100
he would be stultified if the Board differed from him, and he would be placed in a false position, having to give a vote on a question which he had previously dealt with.
Mr. HOOPER-I have nothing to add to what I stated in my minute other than that I wish it to be communicated to His Excellency and to invite an expression of opinion whether it would be in accordance with his wishes that my suggestion should be carried out.
The PRESIDENT-It will be forwarded.
THE HONGKONG WEEKLY PRESS AND
SUPREME COURT.
Monday, arch 1st.
IN SUMMARY JURISDICTION
BEFORE HIS HONOUR WR. H. H. J. GOMPERTZ (ACTING PUISNE JUDGE)."
BANK DRAFTS AND CONTRACTS.
Action was brought by Man Lee Chou and THE QUESTION OF EXHUMATION.
Co. against the International Banking Corpora- On the subject of the application for-permission tion to recover $840 amount alleged to be pay- to exhume a body from Mount Caroline Ceme-able under a bank draft dated November 14th tery, the Head of the Department wrote that the 1908. applicant, who was a native of the Tsang Shin district, had come down from the country for the purpose of exhuming his wife's body." He had chosen a "lucky" day for the purpose and came down two days before it to obtain permis- sion. Similar cases were hound to arise, and he recommended that a permanent sub-committee be appointed to grant exhumation permits.
Mr. HOOPER-I am in favour of granting permission to exhume bodies which are to be removed from the colony, provided we have the power to do so. Hare the law officers yet given their opinion on the point?
Hon. Mr. HEWETT minuted-We certainly should be informed if we have power to grant such an application.
DR. FITZWILLIAMS minuted-I agree with Mr. Shelton Hooper.
The PRESIDENT-No reply has yet been received from the Law Officers.
Mr. HOOPER asked that the legal opinion asked for as to their power to grant certificates for exhumation, be laid on the table. Had it been received yet?
The PRESIDENT-I have not yet received the opinion of the law officers of the Crown.
Mr. HOOPER-Until that is done we are not in a position to allow a corpse to be exhumed. I may say that according to a legal opinion. I have obtained neither this Board nor any other authority in the colony has power to grant permits for exhumation. That opinion may he taken for what it is worth, but I think the Government should be pressed to reply to the resolution which we sent a month ago.
"
At the request of the PRESIDENT, Mr. HOOPER moved that This Board will feel much obliged if the Government will reply to the resolution which was carried on 2nd February last asking for the opinion of the Law Officers of the Crown."
Hon. Mr. HEWETT seconded, and the resolu- tion was agreed.
it was
[March 6, 1909.
Mr. Kong Sing-Yes, the fact of their having paid the bill is sufficient.
His Lordship reserved his decision.
Tuesday, 2nd March.
IN CRIMINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE.
EMBEZZLEMENT BY A SERVANT.
Wong Chuen Man pleaded not guilty to three charges of embezzlement preferred against him while in the service of Auguste Raphael Mr. Otto Kong Sing represented the plain-arty on various dates from 7th December last tiffs, and Mr. C. D. Wilkinson (of Messrs, to 20th January, the amounts being $441.50, Wilkinson and Grist) appeared for the defend-$590.50 and $280. The Attorney-General, in- structed by Mr. Bowley, conducted the prose- cution and Sir Henry Berkeley, K.C., instructed d'Almada and by Mr. d'Almada of essrs. Smith, defended.
ants.
a
Mr. Wilkinson-That part is not admitted. I am instructed that no such notide was ever received.
was
The following jury was empanelled: Messrs. E. Gaster, Ed. Howard, A. . Soares E. H Summers, F. Esrom, David Gow and H. E. Desebrock.
Mr. Kong Sing informed the Court that the plaintiffs were a firm carrying on business here, and on November 14th, 1908. a bank draft was drawn on the bank of Hamilton, Vancouver, payable to Man Lee han and C. through the International Banking Corporation. The first of exchange, was duly received by the
The Attorney-General, in presenting the case Man Lee Chau firm and deposited in their safe. About December 22nd of the same year this for the prosecution, stated that Mr. Marty draft was stolen. Information was given to the was a merchant who resided at Haiphong and police, and a warrant was issued against the who also carried on business in Hongkong. person suspected of having stolen if together He owned a line of steamers which ran between with a further sum of $8.000. On December the two places, the vessels being mostly employ- 24th the managing partner of the plaintiff firmed in bringing up pigs for Chinese dealers. went to the defendant bank and took them Until recently the business in Hongkong was his solicitor's advice | conducted by Mr. Marty's brother who died on notice. acting on informing them that the draft had been lost, the 23rd January. Mr. Marty employed a and asking them to stop it until the second compradore, part of whose duty it was to collect the freight earned by these steamers in respect of exchange was received.
of pigs. Soon after the arrival of the steamer bills were made out and handed to the com- pradore who distributed them to the Chinese Mr. Koug Sing stated that the notice had importers, and a few days later the European staff been taken to the bank by the managing part- filled up the receipts corresponding to the bills ners of the plaintiff firm, and had been and handed these to the compradore for collection. the The money when received was kept by the rejected. On December 29th two of partners of the firm went to the bank compradore and used for disbursement and at and tendered them a Chinese notice, which the end of the year the balance was paid over to refused. He understood that one of Mr. Marty. The defendant was employed as a It was the | the employees at the bank advised the Man Lee shroff to collect. the freight bills.
Chau to telegraph to Vancouver, and this was duty of the shroff to pay over the sums collected done. On January 5th, on behalf of the plaintiff by him to the compradore as soon as possible after firm, he wrote to the manager of the Inter-collection. The system was that the compradore national Banking Corporation informing him had a book in which he kept entries in Chinese of the draft being stolen from the premises of of the imports and the dates of consignment to the Man Lee Chan, and giving the bank notice the dealers, while the shroff on collecting the to defer payment on presentation. In reply to bills made entries in his book, so that both books that letter the International Banking Corpor-should correspond. It had been usual to allow ation wrote informing him that without the accounts to stand over for a month or further particulars the draft could not be traced, two, according to custom everything must and that payment could not be stopped without be paid by the end of the Chinese year. . In advice from the person by whom the draft was this particular case the books of the Hong issued.
the On January 6th bank paid Wing Loong showed that the money had the first of exchange t some person or been paid to the shroff on the dates men- unknown. Notice given to tioned, but when the compradore examined the plaintiff's some days afterwards, and the books on the 20th January he discovered later on, in February, the plaintiff firm received that the defendant had not accounted for those. the second of exchange for this draft. This He spoke to him about it and the defendant was presented for payment, and was endorsed went out ostensibly to collect the $1312, but returned later in the afternoon alleging that he by the bank in red ink," original paid 6:1/09."
His Lordship-Are all these facts admitted? had received the money but had been robbed on Mr. Wilkinson--Not all, but even on those the way. Inquiries were made which ended in facts I submit that my friend has no case, the defendant being charged with embezzlement. set up before the The action is misconceived. He is unable to A curious defence was show any privity of contract thatsoever be- Magistrate. It was asserted that it was not the duty of the shroff to hand over the money tween the plaintiffs and the defendants.
until the end of the year, consequently the demand made to him on the 20th January should not have been made until the next day, and there was therefore no wrongful conversion. The Crown however would prove that the money had been received and not accounted for.
Hon. Mr. HEWETT wished to know understood no exhumations would be allowed until that opinion was obtained.
OF HEALTH. in The MEDICAL OFFICER reply to a question, said he did not mean to say that bodies were being exhumed, but he question-persous ed whether any one had the power to stop it.
Hon. Mr. HEWETT asked if he meant that bodies were being exhumed.
Dr. PEARSE NO.
The PRESIDENT-No person can exhume without the permission of the Sanitary Board.
Mr. HOOPER asked Dr. Pearse if he thought the Board or any officer had power to permit the opening of a grave.
Dr. PEARSE replied that the Board had power to open graves in any authorised cemetery.
Mr. HOOPER-Has any one else? Dr. PEARSE-Not that I am aware of, Mr. HOOPER-Therefore it would be illegal so far as you are aware?
Dr PEARSE-Yes.
SLAUGHTER HOUSE AT SHAUKIWAN,
Correspondence was received relative to the erection of a new building for a slaughter house at Shaukiwan.
Hon. r. HEWETT minuted-I think the Government should erect a slaughter house.
Mr. HOOPER-What would a new slaughter house cost, and what charge would the Govern- ment make for its use?
Mr. LAU CHU PAK The place is growing, and a slaughter house is necessary,
The PRESIDENT-The Director of Public Works estimated the cost in 1901 at $10.00, If we do not now wish to slaughter cattle there a smaller building costing less would probably be sufficient. The charges would be as in the other slanghter houses, 20 cents for a small pig, 40 cents for a large one.
wab
Mr. Kong Sing-I submit it is obvious there is a privity of contract. This draft is payable to Man Lee Chan and Co.
His Lordship decided to hear Mr. Wilkinson. Mr Wilkinson submitted that the drawee of a bill of exchange was under no liability what- soever to the payee of a bill of exchange until ́a contract was established between them by the acceptance of the bill. Even if money was specially placed in the hands of the drawee for the purpose of meeting the bill there would be no privity of contract unless some special under- taking was given by the drawee to the payee to pay the amount.
Mr. Kong Sing submitted that the defendants were clearly liable on that point. It was clear in this case that the bank were the acceptors, for they had paid the first of exchange, and con- verted to their own use monies belonging to the payee.
His Lordship-You say it is the fact of their having paid the first bill that makes them acceptors.
At the close of the case for the Crown, some discussion took place between the Attorney. General and the Chief Justice.
His Lordship remarked that the compradore had admitted that as long as the prisoner paid the money by the end of the hinese year it did not matter. Could the defendant pay it into
the bunk?
The Attorney-General-Clearly, I should think.
His Lordship-Then that alters the whole
case.
The Attorney-General-Well, my Lord, it establishes a most serious state of things.
His Lordship-If this man could have paid the money into the bank there is no larceny by bailee.
No comments yet.
Private notes are available after approval.