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Fok Kam-chuan, a partner therein, to recover the sum of $303.20 damages suffered by reason of a breach by the defendants of a contract in writing dated 19th December, 1905, whereby the defendants agreed to purchase 1,000 boxes of window glass, and have refused to take delivery of 160 boxes thereof.
Mr. E. F. C. Master (of Messrs. Johnson, Stokes and Master) apppeared for the plaintiffs, and Mr. F. B. L. Bowley (of Messrs. Dennys and Bowley for the defendants.
In delivering his decision his Lordship said it was admitted that the cases containing this window glass were damaged by fresh water, also the straw packing, and on that ground the defendants refused to accept 160 cases, the real reason being that the glass was not mer- chantable. A survey of the contents of these cases showed that they were perfectly sound. The defendants refused to accept delivery of these packages because the outside looked "damaged. His Lordship could not think that applied to everything, because it was admitted that the glass was perfectly sound. The contract was that the plaintiffs should deliver so much glass in Hongkong in fair condition. They had done so, and he did not see that the eases and straw packing were for anything better than to protect the glass and land it here in a merchantable condition, which was done; therefore the defendants had no right to refuse delivery. The second question was as to damage. Correspondence passed between the parties, and up to May 2nd the defendants said they would take delivery if plaintiffs would re-pack the glass. The next point he had to decide was whether there was any andue delay in selling the goods. They realised $3.90 per box, the market price then being $5.49. The defendants' manager, in his evidence, stated that he would take 70 cent, per case to re-pack. That was his estimate, but not his Lordship's. The market price on the day of the auction was said to be $5.40; the goods were sold for $3.90 plus 70 cents for packing, $1.60, so that a handsome price was realised. It would be a very curious thing if it could be found out at whose instance the glass was bought. His Lordship had his own opinion about it. Under the circumstances he thought the auction price must be taken as the market price. There would be judgment for the plaintiffs less per cent. commission, and less survey fees.
A TIRED DIVER.
E. F. Gibson claimed from T. S. Morton the
sum of $1,000 for breach of contract.
Mr. E. J. Grist (of Messrs. Wilkinson and Grist), who appeared for the plaintiff, put in an affidavit of service outside the jurisdiction by the Consul at Tientsin.
The plaintiff said that about January, 1903, he entered into an agreement with the defendant with reference to the removal of the wreck of the Pak Shan. He paid the defendant $1,000 for the job, and produced the written agreement. Defendant started the work in June, but ran away, leaving it unfinished.
His Lordship What did he run away for ? Plaintiff I think he was lazy. On looking over the work I found he had done nothing at all
Mr. Grist-He was a diver? Plaintiff Supposed to be a diver.
Mr. Grist And you had to start diving yourself?
Plaintiff Yes, and to remove the wreck. I suffered more than $1 000 damages.
His Lordship-Do you think you will be able
to get it?
Plaintiff I don't know, but I can try.
costs.
AN INTERPRETER WANTED.
The case in which Lan Tak-sban sued Leung Tai-haug for the recovery of $962,31 was called
THE HONGKON } WEEKLY PRESS AND
When further efforts to make the defendant understand proved futile, his Lordship told Mr. Hett he would have to provide an interpre- | ter, and adjourned the case till Monday.
FEMININE EXTRAVAGANCE.
The Sam Lee Company sued Sam Nhi to recover the sum of $54.25 due for goods sold.
His Lordship (to defendsut)—Why don't you pay ?—I have paid.-
Where's your receipt P-I was informed that no receipt was necessary, so didn't take one.
Did you have all these goods ?— Yés.
His Lordship-Well, you've got to prove you paid; the onus is on you. The plaintiff said to me-"You cannot read, what do you want a receipt for ?" I bought goods to the value of $26.
His Lordship-Bat they are claiming $54.25 P-Well, they havo added some more to the bill, my Lord.
Is your master in Court He has gone to Shanghai.
What does he allow you for clothing ?-He allows me $80 a month.
What do you do with it ?-Pay my house rent and household expenses.
:
Who is your master? Is he a Chinaman - Yes.
Well, he won't have much money now; no wonder he's gone to Shangbai. You've had all these things?—Yes.
And you've started on a $50 contract out of your $80 a month, How are you going to do it P-Of course I am ignorant.] I don't know.
His Lordship-That is just the trouble. I want to help you if I can, but I don't see my way. Judgment and costs for the plaintiff. You had better write and tefl
your master
Monday, July 2nd.
IN SUMMARY JURISDICTION.
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[July 9, 1906. His Lordship—I have not looked at that. In- the cases I have looked up two of the Judgas bold that rent does relate to land, the other three hold that rent does not, and it is my opinion that relating to land means, relating to the title deeds, not relating to rent, and I hold that you can bring the notion in the Summary Court. I have three Judges for me and two against, and that is enough for me.
Defendant did not enter an appearance, and judgment was given for plaintiffs with costs.
Mr. Deacon remarked that defendant had been so long in occupation without paying rent before plaintiffs proved their title that he objected to pay now that plaintiffs were in a position to demand it
A second case was called and similarly decided.
Wednesday, July 4th.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.
AN UNSUCCESSFUL APPEAL, ·
Judgment was given in the action making application for a re-trial of the issue between the Oficial Receiver and Wong Ka-cheung, to decide whether the latter was or was not a partner in the Lai Hing fire, which had become bankrup“.
Mr. E. H. Sharp, K.C. and Mr. H. E. Pollook, K.C., instructed by Mr. G. K. Hall Bratton (of Messrs Brutton and Hett), appeared for the appellants, and Mr. M. W. Slade, intructed by Mr. R. A. Harding, appeared for the respondents.
BEFORE MR. A. G. WISE (PUISNE JUDGE). admit any fresh evidence, and the Court
PARTNERS IN DISPUTE.
Cheong Ping-wai sued Io Kwok-pan for $237.17, Mr. E. J. Grist (of Messrs: Wilkinson and Grist,) appeared for plaintiff, and Mr. Harst house (of the Crown Solicitor's office) appeared for defendant.
Mr. Grist said this was a claim for a balance of account settlement. He had made a demand for payment sad received a reply that the amount, had been paid on 25th July, 1905. There had been an admission at one time that the money was due, so that it was for the defendant to prove the alleged payment.
'I'he Puisne Judge-Yes, the onus of proof of the payment rests on the defendant.
Mr. Hursthouse stated that formerly the plaintiff and the defendant were partners and had several transactions together. Receipts were not given, but the book was chopped as the money was handed over. As a matter of fact the money was paid in the presence of
witnesses.
Evidence was given for the defendant and judgment was given for plaintiff with costs.
Tuesday, July 3rd.
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. WISE (PUISNE JUDG®).
A QUESTION OF JURISDICTION. The Shan Shui Po Land Investment Com- His Lordship-All right. Judgment and pany, for whom Mr. Deacon (of Messrs. Deacon, Looker, and Deacon) appeared, sued Wong Kwai for $922.20, arrears of rent from July 1st, 1906, to May 31st, 1906, at the rate of $40 per month. His Lordship I understand the point has been raised that the Summary Jurisdiction of the Supreme Court have no power to try such | an action, as Ordinance of 1905 (section 10) provides that, except by way of appeal against the decision 1 of the Land Court, no proceedings relating to land in the New Territory can be commenced in the Summary Court.
on..
Mr. Hett (of Messrs. Brutton and Hett) appeared for the plaintiff, and the defendant appeared in custody.
The defendant, one of the returned coolies by the Indravell, was from the North. The interpreter tried to make himself understood in several dialects, including the Mandarin, but the defendant shook his head and gave the Court to understand that he had no knowledge of what was being said.
His Lordship-How do they understand bin in gaol when he complains so much?
Mr. Deacon argued that Ördiuance 10 of 1903 was conclasive on the point. There was nothing in the 1905 Ordinance which repasted in any way the provisions of the 1903 Ordinance, and that Qrdinance expressly dealt with the recovery of rent for land in the New Territory,
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The Paisne Judge said the motion to set aside the decision of the jury and to erect a new trial was founded on three grounds (1) misdireo- tion, (2) verdict against the weight of evidence, (3) fresh evidence. The Court. refused to
also refused to admit the newspaper notac as evidence. In reviewing the facts, he said there were two points to which exception might be taken the Chief Justice's strong expression that Wong Toni-ho was unworthy of credit, and his remarks with regard to the expert in writing; but he held that no goudds had been shown for a new trial on the ground of misdirection: In conclusion, he stated that it seemed to him the case had been very clearly put before the jury. The motion shoull not in his opinion have been brought befoe the Court, and the appeal should be dismi-sed with
costs.
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The Chief Justice's deliverance was a lengthy one, occupying more than an hour. At the outset he pointed out that the fresh evidence could not be admitted, and referred to the subject of shorthand notes, stating that these could not be admitted to supplement or contradict the Judge's notes. He demurred to the doctrine enunciated by Counsel that he should not pass any opinion on the character of the evidence tendered by any witness, and while admitting that there were certain defects in bis summing up to the jury they were not sufficient to warrant a re-trial on the ground of misdirection. In replying to the arguments of Counsel, be made several strong statementa. On one occasion he said "a more astounding case of misquotation (by Counsel) I never came across and later he described a remark of Mr. Sharp's as showing an unnecessary exuberance of language". In conclusion, he said I am of opinion that, on the grounds set forth, the motion for a new trial should be refused with costs, I have further to say with regard to the question to which we alluded, the compilation of the file by the addition of the two versions of the summing up, we propose to disallow the costs incidental to procuring this summing up as between solicitor and alieat. The amount will be small-perhaps it will not be felt. “It will at least mark our disapproval of what was done.
Mr. Slade asked to be released from the undertaking as to costs.
Mr. Pollock said there were certain points in the Chief Justice's judgment as to the inter- pretation of their argument to which he would like to refer. He understood it was the inton- tion of the appellants to carry this further, and that was why he would like to take the op- portunity of referring to those points.
His
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