350
SUPREME COURT,
Monday, 13th November.
IN SUMMARY JURISDICTION.
THE HONGKONG WKEELY PRESS AND
Mr. F. X. d'Almada e Castro appeared for | the plaintiff, and Mr. R. Harding for the first defendant. The second, who was absent, was not represented.
Mr. Almada read the promissory note sigued by the defendants, wherein it was set forth that the claim would be paid in full, toge'her with
Before Mr. A. G. WISE (PUISNE JUDGE). | interest, at the expiration of three months.
CLAIM FOR LAUNCH HIRE.
Tak Kee and Co., of No. 15 Des Voeux Road Centra), sued H. Gutemcy, clerk in the German Consulate, to recover the sum of $22 due for the hire of steam launches by the defendant.
Mr. O. D. Thomson appeared for the plain- tiffs, the defendant being unrepresented.
Mr. Thomson stated that tlie plaintiffs were steam launch owners, and claimed the sum of $22 due by the defendant for the bire of steam launches on the 18th July, 24 hours $10, and on the 1st September, three hours $2. On the first occasion when the defendant visited the plaintiffs' shop he saw an employee and asked for a launch. The employee accom- panied him to where the launches were kept, but as none were available, in accordance with a custom prevailing amongst owners, the plaintiffs got a launch from smebody else which they let to the defendant, they taking the responsibility. The defendant took the launch to Laichikok returning at 7.30 p.m. When he was asked to sign an acknowledgment, he refused to do so, and nobody on board sigued. The plaintiffs were unable to discover his uam, and accordingly could not apply for payment, but he called again on the 3rd September when he saw the manager of the plaintiff firm. On that occasion he hired a launch which he kept for three hours, and on returning sign au acknowledgment. The plaintiffs learned that this was the same man who had previously hired the launch, and the manager of the firm, accom- panied by a foki, went to the German Consulate and applied to him for payment. The defendant at first referred the plaintiffs to some man in the German Club, but on their visiting him he refused to pay. and sent them b Ek defendant. On the second, occasion when the plaintiffs called on the defendant for payinent. he refused, and
tching hold of them pushed them downstairs and drove them out of the Consulate.
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Defendant admitted hiring the launch on the 3rd September, but denied hiring one on the 18th July.
His Lordship-Were you a passenger on the launch on the 18th July?
Defendant-I don't know, but if I hired it I would not have refused to sign a chit
Chow King Chee said he was an employe in the plaintiff company. On the afternoon of the 15th July defendant called at the company's office and asked if witness had any launches for hire. Witness said he had, and took defendant to one of the wharves at which their launches were lying. There were one there, so he On defendant's engaged another on his behalf. return he refused to sign. He next saw him on the 3rd September. when he again hired a launch, and on returning from the trip be signed a chit.
Defendant was then sworn.
His Lordship-You admit to hiring the second launch?
Defendant-Yes.
His Lordship-What about the first?
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He stated that the rate of interest was $3 per $100 per mensem. After the three months had elapsed, both makers of the note asked the plaintiff to allow a further term of three months, at the end of which payment would be made. The amount had not been repaid.
The plaintiff's evidence-in-chief was similar to his solicitor's opening statement.
Cross-examined by Mr. Harding, he said he had advanced the sum of $1,370 to the defen- dauts since the making of the promissory note in question. The first defeudant did not sign the addition made to the promissory note, as he said one signature would suffice. Witness got both signatures to the original promissory note, but not to the addition as there was not space for two to sign.
When defendants received
his solicitor's letter pressing them for payment they applied to him for an extension of time He rec-ived two promissory notes for $700 and 80 in removal of his notes for $6.0 each.
Mr. Harding-I put it to you that you re- c-ived those notes in settlement for payment of your promissory notes?—No, they were new promissory notes on new loans.
Why, when you were pressing for payment by your solicitor for 600, did you go and lend $1,350 to the defendants They said they were hard pressed and wanted some money.
But you had instructed your solicitor to take proceedings. Yes, but they said it would be no use of his taking action.
Mr Harding-And on that account you made a further loan?—Yes.
Mr. Almada-This is getting interesting His Lordship-Does he smoke opium now? (To,plaintiff)-Do you smoke opium ?
Plaintiff-No.
His Lordship-Look at his face.
Mr. Harding continued to cross-examine. Did not the first defendant apply to you for delivery of the old promissory not-s when the new ones were signed ?—No. Because they did not repay me any money.
You didn't make the excuse that your son had locked them up and was out, at the time the
defendant called ?-No.
His Lordship -It is a pity we didn't have this gentleman here in the morning; then we should have the truth. He's alright up till 12 o'clock in the day.
Mr. Harding-How was it that you brought three actions in respect of loans of a later date, and never took any action with regard to this loan for 1903-Because I could not find the promissory notes.
I put it to you that the notes have been in the possession of the second defendant all the time? You can call him and ask him if they were in his possession.
The case was adjourned in order that proper translations might be made of the notes before
the court.
Tuesday, 14th November.
IN ORIGINAL JURISDICTION,
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[November 18, 1905.
said amount as monies payable by the defendant on an account stated between them.
Mr. H. E. Pollock, K.C., instructed by Mr. C. D. Wilkinson (of Messrs. Wilkinson and Grist) represented the plaintiff, and Mr. E. II. Sharp, KC,, instructed by Mr. H. W. Looker (of Messrs. Deacon, Looker and Deacon) appeared for the defendant.
Mr. Pollock read the statement of claim in which it was set forth that on or about the 21st October the plaintiff in considers- tion of his engagement as compradore by the Deutsche Asiatische Bank, entered into a bond with the said bank, which bond was still of full force and effect, whereby be made himself responsible to the bank in respect of any loss which might be incurred in conse- quence of the acts or defaults of any of the Chinose servants, all of whom it was agreed between the plaintiff and the bank, should be engaged by the plaintiff, but should be employed and paid wages by the bank. The plaintiff farther made himself responsible for the safe custody of, and undertook to account for all monies which might come into the hands of any of the Chinese servants for, or on behalf of the bank. On or about 3rd October the defendant, in considera. tion of his engagement by the plaintiff as shroff entered into an agreement with the plaintiff that should there be any shortage, mistake. loss, embezzlement, absconding or any other such like evils or matters in respect of any hauk notes and monies paid or received through the defendant's hands, the respou sibility would rest with the defendant, who would make good the exact amount. defendant's duties as such shroff were to pay out and receive bank notes and monies for aud on behalf of the bank. On the morning of the 3rd March a large sum of money in banknotes and cash was handed to the defendant so that he might have the means of cashing cheques drawn on the bank by constitutents. During the course of the day the defendant received and paid out various sums of money, and at the end of the day there was a deficiency of $21,400 which he was unable to account for. The plaintiff under his bond with the bank was compelled to pay and had paid the deficiency for and on account of the defendant and at his request. On the 3rd March defendant signed a document and gave it to the plaintiff, whereby he acknow- ledged that he owed the said sum as on an account stated between them. The defendant had not paid the said sum or any part thereof, and the amount was still due and owing to the plaintiff.
The
In the statement of defence the defendant admitted that he had been employed as shroff in the said bank, but said that since the 28th April, 195, be had been suspended from He admitted that the such employment. plaintiff entered into the bond dated 21st October, 1903, and that he entered into the agreement of the 3rd October, but he denied
the that
terms of the said agreement were correctly set forth in the statement of claim. He further denied that there was a deficiency of $21,400, or of any other sam, and further that he was unable to, and did not account for all the monies received and paid by him. Among the sums paid out by defendant on the date mentioned in the statement of claim was a sum of $21,400, which was paid out in bank-notes by the
Defendant-I don't know. It might have BEFORE SIR F. T. PIGGOTT CHIEF JUSTICE), defendant in respect of a duly chopped cheque been in July that I went out in a launch for a picnic with two other gentlemen, but I did not hire it. Mr. Ulrich hired it.
His Lordship-Is that the gentleman to whom you sent the plaintiff?
Defendant-Yes.
His Lordship-Well he sent him back to you. I think you had better pay you have probably forgotten.
Defendant--But I never hired the launch. His Lordship-You had better pay now, and see what you can recover from Mr. Ulrich. Judgment and costs for plaintiffs.
CHINESE PROMISSORY NOTES.
Tam Chak U claimed from Yung Fai Un, gentleman, and Cheng Sing Im, compradore, the sum of $414, being amount of 23 Chinese moon's interest, at the rate of $18 per moon, due on a promissory note for $60 made and given by the defendants to the plaintiff on the 28th December, 1903.
A COMPRADORE'S CLAIM. Yune Piu To. compradore to the Deutsche Asiatische Bauk, claimed from Yung Fan Kin, recently shroff of the same institution, the sum of $21.400, being mouies due and owing by the defendant to the plaintiff under and by virtue of an agreement in writing dated 3rd October, 1903. In this agreement the defendant agreed to be responsible to the plaintiff for any deficiency or loss through carelessness, embezzle. ment er absconding with money or the like, of any bank notes or money whichi passed through the hands of the defendant as shroff of the Deutsche-Asiatische back In the alternative the plaintiff claimed the aforementioned amount, being monies for which the defendant as shroff of the bank was responsible to the bank, and which monies the plaintiff had paid to the said bank for the defendant at his request. By way of further alternative the plaintiff claimed the
which was given him. After payment out of such sam the said cheque was handed by the defendant in due course to the second shroff. When the accounts were made up at the end of the day's business this cheque was missing, and could not be produced as a voucher for the pay ment of the sail sum. The defendant denied that the plaintiff was compelled to repay the amount to the bank, and if any such sum was paid it was not paid for and on account of the defendant, or at his request. The defendant did not sign any document whereby he acknowledged that he owed the plaintiff the sum of 821,400, or any other sum. At the dictation of plaintiff the defendant wrote out the amount which he paid in bank notes on such cheque being presented to him. He denied that any account had been stated between him and the plaintiff as alleged in the statement of claim, but admitted that he had not paid the plaintiff the sum of $21,400, or any part thereof, as it was not due.
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