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September 9, 1905.]
affi lavit that was filed and sworn by the de- feud int it appeared he did have some misapp e- hension as to what the Consulte Judge at Foochow said to him with regard to the ia junction, (Counsel then read the interim injunction granted by H. M. Court at Foochow, which was to restrain th defendant, until judgment in the action, from carrying on business at Foochow of a similar character to that of the plaint ffs, Mess. Dɔdw Il & Co.) It was pleaded by the plaintiffs that the defen dant hid permitted his name to be used in the business (paragraph 7 of the petitios), and in the amended answer parig aph 7 of the p-dition was omitted. From that it whould appear that the defen lant admit el now that he pe mitted his hume to be used in the busines of Moss & Co., LA. Of course it was the sett ug up of this Moss & Co., LI, which caused these proceeding, aul the importint point was that Mesirs. Moss & Co. wers still carrying on bas ness. The second point was that not only had Mr. E. J. Moss permitted his name to be used for the purpose of competing with the plain tiffs but he himself had taken a personal interest init and the active part of conducting the busings of Moss & Co., Ld. It would appear that he did not really deny that. (Cans I read the affidavit of Mr. A. J. Brown, sharebroker.) | Mr. Macleod contende that the defendant must have known ou the 18th of July of the order of the Court. The order was served on the 16th of Juge, and on the 11th of July an Express, the second of two, was issuel by the Consul at Foochow, which informed the defendant that under the Court's order he was not allowed to do any business at all in the office, not even as a junior in th office, of the firm competing with the plaintiffs. Counsel then proceeded to read an affidavit by Mr. H. S. Brand.
The afidavit of G. Sinclair Moss, and a further affidavit Ly Mr. Grant, manager of Moss & Co., Li, Foocbow, wer read. Mr. Macleod sil that from the last affi lavit it was quits clear that this company was still carrying 01 bu iness ani thit M-. E. J. Mo33 had besu actually carrying on business,
Mr. B owett said he would first deal with the question of the gravity of the charge. He was well aware that the act of committing con: tempt of Court was of a grave nature but the Court when considering its gravity would pr serve its diguity in s oing whether the diso- bedience of its order was wiltul, Counsel would like the court to consider the cis of Fairclough v. The Manchester Ship Caul Co. (Weekly Notes 97, page 7), which was also quoted in a footaɔtɔ in Kerr on Injunctions, pagə 599. Contempt must be wilful disobed ience of the order of the Court. Coun el hoped to be able to show that his client had not done anything which could be fairly held to contitute the offence with which he was now charged,- that was contempt of Court.
His Lordship Of course the question is, did he disobey the order of the Court or did he not?
Mr. Browett.-I say he did not.
-CHINA OVERLAND TRADE REPORT.
over matters to them and was not in Foochow at the time of the publication of the Express. Anything that the defen lint did with regard to the telegrams he received was an absolute | ncessity. He opened thı»s · tel-grams and then if they were anything to do with the bisness hy hunded them on to Mr. Brown.
He was not transacting the company's business except perhaps in answering a question, put by Mr. Brown, an act like that could not possibly be contempt of Court.
Moss,
Mr. Browett then read the affidavit filed by the defendant in which he set out that be changed his telegraphic address but the change not was conveyed to the constituents of the company and the result was that telegrams aldressel Moss, Foochow" continu d to be delivered to him. Any telegrams which con- cerned the business of Messrs Moss & Co., Li.. were handed over by him to Mr. A. J. Brown. Then, by instructions, all tel-grams to Foochow were sent to the British Consul. Consel said his client had done everything he possibly cou'd do to in every small particular comply with the order of the Court. The stite ment made by Mr. Brown in paragraph 5 of his affidavit was only general. He said the defendant atten led the office and did business . on behalf of the company. He did not give any specifis ins'auces. Counsel submitted that this broal statement was not a fair on inasmuch as it did not give the defendant an opportunity of contradicting the s'atement except in a general
way.
His Lordship- He was manager, and received orders from Messrs. Mo-s as to what to do.
Mr. Browett read defendant's statement and said that since the 17th of July he had not entered into any bus'ness transactions on behalf of Messrs. Moss and Co., Ld; he had handed
H's Lordship-Is Moss not practically Moss Co., Ld?
Mr. Broveite is not interested in Moss and Co., LA He his no shares.
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Mr. Macleod -There is no evidenc› of that. H18 Lordship-If he isn t Moss & Co., who is?
Mr. Bruwett-The shareholders,
His Lordship-From this cas it appears that there are no "shar holders. Thers is strong evidence that the defentant ought to be com mitted but I cantot now do so for saveral reasons. Dodwell and Cp have not given any un lertaking. Supposin he hal been advised | by his lawyers that th: injunction was not pro- perly issued because no nn lectaking was given. Of course he ought to have obeyed the order. If Mr. Moss were in Court now, and he had been properly served on the affidavits it so ms to me a bad case of cont∙mpt-I should hire to commit him, unless he gave strong evilence contradicting the affilivits.. Mr. Moss will, have to be servel with an order confirming the injunction and he will have to be served with notice of this motion and if he disbys it, be will be at once committed.
At the next sitting, his Lordship remarked that as this was a semi-criminal procidura, if there was any question raised in the affidavits on which obviou ly it was desirable that any deponent shoull be cross-examined he would consider an a plication to call that witness. He noticed that Mr. A. J. Brown, whose affidavit was the most important, was in Court, and he might be called and cross-examined. Before that was done, however, his Lordship intimat d that he should not be disposed to commit for breach of the ijauction between the 24th of June, when the judge of the provincial court wrote to defend int mentioning that he was not restricted from being employed as a clerk, and the 18th of July when the official Express reaffirming the injunction was publish. As Mr. Moss returned to Fochow on the 20th of July and Mr. Brown left on the 29th of July, the cross eximinatia ueel not concern itself with what happened outside that period
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eitioaed, but he had on other occasions. Thers were occisioa whən defendant weɔtɔ letters aulasked witness to sign them, but nɔt miny after the 18th July; no. huif-a-dozen, he thought, but more than on), Thos letters dolt with the basines of M »83 & C », aul were writtsu t› fabilitate the carrying on of contriots already eatrel into; he thought they were not all written at witness's request. At 5 pm. oa one occasion a code telegram was received from S anghai, ail although witness was in the office till 7 p.m. defendat, who could not real that lagrim, did a ɔt consult witness, who coul ! hav expliued it on previous negotiatio is, bat wired for a report, which cm3 n-xt məraing. Oa the 29th of July, Mr. Shaw and two Chiness of the native staff were sunt by d-fend- ant to Hongkong on badiness of M8 81) Co. This was in w.tuss's pres nce; the ma had not co ne into the office at witness's o der. The conversation listed about a quirter of sa jhour and concerned the taking over of the Company from the original seven signatories of the memoran lum of associati›a. With 983 had no further evidence to give in support of the statement that defendant carried од business as Moss and Co. Defendant did not tise any te during that period, though that was his profession. He did interview Chines 3, on one occasion, cortainly, after the 20th of ||July. It was when nearly all the members of the tea guild cime round asking for miney.. Defendant told them to waik. He never mɩd› a bargain over tea or went into the room. The affi lavit sigad by witness was mide in Shanghai. Witness had had conversation with Mr. Giles about the3 proceedlings, as he had previous'y with Mr. Playfair. Tue conversa. tions were gon ral. Witness wrote two la ters to Mr. Freeman and gare copies to defendant. Witness did not ask defenda it's opin oa on thse letters. They were dite l after the interim injunction, but defendaut had no part what ever in the drawing up of those letters, which concerned the affairs of Moss & Co. Telegrams addressel "Moss Foochow," would go to the office and not to defendant's private house. The telegram from Shanghai already referred to should have been delivered to witness, but it' was not handed to him till next morning. After the 20th of July no telegrams came to the office. When witness first went to Foochow he was authorised to open all telegrams addressed Moss [& Co. Witness did not know if it was ous- tomary to deliver telegrams at private housIS instead of at business houses after a osrtain hour in the day. Defendant had no share or interest in Moss & Co. to the best of witness's knowlodge anl belief. Un the 29th of July there were ten shireholders, but defendant wai not one.
On the 21th of July witness mide ant two share certificates. There might have ben more than ten shareholders on that date, but. not fower.
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Alfred John Brown was accordingly called by Mr. Macleo, and cross examinel by Mr. Ellis. He said that during the period he (wituess) acted as manager of Moss and Co.. defendaut attended at the office nearly every day. He saw letters and sent telegrams. Witness did not hand him the letters. never saw defendant opou a letter. The letters were in a box on witness's desk marked "private correspon lence," and they had accumulate during defendant's absence." Sum › wars for him, which had come before defend int went away. Defendant could have gone to the basket. Wit- ness asked him questions about some of the letters, but warned defendant not to have much to do with them, ai h was being watched by Dolwell & Co. next door. There was s'ill a good deal of referen e to the box, though de fendant was more careful after that warning. Witness asked defendant about points in By his Lordship -The statement in the the business he did not understand. He did affidavit covered a great deal more than the nine not then know that he was doing anything that days between the 20th and 29th of Ja'y. was daugerous to himself. He knew of thUp to the 20th of July defendant practi. interim injunction, but did not think of it as seriously as he did now. Witness received a letter from the Hongkong Bink saying they were willing to atmit an overdraft ou certain securities, and he had never applied for one It must have been a ked for, therefore, by defendant. Wituess availed himself of the offer. Witness had no defini'e knowledge of the date on which the overdraft had been asked for, whether it was before the 18th of July. Defendant had als › done business by instructing wi ness to send te'egrams to two clients in America asking clients for terms for stock and if they would not buy them, if they would take them on consigoment. That was after the 18th of July. - Witness bad never written to the bank in connection with the offer of an overdraft he had
By Mr. Macleod -There were ten regis'ered shareholders, which comprised the 83ven original sigasto-iesan 1 three others. The seven origin l signatories hell only one share each. The {leiters to Mr. Freeman set out what defeadsut
had done and not done in the way of businesi. for Mr. Freeman. The telegrams and letters referral to specifically by w.ties; covered all · that defendant did in the way of conducting the business of Moss & Co. Witness did not kuow whether with the aid of the bɔoks he- hould remember other spesifio instancas. H ̧ had not seen the boks since the 31st of July..
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cally conducted all the bun 188. Altair thì 20th of July witness did not rem›mbər to have heard defendant tell a clerk to send duplicates of any documents to clients. Defen- dant was not in the office more than an averaga of two hours every day between the 20th and 29.h of July. He sit at a desk typewriting most of that time. He saw people who came into the office. He discusse{ the business of Moss & Co. with witnes, business which witness could not have des't_with_alone. After the 20th of July no new contracts were made, but as defendant had a good deal to do with the starting of the contracts already made, it was necessary to refer to him very often. handed over to Mr. Grant.
The case was again adjourned,
Witness
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