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wooden lighters for the sum of $5,200, $31,200 in all. On March 26th Ah Ming assigned his | interest in the contract to the plaintiff. Ou March 30th the plaintiff entered into a con- tract with the defendants to complete the work left unfinished by Ah Ming, in accordance with the clauses and conditions of the said con- traots, by 1st September and 26th October. Plaintiff completed the work, which was accep- ted by defendants, but they had not paid him the balance of $9,700.72.
Defendants contended that the terms of the contracts in question were not sufficiently set out. It was provided and agreed in the contract that the first vessel should be ready for sea by the 31st December, 1906, and the second by 10th January 1907, and that should their completion be delayed by reason of carpenters' work not being finish. ed a penalty of $25 per day would be payable. It was provided and agreed in the second contract that two out of the six lighters in question abould be completed and launched by 28th January, 1907; two more by 26th February; and two more by the 26th March, and that a penalty of $20 per day for late delivery would be enforced in the case of each lighter. The plaintiff took upon himself all the liabilities that had already soorued, or might thereafter accrue, of Ah Ming to the defendants under the contracts. Defendants admitted receiving the notice of assignment referred to which was contained in a letter dated 23rd March, and written to the defendants by Mr.. K. Holmes, as solicitor for the plaintiff. The defendants wrote to Mr. Holmes pointing out that the assignment would not be in any way binding upon them without their assent, and stated that they were prepared to accept the plaintiff as contractor under their said contracts in place of Ah Ming, upon the understanding that the plaintif accepted all the liabilities of the said Ah Ming, including the heavy penalties for overtime which had been then already incurred. They stated also that the defendants would enforce such penalties against the plaintiff, and that they had informed the plaintiff to that effect. Mr. Holmes wrote a letter in reply accepting on behalf of the plaintiff the burden of all claims of the defend- ants against Ah Ming under the contracts, Defendants contended that the plaintiff was
· subject to all the liabilities of the said Ab Ming, including the penalties for overtime which had then become payable. Defendants denied that the sum of $9.700.72 or any sum was due and owing to the plaintiff. According to the correct state- ment it appeared that plaintiff was indebted to the defendants in the sum of $3,268.38.
Mr. Slade stated that one of the issues would be the construction of the contract, and the other the defaults by George Fenwick & Co. As his Lordship would notice from the docu. ments, on March 30th, the date of completion of steamers was already passed. On that date one lighter only had been completed and launch- ed. After the work was completed Fenwick & Co. delivered an account showing what they conceived to be the position between the parties. Mr. Pollock contended that the position taken up by the defendants was certainly a good position in point of law. The defendants could not be called on to recognise an assignment from Ah Ming to Ng Wah, and the only con- dition on which they recognised it was that Ng Wah should accept the previous contrac tor's liat ilities for the whole work. It was im possible for the plaintiff to contend, in view of the position he had taken up, that letters written in answer to the notice which expressly formed part of his pleadings, could not be referred to.
Mr. Slade I never suggested they could not be referred to. I said they could not be read as part of the contract.
Mr. Pollock-We would submit that they can be read as part of the contract, and it is quite obvious from the letter of 25th March from the defendants, that the defendants only con- sented to the assignment upon the understand. ing that Ng Wah would be liable for the heavy penalties already incurred.
THE HONGKONG WEEKLY PRESS AND
His Lordship-This is a contract to perform certain work, and that work has not been carried out, therefore the penalty olause has expired. In the letter of the 25th March the intention of Fenwick is perfectly clear, but it has not been carried out.
Mr. Pollock-The penalty clause cannot be said to have expired until all the work has been done.
His Lordship-I don't think I need hear any further argument on the point, so far as the defendants are concerned. I rather sympathise with them because their intention was made perfectly clear. They wanted plaintiff to accept liability. At that moment there was in existence a document by which he did not accept liability at all. We must construe this contract with the other contracts to which it refers. Putting it in the most favourable light possible I cannot see how the penalty condition can possibly be introduced. There is no agreement for taking over existing liabilities, and in spite of section 25 of the Judiosture Act I cannot see where there has been an expressed consent to the assignment and substitution of & new contract, I cannot see where any question of liability can come in. Then, so far 88 the future is concerned, the penalty clause related to the completion of the work at a certain date which date had then expired. I cannot see how it is possible that there is any penalty clause attaching to the present plaintiff. But assuming that I put all the letters together, and all the documenta into one copy, I cannot see how the defendanta can be successful, for there is the fact that payment of already accrued penalties had been specially arranged for between Ng Wah and Ah Ming. There is very clearly expressed inten- ticn, but I think they failed to force it on the plaintiff, and on this point the plaintiff is right. How far that affects the rest of the case I don't know.
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Mr. Blade announced later that they had agreed the figures at $8,936.62 to be the amount owing by defendants to plaintiff, and asked for judgment.
Mr. Pollock-This, of course, must be con- sidered without prejudice to our right to appeal.
His Lordship Yes, you can appeal on the point of law. I will give formal judgment and costs for plaintiffs.
Wednesday, July 29th
IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
LONG STANDING LITIGATION.
In the action between Li Po Kam and Li Po Yung, plaintiffs, and Li Ling Shi and Li Taung Pak, defendants, and in the matter of a claim by the Cheong Shing Bank and by Wong Tong to be entitled to the sum of $.1,524.94 paid into Court.
Mr. M. W. Slade, instructed by Mr. C. E, H. Beavis (of Messrs, Wilkinson and Grist) appear- ed for Li Po Kam and Li Po Yang; Hon. Mr H. E. Pollock, K.C, instructed by Mr. R. F. C. Master (of Messrs. Johnson, Stokes and Master) represented the Cheong Shing Bank and Sir Henry Berkeley, K.C., instructed by Mr. A. Holborow (of Messers. Deacon, Looker and Deacon) appeared on behalf of Wong Tong.
According to the statement of claim the plaintiffs were judgment creditors, and had obtained judgment against the Yik Loong Wo Kee Bank for the sum of $27, 00, interest thereon and costs on April 11th, 190), and the judgment still remained wholly unsatisfied. The Lai Hing firm was indebted to the Yik Long Wo Kee Bank for a sum of over $200,000. This sum was paid into Court as the property of the Lai Hing firm, and did not form part of the estate of one Lai Bing. Lai Sing was, during his lifetime, a partner in the Lai Sing firm, but such partnership ceased on his death, which took place in the year 1990. The plaintiffs claimed therefore that it might be declared that they were entitled to the sum paid into Court for the purpose of satisfying so far as the sum would extend, their claim as judg. ment creditors in the action of 1905.
In the statement of defence the defendants denied that the Lai Hing firm was at any material time indebted to the Yik Loong Wo Kee Bank, or that the money paid into Court or any part thereof was the property of the Lai Hing firm. During the lifetime of Lai Sing the accounts of the share of Li Chit in the Lai Hing firm were settled, and at the date of his death he had
[August 3, 1908.
no interest in the profits of the firm other than the rents of certain landed property, the whole of which had now been transferred to the persons entitled thereto under his will.
Mr. Slade-I propose to move that whatever | the verdict of the jury in this case on any of the issues before them, that neither of the two plaintiffs on the issues can succeed. I am absolutely and entirely indifferent to any verdictį the jury choose to give.
Sir Henry Berkeley-Is not this somewhat premature? Must I not open the case before it is possible for your Lordship to know whether
I have a case or not?
Mr. Slade-I offered to do this before the jury was sworn to enable them to save the expense of a jury. I do this for the purpose of saving time, because the case goes to the jury it will take several days, whereas ( think the whole matter could be settled in an hour.
Sir Henry Berkeley-If my friend admits all we have stated in our pleadings I don't mind waiving the point.
Mr. Slade I will admit everything in the statement of claim for the purpose of argument, His Lordship-That is for Wong Tong. What does the Cheong Shing Bank say?
Mr. Pollock-I am quite agreeable. Mr. Slade then raised the point that no appli cation had been made to take the matter out of the statute of limitations.
His Lordship-How long is that? Mr. Slade-Six years, and this is over twelve
years.
After discussion the Court came to the conclusion that the case was not a case that would be for a jury. Therefore a juror waI withdrawn by consent.
Sir Henry Berkeley then addressed his Lord- ship, and the hearing was adjourned.
IN SUMMARY JURISDICTION.
BEFORE MR. H. H. J. GoмPERTI (ACTING PUISNE JUDGE),
CLAIM FOR WASHING SODA.
Li Yan Song, trading under the style of the Kwong On Co, sued Sam Wo and Co,. for the return of three casks of soda powder which were, about the 19th June last, wrongfully removed from the godowns of plaintiffs at Mongkok and placed and detained in defendants' godowns. They also claimed $100 damages for detention.
Mr. R. D. Atkinson (of Messrs. Descon, Looker and Deacon) appeared for plaintiffs, and Mr. P. Sydenham Dixon for the defendants.
tiffs were manufacturers of washing soda, and Mr. Atkinson informed the Court that plain-
defendant also manufactured washing sods and soap. On June 19th plaintiffs' godown keeper came to Hongkong from Mongkoktaui after having looked his godown. After his departure a man approached some coolies at the godown and requested them to remove three barrels of soda powder to defendants' godown. On the following morning the occurrence was reported to plaintiffs' godown keeper who informed the police. The police endeavour- ed to ascertain the name of the man who ordered the removal of the soda, bat had been unable to do so. The three barrels of soda, however, were taken possession of by the police, but were released on the application of Mr. Dixon. They were re-arrested, however, on the application of the speaker. The person who removed this soda should be prosecuted to s conviction in the Police Court, but the gentle- man had vanished.
Evidence was called, and the osse adjourned.
A new regulation has just been issued by the Chinese Judiciary by which every member must now sign a pledge stating that he will refrain from the use of opium. "Chinese Public Opinion," from which we take this extract remarks :—It is essential that the Judiciary of any country should be above reproach, and undoubtedly this action taken by the legal officers of Chins is a public sunoun. cement of their intention to follow the high traditions which the profession has adopted in Europe an lands. It also indicates the genuine ness of China's decision to suppress the opium habit and the determination of officials to support the Government in its campaign.
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