author- ty, and the costs incurred in the original action. In that action Luk Lai Cho, 32, Bonham
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