140
The accounts are as follows:----
WORKING ACCOUNT.
For the year ending 31st December, 1901.
Dr.
To charges nocounta*,
To legal expenses
To directors' fees
To auditors' fees
To agency management
To trustees' fees
To interest account...
To balance transferred to profit and loss
account
Cr.
By gross rentals
Less fire insurance, water, re-
pairs, &o
By transfer fees
By commission account.
Tls. ots.
2,722.18
15,000,00 597.20
THE HONGKONG WEEKLY PRESS AND
SUPREME COURT.
Saturday, 15th February.
IN SUMMARY JURISDICTION.
2,500.00 BEFORE HIS HONOUR T. SERCOMBE SMITH
200.00
(ACTING PUISNE JUDGE). 1,500.00 34,195.46
187,871.31
Taels 244,586.15 Ts. ots.
285,678.00
41,599.46
244,144.60 193.50
248.05 Taels 244,586.15
PROFIT AND LOSS ACCOUNT.
14th March, 1901.
Dr.
To transfer to reserve fund
}
To final dividend for 1900, 64 per cent... 15th July.
31st December. To balance.
*
Tls. cts.
84 500.00
6,974.82
To interim dividend for 1901, 6 per cent.... 78,000.00 126,248.52 Taels 295,723.34
31st Dec., 1900.
Cr.
By balance...
*91st Dec., 1901.
By premium on debentures
by balance of working account
RESERVE FUND ACCOUNT.
31st Dec., 1901.
To balance....
31st Dec., 1900.
By balance
Dr.
14th March, 1901,
By profit and loss account
LO HO TONG AND OTHERS v. LUK PAK SHAN, In this case the plaintiffs claimed from the defendant the sum of 8834.75, the amount estimated to be due by the defendant to the plaintiffs for the proportion of rents received by the defendant, as shown by an account rend ered by the defendant to the plaintiffs. His Lordship delivered the following judgment :-
The plaintiffs having availed themselves of my willingness to hear further argument in th's action, the question whether one of sev ral | partners could be sued by the others upon an account stated as between him and the former firm, the partnership having been dissolved before the date of that account, was argued on 5th February, by Mr. Sharp for the plaintiffs and Mr. Slade for the defendant. Mr. Sharp urged —(1) that the cases of Cullen v. Knowles (1898) | 2 QB. 380 and Luke v. S. Kensington Hotel Company, 11 Ch. D. 121, in principle covered the present case; (2) that the account stated being stated only nominally with the former firm and actually with the partners personally, they can Tis. ets.
severally sue in respect of their shares; (3) that 101,386.03
judgment might be given for the whole balance 6,466.00 stated to be due, in favour of all the partners 187,871.31 although three are plaintiffs and one is defend- ant. The first and third points taken by Mr. Taels 295,723.34
Sharp appear to be in effect the same point. In Cullen v. Knowles it was held that one of the Tis. cts. joint promisees could under certain conditions 218,465.53 maintain an action on a contract making the other joint promisee a co-defendant: whilst in Taels 218,465.53 Luke v. S. Kensington Hotel Company the deci
sion was that one of several mortgagees could maintain an action to foreclose the mort-
making. under gage
certain conditions, the other mortgagees co-defendants. The essential difference botween those cases and the present
is that the case of action lay between a plaintiff and a defendant | who had separate interests and not between 20,000,00 plaintiffs and a defendant who; as in this case, have similar interests. In both the cases cited a 20,000.00 difficulty had to be overcome: that difficulty was that no action could be maintained by one of two or more joint promisees or mortgagees Taels cts.
unless the other promisees or mortgagees were 610,809.56 926,999.40 also parties to the action. That difficulty was 262,271.56 solved by joining the recalcitrant or impotent 165,663.35 joint promisees or mortgagees as co-defendants 706,852.18 along with the real defendant against whom 137.034.44 the action lay. This was done in order to have all the parties interested in the litigation before the court. The real defendant bore the brunt 196,581.40 of the action, and the other joint promisees, or 59,769.12 mortgagees, who ought to have been co-plain- 38,345.53 tiffs, were made nominal defendants because
2,289.68 22,460 45 they had refused or were unable to be made 612,458.04 co-plaintiffs. Then judgment was given 58,199.31 against the real defendant and in favour of the plaintiff or co-plaintiffs and the Taels 3,915,824.47 nominal co-defendants. The principle of Cullen
Taels cta.
v. Knowles and Luke v. S. Kensington Hotel Cr.. Capital account
..1,948,800.00 Co. is shortly that, where there is a cause of Debentures bearing interest 6 per cent....1,000,000.00 | action by joint-promisees against an independ- Debentures bearing interest 5 per cent.... 250,000,00 ant promisor, the aotion may be saved to the Debentures bearing interest 5 per cent.... 350,000.00 plaintiffs, notwithstanding the inability or
RESERVE FUND SPECIAL
31st Dec., 1901.
Dr.
To balance
31st Dec., 1900.
Cr.
BALANCE-SHEET.
By balance
4
8
Dr.
Estate No. 1
do.
2
do.
"
do.
5
do.
G
+3
do.
do.
9
>>
do.
11
do.
11
12
do.
12
13
do.
19
"
do.
14
31
10
Cash due by agents
Bundry debtors.......
Sundry mortgages
ASSETS.
Taels, cts. 211,490.71
6,974.8 Taels 218,465.53
ACCOUNT.
Taels ots.
Taels cts.
Cash in Hongkong and Shanghai Bank
LIABILITIES.
Profit and loss account Unclaimed dividends Sundry creditors
Reserve fund...
Reserve fund special account
27,796.97 61,079.07 27,214.41
cause
a man
[February 24, 1902.
was the real defendant and as joint-pro. misee he Was a nominal co-defendant ́and therefore came within the principle of the onses cited. If he was a promisor, he was one to others jointly with himself. But can make a promise to himself jointly with others? If he could, then he with the others could sue himself upon the promise, and be both a plaintiff and a defendant in an action, which is out of the question. Plain- tiffs' counsel's second point on which chief reliance was placed was that as the account was stated only nominally with a firm and in reality with the partners personally, those partners could severally sue in respect of their shares. On the face of the instrument, the account was stated with the firm-i.e., with the co-plaintiffs and the defendant. jointly as being partners in the firm, the name of the firm being used compendiously to embrace all the partners thereof. There is, in my judgment, nothing in the instrument to show that it was a promise to pay to each partner his proportionate share of the sum stated in the account to be due by one partner to the firm. 1 may not interpret the instru ment by looking at the partnership agreement which it does not incorporate by reference or otherwise, nor does the wording of the claim on the writ of summons issued subsequently to the instrument in question in any degree aid the court. But it was argued that rights which were joint before dissolution became as well several thereafter, and that therefore the plaintiffs had each a several right of action in respect of their shares and could join their causes of action in one action as several co-plaintiffs. In support of this line of argu- ment, the case of Palmer v. Mallet 86 Ch. D. was cited, and reliance was placed on 411 Section 4 of the Code of Civil Procedure. Speaking generally, cases in which the actions or suits are between partners and non-partners do not apply to cases where the action or suit is brought by partners against co-partners. Palmer v. Mallett is a case in which Palmer had been member of a partnership and Mallett had entered into a restrictive bond with Palmer and his partner. It was held that, though and bis partner had dissolved Palmer partnership, yet Palmer alone could bring
on action the bond against Mallett. If this case had not been decided special wording of an instrument and the action had been between partners, then it might have been applicable to the circum-
an
on the
As
stances of the case now before the court. an authority it goes no further than to establish that if an instrument shows that any partner may sue apart from his other partners, then such partner may sue alone when the action is against a non-partner. It cannot be taken as an authority for the proposition that as between partners, a right of action, which was joint before dissolution, becomes several after dis- solution. The court requires direct authority before it can accept the proposition which has been advanced. But even if Palmer v. Mallett established the proposition put for- ward, I am of opinion that Section 54 of the Code of Civil Procedure does not include the case of a consolidation of several alleged debts amount in an action brought by into one the creditors jointly. For example if Dowes A, B, and C $1, $y, and $z respectively, I doubt whether A, B, and C may join as co-plaintiffs in one action claiming from Da lump sum of 126,248.52 450.40
refusal of any joint-promisee to be made a $ (x+y+z). A, B, and C might naite their several claims, but not lump the amounts claimed 1,860 02 co-plaintiff, by joining that joint-promisee as a 218,464.53 nominal defendant along with the real defend- in one action, provided the causes of action 20,000.00 ant. There must, it seems to me, be in the first arose out of the same transaction or series of instance a substantive defendant against whom transactions and any common question of law Taels 3,915,824.47
an ection would lie. He being in existence, then or fact would arise; but there must be several an nawilling or incapacitated joint-promises causes of action. In the present case there are might be joined as co-defendant pro forma. In not several canses of action, because the defen- the present case, the sole defendant is, if he has dant is not liable in contract to each of the For the defendant any status, a joint-promisee having the same co-plaintiffs severally. status as the co-plaintiffs. Bring him into the Mr. Slade cited Fromont v. Coupland 2 Bing. 170 and Richardson v. Fank of England ranks of the co-plaintiffs with whom he is a
4 My. & Co, at 171, and argued that joint-promisee and he must disappear as
no implied promise by the de- defendant leaving no real defendant to the there was action. Whereas in the two cases cited, if the fendant to pay partners according to their joint-promisee had been made a co-plaintiff, the shares, that defendant merely admitted that he real defendant would still have existed. Mr. ought to have received so much rent to be the accounted for to the firm, that there was no Sharp ingeniously tried to overcome difficulty presented by the cases by Conferring debt due from defendant to his late partners on the defendant a dual capacity both as pro-and therefore no admission of a debt, and that misor and joint-promiseo-i.e., as promisor he a final account of all partnership transactions
Captain von Usedom, of the German navy, aide-de-camp to the Emperor William, recently arrived in 8. Petersburg, and was shortly afterwards received in audience by the Emperor at Tsarakoe Selo. He was the bearer of an authograph letter and Christmas presents from the German Emperor for the Emperor of Russia. Captain von Usedom will be remem- bered as having taken part in the attempted Seymour expedition to relieve Peking. He was nominated by Admiral Seymour as his successor in case of the admiral's death or ncapacitation.
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