August 5, 1907.1
His Lordship-He hasn't got any. Mr. Harston-But he may bave some. His Lordship-Last week I explained the difficulties I was in, and asked you to be here to-day.
Mr. Harston-I have explained the reason, and would ask you to hear me.
His Lordship-Nobody can delay or adjourn the Court but the Court. That is laid down.
Mr. Harston-It was my misfortune not to be here, but I wanted to explain that we had arrived at an agreement that 30 per cent. should be paid out of the debtor's earnings.
His Lordship-Supposing he came before the Court next month and said he earned $5 or perhaps $50. It would take the shroff all his time to find out what he had earned.
Mr. Harston-If your Lordship holds you will not do it--
His Lordship--No, no.
APPL CATION TO E PUNGE PROOFS.
CHINA OVERLAND TRADE REFORT.
His Lordship refused the application with cost, which are to come out of the e tate.
APPLICATION FOR A PAYMENT OUT.
73
with orders given by the engineer, or of his not proceeding in the performance of the contract with the expedition required in the opinion of the engineer for the das falfimsat thereof. During his absence from the Colony Mr. Danby delegated the gen ›ral supervision of the works and exercise of his powers under the contract to his assistint, Mr. Thomas, Mr. Thomas exercised the powers confərred on the Engineer by the contract by serving a notice on the contractors on 18th Jannsey 1957 requiring them inter alia to employ not less than 200 men continually on the work, and intimsting that if this were not done the works would at the expiration of 7 days bɩtaken out of the con- tractor's hands and his workmen expelled: · Ọn the 25th January this threa was formally carried out, and it may be taken that there was in fact an ejectment of the plaintiff from th
Lam Pak-leung ex pirte Lam Woo. Mr. Pollock, instructed by Mr. F. X. d'Almada e Castro, moved on behalf of the Yee Shua Hen Kee firm, execution creditors of the debtor in original jurisdiction, action 314, of 904, who obtained a charging order on March 5th, 1906, under section 25 ss. 2 of the Partner ship Ordinance of 1897 upon the interest of the debtor as a partner in the Hop Yik firm in the partnership pro erty and profits of the said firm, for an order that the sum of $3,00 which was paid on December 6th, 1906, to the Official Receiver, and which said monies formed part of the interest of the debtor as a partner in the partnership property and profits of the said firm, b paid by the Ocial Receiver to the said Yes Shuc Henworks. Kee firm.
On a summons in-Chambers I held that Mr. Danby had no right to substitute any one for himself in this manner, and that therefore the ejectment of the plaintiff was illegal.
Re Lee King-sbek ex parte Pang Shin-tong. Mr. G. K. Hall Bratton (of Messrs. Brutton and Hett) applied to the Court on behalf of the Trustee in Bankruptcy, to expunge the proofs of the Yan On Insurance Company, the Fat Kee and the Heung Shan. Hon. Mr. H. E. Pollock, K.C., instructed by Mr. Hursthouse, (of Messrs. Decoys and Bowley), and Mr. P. M. odgson,H (of Messrs. Deacon, Looker and Descon), appeared to oppose the application.
Mr. Brutton referred his Lordship to section 2 of the Bankruptcy Ordinance for the inter- pretation of secared creditors. He said that in an issue tried sometime ago between these parties and a man called Chan Wai-chin, his Lordship the Chief Justice held that these people had no pledge on the property which was in the possession of the Trustee. The position was that they were to wait and see the result of that issue before the trustee came in BEFORE SIR FRANCIS PIGGOTT (CHIEF damages for breach of contract, ie, for the
Mr. Pollock stated that Lam Woo paid into Court a sum of $3000 as representing de fendant's interest in certain property in the Hop Yik firm which belonged tɔ the defend. The plaintiff wrote two letters protesting ant as a partner in that firm. The affidavit against what had been done, rescinding the of Mr. Almads showed that defendint kept contract wholly and entirely, sud informing the out of the way to avoid execution. He sub-defendants that he would hold them liable in mitted that they had obtained a good order, damages. On these facts a special onse has and that it must stand because it was prior been submitted to the Court which stated shortly to any date to which the title of the trustee raises the following points: in bankruptcy would relate.
His Lordship adjourned the case for con- sideration of the authorities quoted.
Tuesday, July 30th.
IN ORIGINAL JURISDICTION.
JUSTICE).
A SPECIAL CASE.
to see if he had any right to the property as against Chan Wai-chin. In that case it was decided that Chan Wai-chin, as against the other three parties, was entitled to the money The Chief Justice delivered judgment in the as representing the flour. The question then special case in which Lau Yeong Wood and Lam came on as to whether the trustee could proceed Choy were the plaintiffs, and the Standard Oil with the trial of the issue as against Chan Co. of New York the defendants. The dispute Wai-chin, but so long B.6 these three concerned the reclamation at Laichikok with the parties were on the file as secured creditors he building of a seawall there, it having been alleg. could not, as his action had to be for the benefited by the Standard Oil Company that the of the general body of creditors. They there- plaintiffs did not proceed with the work with the fore wished these people to substantiate their required expedition and they, in consequence, claims or withdraw. They had offered to with- took the work out of the plaintiffs' hands. draw on terms to which the trustee could not agree. It had been held by the Chief Justice that they had no mortgage or pledge and it was clear they could have no lien, so the only point was as to whether they had a charge on the property.
Mr. Pollock said he was in the case which same before the Chief Justice, and he thought Mr. Bratton was not sufficiently familiar with the judgment The Chief Justice held that his client had a charge as against the bankrupt. Then he went on to bold that inasmuch as the bankrupt had sold property to somebody else, and as the sale was purely a personal matter, it would not affect the purchase from the bankrupt. Later the Chief Justice said that the matter had now passed into the region of bankruptcy, but as the trustee was a party to the issue further questions could be debated as arising out of the issue. Therefore it look-d as if the learned Chief Justice imagined that as between his client‹ and the trustee there would have been further argument before him.
His Lordship (to Mr. Brutton)-What do you propose to do?
Mr. Brutton-The trustee cannot proceed to fight the issue for the benefit of these three creditors. Before taking the next step these three creditors must substantiate their claims.
His Lordship-You've got a step missing. Mr. Brutton-No, my Lord, but he cannot proceed so long as these three men are on the proof as secured creditors.
His Lordship-Their proofs are in ? Mr. Brutton-Yee.
His Lordship-And you're accepted them? Mr. Brutton-They have been accepted. His Lordship-Well, where are you now? You've accepted them, and now you want to
turn them out.
Mr. Brutton-They are formally bad, my Lord. They have not valued their securities. We want them expunged on the ground that they have no charge,
Mr. M. W. Slade, instructed by Mr. H1- stings, appeared for the plaintiffs, and the Hon. Mr. H. E. Pollock, K. C., instructed by Mr. Atkinson, of Messrs. Deacon, Looker and Deacon, appeared for the defendants,
His Lordship asid :—
There is a point of practice arising with regard to this special case which it is advisable that I should take this opportunity of settling.
I prefer the form given in Chitty to that given in Daniell. I think the writ and pleadings in the action must be impliedly incorporated in the case without special reference: but any other documents, or interlocutory judgments, to which it is intended to refer must be incorporated.
I wish also to add this: I cannot agree that although undoubtedly a special case is a matter of agreement between the parties, therefore the Court is entirely bound by its terms.
The Court clearly should not interfere with the agreement between the parties so as to introduce other documents: but it must have a control over the agreement. It is entitled to know what the effect on the action of the opinion on the special case will be: and I can conceive a case occurring where the Court might refuse to entertain a special case on the ground that it is irrelevant to the action. This is, of course, an extreme case but I mention it as I think it was suggested that the Court was bound to hear any special case which the parties chose to put before it: a proposition to which I feel bound to demur.
Are the plaintiff, entitled tɔ sao on · quantam merait for the work already done giving credit for the sums already reosived from the defendant in part payment, as same received on account of the work and labour done? In other words, are they satitled to trest the contract as gone ab initio, and sa› for the work they have already done? Or is their
to right merely this,
· for
800
18s of profit they would otherwise have made, had they been allowed to continue and com- plete the contract? The plaintiffs relied on the leading case of "Cutter v. Powell," or rather ou the doctrine which has been superimpɔsed upon that case, in subsequent cases whion are collected in Smith's Leading Cases, Vol, II, p. 1. That doctrine is this-where there is an naqualified refusal by one party to a contract to perform his part of it. it is treated as rescinded and the other party may ane on a quantum meruit, for anything already done
In this case a building contract was entered into between the plaintiff and defendants for the construction of certain works at Lsi Chi Kok. Mr. Danby was the Architect and Engineer and Arbitrator and he had all the powers which are usually conferred by building contracts. Among other powers he had one (ol. 10) which allowed him to suspend the works or take them out of the contractor's hauds, in the event of the contractor failing to comply'
under the contract.
The doctrine is somewhat recɔndite, and in its exposition some parts of it are not wholly intelligible. Stress was laid by the learned Counsel for the defendant on the fact that there had been many payments on account at the price or rate agreed upon between the pait es that admitting the breach by the wrongful ejectment by Tomas, the damages wooll naturally by calculated as they are calculated in the case of any other breach of contract, by determining the profit which was lost to the contractor by this wrongful act, but not by re- opening the whole contract, and paying at another rate for work which has already boon paid for in part at the agreed rate.
Were it not for the fact that there are two important cases in which the questi on has been decided on the basis of the plaintiffs' argument a prolonged examination of the cases would have been necessary in order to see whether the defendant's argument took his eise out of the authorities. But the question is really narrowed to this are there any facts in this one which take it out of the application of the Privy Council's decision in "Lodde- v. Sloway " ?
I must first however refer to “Ranger v. Great Western Railway" where this claim of the plaintiff was put forward as a payer in s bill in equity. There had been an alleged wrongful ej otment of the contractor as in this case: and he sought "to pass by the contract altogether, and in respect of the tortuous pos- . session to disaffirm or set aside the contract sud to obtain the benefit of a quaatum meruit, as if there had been no contract.
Lord Broug ham said This is what we cannot do sad what the Court of Chancery could not do: th appellant must be left on that ground to hi action at law." The Lord Chancellor's judga ment however seems to go much further for he defines what the appellants legal_rights were, in the same way as the learned Counsel
for the defendants in this case. It is worthy of remark that neither "Cutter v. Powell
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