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August 30, 1909.]
SUPREME COURT.
Friday, 20th August.
IN SUMMARY JURISDICTION.
BEFORE THE PUISNE JUDGE (MR. H. H. J. GOMPERTZ).
A HOUSEBOY'S CLAIM.
Lui Mui, a houseboy, brought an action to recover $15, one month's wages from Mrs C. Robertson, Quarry Bay. Mr. P. W. Goldring, for the defendant, asked for an adjournment as he had decided to bring a cross-action. He had paid $8 into court with a denial of liability. His Lordship asked what the cross-action was for.
Mr. Goldring-Simply for damage for leaving without notice. The man was in the service of Mrs. Robertson from the 11th to the 26th July. It appears he ran away. He was very obstreperous and on the 26th July knocked down Mrs. Robertson and ran away. Police Court proceedings will be taken, but I want to dispose of this first.
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His Lordship-When will the Police Court proceedings be taken ?
Mr. Goldring-I shall begin when this is finished.
His Lordship-You have waited a long time. Mr. Goldring-This is the first time I have been able to get hold of him.
His Lordship--Were the police immediately informed ?
Mr. Goldring-Yo.
The application for an adjournment was acceded to.
Monday, 23rd August.
INPPELLATE JURISDICTION.
BEFORE THE FULL COURT.
A COMPRADORE'S LIABILITIES. The Fall Court yesterday delivered its deci- sion against the appeal from the judgment of the Chief Justice in the action in which Messrs. S. J. David and Co. sued their compradore, Chan Ut Chiu, claiming $648,816.67, said to be due under a compradore's agreement. There was a counterclaim by the defendant for $55,000 which was deposited under the agreement.
The hief Justice. in the course of a judg- ment which took three-quarters of an hour to deliver, after dealing with the arguments of counsel and the authorities quoted, said he was of opinion that there was here a clear statement, made by both parties to the deed. that when a demand was made, the fact of making the demand created the obligation to pay.
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CHINA OVERLAND TRADE REPORT.
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upon the proviso for redemption operated, and if the amount was not paid the security was forfeit. In this clause there was a statement that the money demanded should be due and owing in virtue of the demand. His Lordship was doubtful whether he could hold that this itself Was all admission that the monies were dan and owing. even applying the law that ย statement made by a party to a deed binds him. But in the agreement there was a clause which mani- į festly referre to this clause in the mortgage as a security, and if a security, then a security for the amount owing. There was, therefore, a statement in the deed that the monies demand-;
they could not be owing except by
were owing in virtue of the demand; the person who was called upon
pay the money by the demand. This reference to the admission in the deed, although it was made in a document which was not itself a deed, showed clearly, if the mortgage did not itself show it. that the intention of the parties to the deed was that the mortgage was a security for the pay- ment by the compradore of monies so demanded by the firm, and so owing by the compradore, on the strength of which another and further security in cash was given by the agreement. His Lordship was, therefore, of the opinion that the judgment in the Court below should be reversed, and that judgment be entered for the plaintiff with costs of the Court below and of this appeal.
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The Paisne Judge, after dealing at length with the facts, said the position as he ap- prehended it was shortly as follows:- When a Chinese customer got goods from the firm and made default the vendor then suffered a loss, but he had taken from the compradore an assign ment of leaseholds by way of mortgage, with a proviso that the compradore should not be entitled to redeem unless on demand he made good that loss. When the demand was made the monies became owing, and that meant, he thought, owing from the compradore It would have been simple enough to provide that on losses being increased the firm might go against the property, sell it, and recoup themselves. But that had not been done: the proviso was that they must first ask the compra- dore to pay. He must get a demand in writing. On this demand he might, if he chose, pay, and on payment he was entitled, subject to the terms of the instrument to redeem his property. If he did not pay, the money did not cease to be owing, but he was not so far bound to pay. It was entirely optional for him to pay or not, and if he did not pay he could not be sued, because he had, it seemed, expressly refrained from agreeing to pay.
He
Mr. MacNeil and Mr. G. C. Alabaster, in- structed by Mr. H. J. Gedge (of Messrs. John- son. Stokes and Master) appeared for the appellants (plaintiffs), and Sir Henry Berkeley, K.C., and Mr. M. W. Slade, instructed by Mr. J. Scott Harston (of Messrs. Ewens and Harshad instead of that provided a security, the ton) represented the respondent
property, and the parties had apparently ex- pressly agreed that the firm should resort to that in default of payment. On the mortgage alone the firm could not sue him. It was recognised that a demand might be made on him, but on his default they could only go against the land. The effect then + as that under the mortgage deed the liability of the com. pradore, not being a personal liability. 'It was not necessary to go 0 was limited by the value of the mort- the extent of saying that the words gaged property. A much greater amount might money owing" operated as a mortgage co- be owing, but he need not pay unless he chose. venant to pay it was sufficient to say that If he did not, he lost his property. Or, if for they were a statement of fact that the money any sentimental reason he preferred to keep his was in fact owing, and being made in a deed property he must pay the sum demanded, which the fact could not be denied. Having arrived might be a very much larger amount than the at this conclusion it was not necessary property was worth. It might be said that to examine the interesting argument based the principle that money might be owing on his decisions, 28.
the way in from a man without his being under any which the intention of the parties to a contract personal liability to pay it, was unknown to the was to be ascertained. It would be convenient law. The an-wer was that it was not sufficient if he summarised the result of this judgment. to look at the mortgage deed alone, because that First, so far as the mortgage was concerned : document did not and was never intended to set There was no personal covenant to pay Chinese losses. There was not sufficient evidence of any agreement outside the mortgage to pay these losses, either from the recitals of the mortgage or aliunde. The mortgage itself did not imply the existence of such an agreement or liability. The provisoes for redemption could not be construed into covenants to pay the Chinese losses, although they were referred to in one of the covenants. There was no undertaking to pay the Chinese losses in the agreement. There was, however a clause in the mortgage which said that demands might be made by the firm for the amount of the Chinese losses, where
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out the whole agreement arrived at by the parties on January 30th, 1902. It is and was intended by the parties to be incomplete if read by itself. If the mortgage stood by itself. the absence of a personal, covenant was in it-elf 80 significant a feature that the mere fact that money was stated to be owing on demand would, he thought, rebut any presumption of personal liability. Fnt one could not, in documents so mútually connected as this mortgage and this agreement, take first one and construe it independently, and then proceed to interpret the second separately as if each were executed as an isolated transaction. The
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meaning of the parties could only be given effect to if the two documents, were taken as a whole, one completing the other. When his Lordship found a man saying in a document that money may be owing on demand made on him in writing, and saying in another docu- ment of even date, and to be read conjunctively with the first, that he would pay monies owing from him under the first document, then he felt obliged to conclude that the second statement related to the first, and to show how that first must be interpreted. He thought then that although in this case it was aconrate to say that the compradore was not personally liable under the mortgage alone, yet we must also say that, as it clearly did not stand alone, he had declared that under it there might be monies owing from him on demand, and that he had, under the agreement which completed the mortgage, expressly recognised that money might be so owing. He had, then, made a deposit as security for any monies that might be owing, and further expressly under took an unlimited personal liability in respect of them. His Lordship thought that the appeal must succeed with costs here, and in the Court
below.
Mr. Alabaster moved for judgment for plaintiffs for the amount endorsed on the writ.
The Chief Justice re not there some accounts?
Mr. Slade-Yes, but this is quite preliminary. There are a dozen or two more defences. This is only a preliminary canter.
The Chief Justice It is a canter right round the course.
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Mr. Slade-Your Lordships decide that there is an unlimited liability upon the mortgage for whatever may be due?
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The Chief Justice-Yes, on the accounts. We had better say that the judgment in the Court below be reversed with costs here and in the Court below.
Mr. Slade applied for a stay of execution for a fortnight, which was granted.
IN ORIGINAL JURISDICTI N.
ACTION FOR CRIMI AL CONVERSATION.
The action between Captain ·. A. Mitchell, of the ludo-China Steam Navigation ompany, and John Lemm, architect, came oa for bearing before his Honour the Chief Justice and a special jury composed of Messrs. E. J. Hughes (1oreman), J. W. Bolles, E. Shellim, M. S. Sassoon, M. S. Northcote, G. C. Moxon and E. H. Hinds.
Mr. Ho Fook was the first juror called, but was excused on the application of Mr. Slade. Mr. J. T. Douglas was also excused from sitting because he informed the Court that he was prejudiced in the case,
Plaintiff claimed from the defendant $15,0 0· as general moral damages, and $17,187.23 as special damages for money paid and payable in connection with divorce proceedings in Edinburgh.
Sir Henry Berkeley, instructed by Mr. H. W. Looker (of Messrs Deacon, Looker and Deacon) appeared for the plaintiff, while defen- dant was represented by r. M. W. Slade, who ́· was instructed by Mr. P. M. Hodgson (of Messrs. Ewens and Harston).
Sir Henry Berkeley opened' by reading the pleadings to the jury.
The statement of claim showed that the
plaintiff was a bankrupt and master mariner in the employ of the Indo-China Steam Naviga- tion Co., Ld., who carry on business at Hongkong. The defendant was at present absent from the Colony, but carried on business as an architect at 64, Queen's Road Central. At the time and places hereinafter mentioned the defendant unlawfully debauched and carnal- ly knew one, Henrietta Mauditchell, she then being plaintiff's wife and bearing his name; (a) On different occasions in the months of February, March June, July and August, 1899: at No. 4 and also at No. 8, Granville Avenue, Kowloon, during the absence of the plaintiff from the Colony, (b) On occasions in the months of June, July and August, 1900, which the plaintiff could not more particularly specify, at 4,Granville Avenue; (c) On occasions during a period extending from January, 1901, to September, 1902, inclusive, at No. 6, Rose Terrace, Kowloon; (d) On the 12th and 13th October, 1904, at
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