August 29, 1903.J
to hear the case de novo. Their contention was that the deed did not confer ownership.
His Lordship granted the Attorney-General leave to appeal to the Full Court on law and fact and stayed proceedings arising directly or indirectly out of the decision of the Land Court for three months unless the appeal could be brought one earlier.
any
Ris Lordship granted leave to appeal in this case also.
The Court adjourned.
Wednesday, 26th August.
IN ORIGINAL JURISDIC
TRISDICTION.
BEFORE HIS HONOUR SIR WILLIAM M. GOODMAN (CHIEF JUSTICE).
CHINA OVERLAND TRADE REPORT.
came partners in the business or position of compradore to Messis. Holtz, s'Jacob & Co. and that such partnership existed at the times referred to or the times of the transactions referred to in paragraphs 3, 4, 5 and 6 of the statement of claim. The transactions referred to in the said last mentioned paragraph of the statement of claim formed part of the said partnership affairs or dealings. No account had been taken and no balance struck of the partnership affairs or dealings. Defendant would object that the plaintiffs claim was not maintainable at law on the ground that it was a matter involving the said partnership accounts. Plaintiff, in his reply to the statement of defence, stated inter alia that defendant alone was compradore to the firm.
Evidence was given.
The Attorney-General said they also desired leave to appeal against the decision of the Land Court in a case in which Ho Lap Han's claim to 621 mow of land extending from Lyeman to Kowloon City for about 2 miles along the shore was allowed, The claimant claimed absolute ownership of the land as having been acquired from the Chinese Govern- ment in 1891, through the San On magis rate, at an annual land tax of $5, aud he valued the land at $50,000. Assuming that the land His Lordship, in d·livering judgment, said was leased by authority the lease applied that as regards the agreement itself it seemed only to the fishing rights and the erection fairly clear to him that it was an agreement by of such buildings as were necessary for which the plaintiff at the request of the defend- fish-ouring and did not grant to the lessee ant became surety for him as compradora to anything like absolute ownership. A certain Holtz, s'Jacob & Co. Then came the question official despatch which the claimant also of what consideration was to be shown to the produced in support of his claim merely referred plaintiff for having undertaken so arduous a to an event which might occur in a possible position as surety. It might have been that, contingency which had never arisen, namely, during the time he allowed these mortgage the possible reclamation of certain fields deeds to be charged, he was to have say $500 and sea-bed, and it did not form a year in respect of the unknowa liability. part of the title. He also produced a attached to them; instead of which the map, but there was no evidence as to its agreement provided that the residue of authenticity or its accuracy. They contended the profit, after deducting the compradore office that the claimant had wilfully misre-expenses, was to be divided into three shares. presented his rights before the Land Court One share was to go to the man who had been and the Land Court had blindly accepted his the previous compradore. The other two shares misrepresentation.
were sub-divided into ten shares. The com- pradore Lau Kam Ching--showing that the defendant was compradore himself and nobody else was enti led to four shares, the surety Tin Wing Shing was to have three, and the remaining three were to go to the man who had been originally appointed compradore but was unable to got surety; in his case however if there was not sufficient money for compradore office expenses he was to
provide it. Defendant in his defence said that the trans- actions were partnership transactions and that the partnership extended from July, 1897; and he said that what constituted the partnership was that deed. His Lordship was bound to say that taking it as it stood he had come to the conclusion that that was not an agreement which formed a partnership. think it was contemplated by the parties that He did not this surety in addition to becoming liable was to share losses and profits in the same way as an ordinary partner in the matter. contemplated that he was to be surety for the carrying out by the compradore of all his duties, which, his Lordship took it, included the adjustment of all his accounts with Holtz & s'Jacob at the termination of his employment as compradore. He did not think it would be right and fair to read the agreement as saying that this was anything more than a mode by which he was to be rewarded for his becoming surety, and the reward was that he was to have this proportion of the profits. It was said that later on there was some modifica- tion of this made by which the man who was to find office expenses appeared to have got rather tired of doing that, possibly coming to the conclusion that there were not going to be any profits, or remarkably small ones, and he seemed to have gone away; and it was stated that his shares then went to the son of the surety. Nothing of that had been pleaded in the statement of defence, and looking at the facts that had been proved in evidence he could not say that they meant much more than this, that the old man, having become surety and having got an interest in the profits naturally took a keen interest in the business and wanted to see it thrive. In the case of nearly all Chinese firms everybody who had any finger in the pie always wanted to put in a relative of some des oription, and get something out of the business, if only $5 a month. So the old man got the compradore to employ his son in the business and the son was to get $10. That was to be paid by the compradore. The son having been got into the business and having been promoted from the first post he held to another post, having been sent up to Canton for four or five months, and having apparently made him- self rather active in the business, it was a
ACT ON AGAINST À COMPRADORE. An action was called in which Tin Wing Shing, trader, 10A, Kennedy Street, sued Lau Kam Ching, compradore, 8, Queen's Road Central, for $3,779,02, money dus and interest. Mr. M. W. Slade, barrister-at-law (instructed by Mr. F. X. d'Almada e Castro, solicitor), ap- peared for the plaintiff and Mr. T. Morgan Phillips, barrister-at-law (instructed by Mr. J. Hays, of Messrs. Johnson, Stokes & Master, solicitors), appeared for the defendant.
Plaintiff in b's statement of claim stated in the third paragraph that in July, 1997, defend- ant became compradore to the firm of Holtz, s'Jacob & Co. and the plaintiff at the request of the defendant gave charges dated 8th July, 1897, and 31st July, 1899, on certain properties of the plaintiff to the said firm as security for the performance by the defendant of his duties as compradore to the firm. (4.) Defendant ceased to be compradore of the firm in October, 1900, and being indebted to the firm as com- pradore requested the plaintiff to pay a sum of $7,000 to the firm and agreed to pay interest on that sum at the rate of $9 per $1,000 per Chinese month from the date of the payment of the said sum to the said firm until repayment by the defendant to the plaintiff. (5.) On or about 8th October, 1900, the plaintiff paid the said sum of $7,000 to the said firm. (6.) Plaintiff has received and given credit to the defendant for $450 paid by one Lo Lu account of the defendant and $652 paid by the defendant; and the defendant had paid at the request of the plaintiff to or on behalf of the plaintiff's son, Tin Lap King, $1,015 and to or on behalf of the plaintiff's son, Tin 3hu Sam, $1,441.41, maki g in all $3,571.41, and leaving a balance due and owing by the defendant to the plaintiff of $3,428.59 Interest on the said Bum of $3,428.59 to the date of the writ amounted to $350.43, making with the prin- cipal sum a total of $3,779.02, due and owing by the defendant. Plaintiff claimed this sum and interest from the date of the writ to pay. ment or judgment at the rate of $9 per $1,000 per Chinese month.
on
Defendant in his defence stated that by an agreement in writing dated July, 1897, the plaintiff, the defendant, and other persons be
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a natural thing that he being the son of this surety should be employed by the man who went away to act in his place. But that was not. because he was a partner in the business bat because he was an employee who was a suitable person to act in his place, and probably because he thought it would please the surety to have his son employed in that way. The only real question was with regard to the adjustment of accounts between the surety and the compradore. The surety, he understood, never got anything at all out of these. There were certain advances, all of which came out of the $7,000 which he had to pay. He had never got any profits. The consideration for becoming surety had been utterly worth.
He had
less ko far as he was concerned paid $7,000 to make good the deficiency in the comporadore's business and when he asked to pradore he was told, “No. I cannot; you are have the residue paid back to him by the com- the compradore as much as I am; we have got to adjust the accounts and be liable for the deficiencies." arrived at was that there was not a proper part-
The conclusion his Lordship - nership constituted by that deed and in his opinion judgment must be entered for the plaintiff with costs.
Judgment was entered accordingly. The Court adjourned.
Thursday, 27th August.
In BankrupPTCY.
BEFORE HIS HONOUR SIR WILLIAM M. GOODMAN (CHIEF JUSTICE).
THE W. H. FORBES BANKRUPTCY, Mr. H. W. Looker of Messrs. Deacon & Hastings, solicitors, appeared in support of an application for a declaration that Charles Vincent Smith is entitled to the sum of $2.196,75 paid to the creditors' assignee as being money it was thought he said W. Hà Forbes was entitled to.
Mr. Bruce Shepherd, Official Receiver, was present.
Mr. Looker stated that he practically repre- creditors' assignee, was not prepared to formally sented both parties. Whilst Mr. Shewan, the consent to the granting of the application, he would not object to it, but would leave it to his Lordship to decide.
His Lordship-You practically appear for both sides then ?
Mr. Looker-Yes, your Lordships.
His Lordship-Well, I will make a note of that.
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will now read my judgment:-In this case I am His Lordship-I have read the affidavit, and
asked for a declaration that one Charles Vincent Smith is entitled to the sum of $2,196.75 paid to Robert Shewan, of Victoria, the creditors' assignee, in the bankruptcy of William Howell Forbes and another, by the Yangtze Valley Syndicate, Limited, and to all interest due therein, being money it was thought Mr. Forbes was entitled to, under an agreement dated the 20th March, 1990, made between the owners o the concession for building certain specified lines of tramway in the City of Victoria, and the said syndicate as one of the concession holders, and to all other moneys and shares now payable or allotable to the said William Howell Forbes under the said agreement, and for an order that
$2,196.75and such interest as aforsaid to Charles Mr. Sheran should pay the said sum of
Vincent Smith or to his solicitors. Mr. Charles Vincent Smith filed a long affid wit in support of this application and claims that, in attending meetings and otherwise acting as a promoter of the original Hongkong Tram- acting on his (Mr. Smith's) behalf as his repres ways Company, Lunited, Mr. Forbes was only
sentative during bis absence from the Colony. He swears that he repaid to Mr. Forbes the ter, to pay in December 1884, and that he, him” money Mr. Forbes was called upon, as a promo- self, attended the meetings when he was in Hongkong. I observe that in Section 8 of the Tramways Ordinanca, 1883, the name of Charles Vincent Smith appears as one of the four orig. inal promoters, and it appeares that when Mr. Forbes was adjudicated bankrupt in 1891, and filed the inventory of his separate estate, no mention was made of any interest in the Tramway Company, and none was i
at that
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