358
th+
SUPREME COURT.
Monday, May 27th.
IN ORIGINAL JURISDICTION.
BEFORE THE CHIRF JUSTICE (SIR F. PIGGOTT),
A DISPUTED MORTGAGE,
THE HONGKONG WEEKLY PRESS AND
His Honour-Did he ever sign off P Sir Henry-Yes.
Evidence was then called.
The director and secretary of the Sze Yap S. N. Co, Ltd., stated that the plaintiff was engaged on 28th December last, and dismissed on 9 h April for general misconduct.
He was "always drunk" and did not navigate the ship properly. One of the objections against bim was that be was "teasing females on board. Witn- never gave the captain consent to carry on the ship. On 24 h the obnoxious fema e February he sent a message to the captain by Lo Lau Cheung with reference to that wo nao, and a few days later he to the captain himself that be did not like his taking that woman on but if he wished to take her to Kongmoon he should write to witness for permission. Hevidence never gave permission.
An application was heard to set aside a dead of mortgage. The parties were Long Kee of firm of Messrs. Fook Wo Chong, merchants carrying on business at 36. Wing Lok Street, and Ng Wai, merchant, carrying on business in Hongkong. The Hon. Mr. E. Pollock, K C., and Mr. H.G. & throp (instruct-board, ed by Mr. A. G. Jackson of Messrs. Johnso Stokes and Master) appeared for the plaintiff, and Mr. W. Slade (in-truoted by Mr. . K. Hall Brutton) represented the defendant.
4
The statement of claim showed that plaintiff purchased certain lease old properties in Hong Long from Kok Kum Yuk for $1,000, but under an all ged indenture of mortgage purpor- ting to have been made between the plaintiff a d the defendant on or about 6th June 1905, the defendant claimed to be the mortgage of the said premises. Plaintiff denied having sigued or executed the alleged indrature of mortgage, or having bonded the title deeds relating to the premises to the defendant, and be, therefore. el imed (1) a declaration that an indenture of mortgage, dated 6 h June 1 (15 and -lleged to have been made between the pl iatiff as mort. gagor and the defendant as mortgagee is null and vid; (2) D-livery up and cancilation of the said ind-utur of mortgage; (3) Cancellation of the registration of the said indenture of mortgage in the la d Office; (4) elivery up of all title deeds and documents relating to the said pro- perties which may be in the phase-sion or power, or under the control of the defendant; and (5) Costs and further relief.
Defendant did not admit plaintiff's claim, and averred that on 6th June 1905, & mortgage of the premises enumerated was executed in his favour by one representing himself to be -Long Bee and to be the registered owner of the property. Upon the execution of that mort. gag the title deeds relating to the property were hauded to him. D-feudaut further asserted that if the mortgag was not executed by the plaintiff it was executed by some one acting on hi instructions. The $10,000 adv uced by the d-fendant on the security of this mortgage was paid to the plaintiff or applied to his use on his instructions and the interest on the mortages was paid from the date thereof to 26th April 1906 by plaintif or by his instruc tions. On 23rd July 1903, plaintiff's tenauts the Ko Kee firm received a notice from Messrs. Brutton and Hatt demanding the repaymout o $10 000 with all interes due thereon on the 25 h August in default.f which the defendant would proceed to sell the property in pursua of the powers vested in him by the deed of mortgage. On the 1st August 1906, the plain. tiff's solicitors seut & communication to the defendant solicitors deuying that plaintiff had executed the said indenture of mortgage.
The defendaut filed a counter-claim for $10,0 0, and interest.
Evidence was called, and the adjourned.
Tuesday 28.h, May.
was
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. W18E (PUISNE JUDGE).
A CAPT IN'S DISMISSAL.
The action in which Captain R. Morgan sued the owners of the s.s. Shum Lee for $1,000 for wrongful dismissal, was resumed. Mr. C. F. Dixon, (of Messrs. Hastings and Hastings), appeared for the plaintiff, sud Sir. Henry Berkeley, K.C., instructed by Mr. R. A. Harding, appeared for the defendants.
The case for the plaintiff having coucluded, Sir Henry Berkeley stated that his Honour
·would observe from the pleadings that defend. ants admitted having dismissed the plaintiff from their employment be ore the term for which they had engaged him. They justified that sotion for the reasons set forth in the pleadings.
!!
You have seen the captain drunk?—Yes, I saw him the worse of liquor ou two vocisions.
Tell us about the ?- l'he first
was in
March. And the second ?-On 4th April, Tell as what y us«w ?- I saw the plaintiff in the saloon of the Shum Lee after six o'clock.
What time was the ship to sail ?-Seven o'clock.
e was in the saloon P-Yes, I spoke to him.
Hallo captain" and be replied "Yes." I said
The came out of the cabin. captain was very drunk,
His
woman
[June 1, 1907.
His lonour said :- In this case O_Yik Tong, the defendant, Was security for Ho Li Cho, the compradore of the Chinese American Commercial Co., and it is admitted on the pleadings that he requested Lam Sin Shang, the plaintiff, to join in the securityship. ex cuting a deed of indemnity against all losses and charges which he might incur by becoming surety. The first question which is raised on the pleadings is as to the nature of the transaction which took place between the Commercial Company. the International Bank, and Ho Li Cho which 1-d up to the signing of the promissory notes around which this action turns, and compelled Ho L Cho to come to his The sareties a second time for assistance.
clear that the terms of the agreement which was come to were terms of sellement between the mo-ibund company and their compradore of all questions outstanding between them: on the part of the Company in respect of claims which they w uld certainly have made, rightly or wrongly, against their compradore in respect of a quantity of gods which for one resson or another the Chinese who had ordered them would not take up: «nd on the part of the compradore, in respect of a o aim he hat made for wrongful termina- tion of his contract. This agreement, being the winding up of Ho-Li Cho's comprad ›ra- tra sactions ship, was, together with all material to bringing about the agreement, part of the compradore's business, and, if occasion arose, came within the contract of sure- tyship, and theref re also w-thin the contract of ndemnity between the plaintiff and defendant. The nature of the agreement was that Ho Li Cho should take over the goods for a certain sum, payable in three insta ments, represented Bix by three promissory notes at three.
nine months, for about $14,0 0. A fresh security
required by the bank to guarantee the due payment of the pro. missory not 8: and the bank as agents for the Company were to bagd over the dock warrants which they held on behalf of the company, on being satis ed with the security offered. Not ill this agreement was put through satisfac- torily can the compradoreship, or the security, or the indema ty, be said to have come to sa end: nor could the plaintiff get back the deeds which he had deposited. Anything, therefore, in the nature of a further agreement made with the same end in view, the termination of the compra loreship, must be in continuation of the If he was so drunk how was it you allowed first agreement, so long as the original relations him to sail within an hour in charge of the between the parties were maintained. Shum Lee?-I hai no power to stop him. mere signing of the promissory notes which were He was capable of controlling the steamer ?-essential to effect the obj at which all parties I could not tell.
You are sure he was drunk ?—Yes. On the return of the steamer on the 6th, you had a complaint made to you as to what bad occurred on the voyage?—Yes.
In consequence of that did you call a meeting of directors ?—Yes.
What
was decided to be done? They decided to dismiss the captain.
The plaintiff went to K ngmoon on the 7th, and on his return did yn give him notio of dismissal ?--Yes, I sent him a letter.
Did you dismiss any of the other officers ?— Yes, the chief mate.
For the same reason ?-Yes.
Yer. Drunkenness ?- The same morning he came to your office? -Yes. I paid him $61.66, his wages.
What passed between jou ?-He signed the receipt, and shook hands.
At that time he did not protest against being dismissed?—He said nothing at all.
Cross-examined--Was the only indication that the captain was drunk the fact that his eyes were red and there was wine on the table?
Yes, and he did not speak clearly.
The chief officer was not on board ?-No. In spite of that you allowed the e plain to take the steamer from the wharf?-I came at 7 o'clock and saw the chief officer was there. Did you tell the captain he was drunk P Yes, I told him he was very drunk. said no, and went away.
After other evidence, his Honour gave judg. ment for defendants with costs,
Wednesday, May 29th.
IN ORIGINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR FRANCIS PIGGOTT).
AN IND' MNITY CLAIM.
He
and
WBS
The
had in view did ant alter these relations; they took the place of the compradore's security, but were covered by the indemnity; and therefore any liability which fell on the plaintiff by his being called upon to pay the promissory notes But must be repaid to him by the defendant. it was said that the position of the parties had occurred in connection with the signing of the promissory notes. Undoubtedly negotia- tions went on between all parties concerned and some others with a view to forming 8 partnership to buy these goods and start a business with them. If this had been carried through, and the plaintif undoub- new firm, then bad joined the tedly that would have put an end to the indemnity. But it fell through, and I cannot incorporate into what actually took place any of the ideas which were appropriate to what it was hoped by some would take place. Neither the firm nor any of the cognate ideas connected with it came into being. Does the introduction of the additional security of the Cheung Yu Hong to the promissory notes make any difference? I tak not per se, 88 it W88
the part of
arrangement come to for terminating the compradore- But it was stre-
Judgment was delivered in the action brought by Lam Siu Shang and She Wai Chung against Yik Tong to recover 1 581.94 bei g money paid by plaintiffs as sureties for defendant on 5th May, 1905, on a promissory note dated 5th August, 1:04, and made by the plaintiffs and defendant and on- Ho Li Cho, in favour of the International Banking Corporation, and as to 8741.60, money paid, and in the alternative auously contended Lam Sin Chang claims the sum of $13,581.91 Hong were something more than parties to the under a deed of indemnity, dated 22nd Septembertransaction, as I have hitherto described it: 19 5, made between Lam Sin Shang and the
defendant.
Mr. M. W. Flade (instrusted by Mr. Wi kia son of Msers Wilkinson and Grist). appeared for plaintiffs, and Hon Mr. H. E Pollock, K.C., in tructed by Mr. Dixon, of Mess & Hastings and Hastings, appeared for the Defendant.
A.
ship of Ho Li Cho.
that the Cheung Yu
that they were to have the warrants as security,
which were only to be released as Ho Li Cho could redeem them by proceeds of the goods If it had been proved satisfactorily, I think this might possibly have had the same eff-ct as the formation of the projected firm. But the facts are against it. The bank certainly was no
C
No comments yet.
Private notes are available after approval.