October 30, 1905.]
SUPREME COURT.
Friday, 20th October.
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. WISE (PUISNE JUDGE)
A COOK'S CLAIM.
Ip Ch, cook and hous boy, sued M. Grice, an assistant in Messrs. McEwan, Frickle and Co., for $14, wages due.
The defendant denied owing the amount. Ip Cho, declared, said he was boy and cook
to the defendant.
His Lordship-Why weren't you paid for September?
Witness--Because I gave notice on 1st September that I was going to leave defendant's
service.
His Lordship-And why didn't you go on the
1st October?
Wituess-Defendant detained me because be was moving into new premises.
His Lordship What happened on the 10th October ?
Witness-I asked him for the balance due t me. He got very much annoyed and assaulted
10.
The d-fendant was then put in the box and swore that the plaintiff was engaged by him as boy and cook at a salary of $12 a month.
His Lordship-He says he gave you notice on the 1st September.
Defendant-No. my Lord, he did not do so. His Lordship-Do you owe him $2 for September.
Defendant-I said I would keep that amount out of his salary as he was not doing his work properly.
His Lordship-What is the meaning of his claim for October wages?
Defendant-I cannot understand it, my
L-rd
His Lordship-When did he leave you ? Defendant-On the 10th of the month. His Lordship-Did be agree that you should cut him $2 ?
Defendant--For this month. I don't think he did for September.
His Lordship-He says you assaulted him this month.
Defendant-It is untrue.
His Lordship-Why did he leave on the 10th of the month P
Defendant-He had not been doing his work properly, and I reprimanded him severely. He then said "You had better get another boy to do your work; I will go." I have not seen him since.
His Lordship-You had better give him $2 for September.
Defendant-I am quite willing to do that, my Lord.
.
His Lordship-Very well. He will get $2, but he won't get his cos's.
Monday, 23rd October.
IN ORIGINAL JURISDICTION.
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CHINA OVERLAND TRADE REPORT.
bearing spurious representations of the firm's trade marks which had been registered in the colony.
His Lordship remarked that the trade marks on the shoes did not exactly correspond with the description in the affidavit.
Mr. Pollock submitted that all the material facts were there.
From the affidavit it further appeared that the rubber shoes in question had been consigned to Messrs. Jorge and Co., Zetland Street, against whom there was another action. Mr. Humphreys had written to the secretary of the defendant Company, who ba', in reply, expressed his icability to comply with his request not to part with possession.
His Lordship Does anybody appear on the
other side?
Mr. Policek-No, my lord; this motion is ex parte.
Counsel read other affidavits by Mr. Cecil Humphreys and Mr. Wilkinson, of Messrs. Wilkinson and Grist, from the latter of which, he said, his Lordship would see that the defendant company required them to make some applica. tion to the court in connection with that matter and they were now applying to his Lordship under the provisions of the code.
His Lordship-What are you moving for now?
Mr. Pollock-We are moving in terms of the notice on the paper.
We are entirely in your Lordship's hands. We are moving for an absolute order. The Godown Company require us to move for an order. If your Lordship made an absolute order, that would be served on the Godown. Company, and if they saw any reason to come to court they could do so.
an
The
In reply to bis Lordship, Mr. Pullock dealt with the necessity for taking such action and mentioned that there was action against Messrs Jorge & Co., which firm had purchased from some other firm those rubber shoes bearing a spurious imita- tion of complainants' trade marks; and the injunction was sought to have the goods returned to them or kept from the market. Godown Company by asking for an order of the court for them to act upon had insisted on those legal proceedings, and probably the best course would be to grant complainants an absolute order which would be served upon the Godown Company. Then it would be competent for them at any time, assuming they wished to take any further action in the matter, for the latter to apply to have the order set aside. The other action was against Messrs. Jorge and Company.
His Lordship-Sapposing it turns out that these cases do not contain rubber shoes as stated. Mr. Pollock-Then, of course, we should have to suffer for it.
His Lordship There is manifestly a prima facie case of infringement, and it is clearly a case for an absolute injunction. If the injunc- tion is granted that disposes of the action?
Mr. Pollock-Yes.
His Lordship --Therefore you are practically entitled to judgment on the writ ?
Mr. Pollook-Practically so, my lord. The question of costs was mentioned by Mr. Pollock, but his Lordship said this question would arise on any application respecting the BEFORE SIR F. T. PIGGOTT (CHIEF JUSTICE). injunction and he would reserve his decision on
that point till then.
AN INJUNCTION GRANTED.
The North British Rubber Company, Ediu- burgh, through their local agents, Messrs. Humphreys & Co., applied for an injunction to restrain the Hongkong and Kowloon Wharf and Godown Company from parting wit the possession of 15 cases of rubber shoes bearing what were alleged to be imitations of their trade marks.
of
Mr. Pollock, K.C. (instructed by Messrs. Wilkinson and Grist) said he appeared for the complainants who were moring ex parte under the provisions of the code for an injunction to restrain the defendants from parting with possession 15 cases of rabber shoes be ring spurious representations of complainants' trademarks. The writ of on the 19th instant was issued and the notice of motion on the 2)th instant. Mr. Pollock read the affidavit by Mr. W. G. Humphreys, of 16 Queen's Road Central who stated he had received instructions from complainants to stop the sale of rubber shoes,
summons
IN BANKRUPTCY.
YIK WING EXPARTE MA FAI NAM.
Mr. Pollock said he appeared on behalf of the bankrupt who had been committed to prison en a warrant pending a criminal prosecution.
Mr. Looker, who appeared for 22 creditors, said they had had no official notice of that application, and he thought it would have been proper to inform those who were representing the oreditors.
In reply to his Lordship, Mr. Looker added that debtor had been arrested on the 3rd August and he was examined subsequently. Then they asked his Lordship to make an order for his prosecution and his Lordship adjourned it for
consideration.
Mr. Pollock held that there must be some reasonable limit to the time a man was kept in Debtor had been arrested in the prison.
expectation that criminal proceedings would be instituted. No proceedings had been taken
297
and he now asked for his release. Two months has elapsed since the arrest of the bankrupt was ordered with a view to his prosecution, and as no prosecution had fact been instituted it would be unreasonable that he should remain longer under arrest. Ample time had elapsed for the purpose of prosecuting him, assuming that there was any serious intention to presecute him.
His Lordship-I think I refused bail. Mr. Pollock-Yes.
His Lordship-That strengthens your case? Mr. Pollock-Yes, he has been actually under arrest.
His Lordship- Quite £0.
Mr. Looker opposed the application.
Mr. Pollock thought his friend had no locus slandi.
His Lordship-In whose hands is the prosecu- tion ?
Mr. Wakeman-It has been referred to the
Law Offices.
His Lordship-What decision have they arrived at P
Mr. Wakeman was understood to say the Law Officers had decided th re was no case for a criminal prosecution.
His Lordship-You support the motion? Mr. Wakeman-No, my lord.
His Lordship-Who is to bring the case before me?
Mr. Wakeman-It has been submitted to the
Law Officers. A
His Lordship-I should have thought that when they decided not to prosecute, the dismissal of the bankrupt would have followed as a matter of course.
Mr. Looker then stated that his Lordship had adjourned the case in order that the creditors might formulate the charges against debtor, but it was considered unnecessary for them to do so if the Attorney-General and Crown Solicitor had to prosecute.
it.
His Lordship-Now they have declined to do
Mr. Looker admitted that it put them in an awkward position.
His Lordship-Yes, I can hardly order a prosecution.
Mr. Looker asked that the court should order the man to remain under arrest and to detain the books until he came up for his dis charge. He has been adjudicated a bankrupt and may apply at any time for his discharge.
His Lordship-Is the public examination concluded ?
Mr. Looker-It has been practically closed. A discussion followed as to whether debtor hd committed an offence or a misdemeanour, at the end of which,
Mr. Pollock said that the Law Officers having decided there was no case for criminal prosecn- tion, he was entitled to asked for his discharge.
His Lordship said he did not wish to express any views on the merits of the case.
Mr. Looker said that he had not had time to consult his clients but knew they desired the application to be opposed. They would have already prosecuted the debtor privately but for the fact that it had been held by the Attorney- General that they could not do so..
His Lordship-If I acquiesced in this motion I should be supporting the contention that there is no power to privat ly pros- ecute which I am not at all prepared to do iu the absence of further information. I thought the power to prosecute was open to all. I should not like to be held to acquiesce but I agree that there is hardship in this man being kept in prison.
Mr. Looker-What we ask for is that there being extremely strong cause to believe that the prisoner bas committed an offence he should be detained in gaol or required to present himself for his release under the Bankruptcy Ordinance
Mr. Pollock-My friend asks your Lordship to keep this man in prison because he may havə to put him into prison later on.
In giving his decision his Lordship said- I could not make the order for his release conditional on the bankrupt coming up for his discharge under the Bankruptcy Ordinance. With regard to the other matter, I think it is of considerable importance. I doubt whether I am justified in keeping a man in prison until the doubt in my mind is satisfied. I don't think I should be interfering with the rights of creditors, if they intend to prosecute,
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