August 2, 1909.]
perty- -to arrest the two partners. The bailiff would go into the box and say there was not sufficient security, and he thereupon arrested the plaintiff. The plaintiff entered the shop while the bailiff was in possession. The bailiff handed lum the writ of execution and asked him, "What are you going to do about this?" The man grinned and said, "I no savvy,"
His Lordship-Did you against the man?
Mr. Dixon-Yes.
partner.
issue execution
He was adjudged a
adjudged a
His Lordship -Had he been partner at that time?
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CHINA OVERLAND TRADE REPORT.
being as to $100 for one month's wages; as to $100, one month's wages in lieu of notice, and as to $9.50 out of pocket expenses agreed to be paid by defendants.
Plaintiff was represented by Mr. Crowther Smith (of Messrs. Almada and Smith), and Mr. Davidson (of Messrs. Hastings and Hastings) appeared for the defendants.
His Lordship said he had come to the con. clusion on the facts that the engagement was a temporary engagement, that was to say, that the plaintiff was there on trial. The only sum due to him, then, as salary, was the amount paid into Court, 833.33. s to the claim for Mr. Dixon-Yes. In argument before Mr. expenses, it seemed to his Lordship that it was Slade your Lordship said you were prepared to not a condition precedent that accounts should hold that he was a partner.
be given. If they were wanted, the defendants His Lordship-I simply gave execution should have asked for them. The sum was a against the firm.
small one, $9.50, and on the whole his Lordship thought that if there was such a condition at- tached it might have been held to be waived by the defendants. He would give judgment for the plaintiff for the amount paid into Court, and the amount of his expenses, 89.50.
disputed
He said
Mr. Dixon-Mr. Almada never that we could not arrest the plaintiff we could not pursue both our remedies.
His Lordship-I don't think you could have issued execution against the man.
Mr. Dixon-There is a provision in the Code. His Lordship-All you got was judgment against the Po On. There was no finding as to who was or who was not a partner.
Mr. Dixon-The bailiff, on not finding sufficient security in the shop, arrested the plaintiff.
His Lordship--What did the sale realise?
Mr. Dixon-The stock has not been sold. Another partner came and paid the debt. Proceeding, Mr. Dixon said the provisions on which he relied were section 23 of Summary Jurisdiction Ordinance No. 4 of 1873, section 371 of the Code and the Indian Civil Code, section 230.
Defendant was called. and deposed to the value of the stock in the shop at the time it was seized by the bailiff being about $300 Plain. tiff stated that the value of a pair of shoes was from forty to fifty cents, and his (defendant's) estimate was based on the number of rows of shoes.
Cross-examined-What are you?-A jeweller. Then you are not a judge of the value of shoes-Well, I have been wearing a good many shoes, you know.
Bailiff Leonard also bore testimony to the fact that there was not sufficient stock in the shop when he visited it to satisfy defendant's judgment. Plaintiff was pointed out to him by defendant, and arrested by the latter's in-
structions.
Mr. Smith said it was not reasonable to put it in the bailiff's hands to decide whether there was sufficient property in a shop. Taking away the liberty of a man was a very serious thing and ought not to be resorted to if there was any probability that it was not required.
His Lordship--Supposing you had been in possession of proof that there was much more stock than was required to satisfy the judgmeut, then I think the arrest would have been made at the peril of the defendant in this action. He told the bailiff to arrest the plaintiff, and he is responsible. It seems to me that the stock here was not sufficient.
Mr. Smith-There is really no evidence to that affect. No attempt was made to value the property. They did not even look at the shoes to see if they were the most expensive kind or the cheapest.
His Lordship-I asked the defendant that and he said they seemed to be of three differeut kinds.
Mr. Smith-The defendant said the bailiff looked at only one pair of shoes.
His Lordship-On the authorities before me it seems to me that the arrest was quite justifi- able. However, it is an important matter, and a matter the profession would like settled.
Mr Smith-We certainly should, my Lord. His Lordship-In that case I won't give any judgment now. I think it would be better to consider the matter and consult the Chief Justice.
Judgment was reserved.
Wednesday, July 28th.
CLAIM FOR WAGES.
The Paisne Judge delivered his reserved decision in the case in which A. Landau sued the Oriental Brewery Co. to recover $209,50,
Mr. Davidson said his Lordship had discretion in the matter of costs, which need not necessarily follow the judgment. He submitted that in this caso the plaintiff's claim was not a genuine one; it was merely a "try on."
His Lordship-I am not sure that it is. Mr. Smith --I am certain it is not, Mr. Davidson asked his Lordship not to give the plaintiff his costs in the action. If his Lordship thought the case was a genuine one, he had nothing more to say; if it was otherwise, he thought the defendants should get costs.
His Lordship-I shall let the costs follow the judgment.
A SUMMARY OR ORIGINAL ACTION? due for money lont were brought by Kan Tsoi Three claims to recover principal and interest
Shi against Woo King Hang. The first claim was for $795.42; the second for $570.77; and the third for 8642.27.
Mr. Eldon Potter, instructed by Mr. F. X. d'Almada e Castro (of Messrs. Almada and
dant was represented by r. J. W. Orr, who Smith) appeared for the plaintiff, while defen-
Messrs. Hastings and Hastings). was instructed by Mr. John Hastings (of
taken together.
His Lordship asked if the cases were to be
Mr. Potter asked his Lordship to take them together.
Mr. Orr said he was going to object to his Lordship hearing any of the cases. In the three actions brought against the defendant the total umount came to $1.800 without interest. He submitted the ten alleged loans were all one causo of action, and that the plaintiff could not divide her claim so as to bring it in the summary court.
His Lordship-Are there any negotiable instruments?
Mr. Orr-No, these are simply claims for money lent.
His Lordship-The parties in these cases are all the same?
Mr. Orr-Yes.
His Lordship-A wily plaintiff would always get promissory notes.
Mr. Orr-There is no question of promissory notes here. Several separate contracts may come to one cause of action.
His Lordship-I think I am inclined to agree with you. Give me your authorities.
Mr. Orr, after quoting authorities submitted that plaintiff's proper remedy was not in the summary court, and asked his Lordship to dismiss the actions.
Mr. Potter admitted that a plaintiff was not allowed to split up his cause of action, but his case was entirely different. His client made certain loans in July, 1908, and charged a certain rate of interest, and those loans were to be repaid by certain dates.
Mr. Orr said he had had no notice that the loans were repayable on different dates.
Mr. Potter said there were three items on the first writ. The first loan was made on July 2nd and the next two on the 5th. All those loans were repayable two months after date, and the interest charged was one per cent per month. On the third writ there were three loans, one made on the 19th and one on the 25th July, and another on August 21st. Those loans were repayable on a different date altogether, and carried a differ- ent interest.
99
His Lordship-When are they payable ?. Mr. Potter-Three months after date, and the interest WBS 1.2 per cent. Proceeding, Counsel stated that there were four loans on the second writ, and they were repayable at the end of the winter solstice. They were soparato contracts on the separate writs, and interest and principal were repayable at different times. There could be no splitting about that. On the first writ plaintiff demanded her money when it was due, and could not get it.
Mr. Orr-Then you could have sued for tho whole of it.
*
Mr. Potter stated that it was not allowable to split a claim for $1,000 so as to bring the action within the summary jurisdiction. The Ordinance referred to an action the subject matter of which exceeded $1,000.
His Lordship-The question is whether it does here?
Mr. Orr said the point was whether these ten separate contracts constituted one cause of action.
Mr. Potter asked how that could be (when they were in fact different contracts. The case cited by his friend was one continuous contract which could not be split up. Here there were three different contracts, and if the plaintiff had brought an action at the end of the eighth moon she could not have sued for money due at the end of the ninth moon. It did not make it one cause of action because they liked to give the defendant grace.
Mr. Orr contended that if the dates were allowed to run on until over $1,000 had been remedy in the original jurisdiction. borrowed, then plaintiff must take her proper
Mr. Potter said the items in this case were not connected at all. His friend's argument was that because the plaintiff did not take staps at the psychological moment the three actions were all one.
His Lordship (to Mr. Orr)-Supposing you bought a horse from a man, and a month after- wards bought a gun, if the amounts were not paid wouldn't that be two different causes of
action?
Mr. Orr said it would not, and submitted that in the present case there was but one cause of action.
His Lordship -I am not sure, but it seems to me that these are not connected and continu- ous transactions.
Mr. Potter said his friend's grievance was because the plaintiff did not promptly go for
this man.
Because she was not harsh she was
to be deprived of her remedy in this Court.
His Lordship stated that he was not prepared to decide the point at once, and on the sugges- tion of Mr. Orr adjourned the hearing until after tiffin.
On the Court resuming,
Mr. Potter stated that before his Lordship gave judgment he wished to call his attention to a case he decided the other day which was very much the same.
Mr. Orr objected. He thought his friend had had ample opportunity to raise the point in the morning.
His Lordship-You mean I gave judgment in a similar case?
Mr Potter-Yos.
His Lordship-Very likely the point was not, taken.
Mr. Potter-Mr Goldring raised the point. Mr. Orr-That was a totally different case. Three promissory notes were given.
Mr. Potter-I was going to ask your Lord- ship, in case you intend to decide against me, to give us a further opportunity for arguing the point, as it leads to a strange proposition of law.
His Lordship-Do you mean you are taken by surprise?
Mr. Potter-My point is that it does not come in the splitting section at all, and that these three actions must become merged into one by some process of law.
His Lordship---On each writ there are several sums lent on different dates, and presumably they are repayable on different dates.
Mr. Potter-Those on one writ are all repay- able on the same date.
Mr. Orr-Some amounts are borrowed in the seventh moon, and one on the ninth moon. I have freely admitted that these are separate contracts, but I say that before this writ was. issued there was one cause of action.
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