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SUPREME COURT,
Monday, 13th September.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR MR. H. H. J. GOMPERTZ (PUISNE JUDGE).
SALVAGE DIFFICULTIES.
The Chan Tai Kee firm brought action against the Yui Hing Loong firm, Mongkok, to recover $992.50 for damages for breach of con tract, it being alleged that defendants sold to plaintiff a hardwood spar to be used as part of the plant for raising a sunken wreck but which was rejected as unfit for that purpose. In the alternative they claimed $668.76 for breach of warranty. Mr. Davidson, from the office of Messrs. Hastings and Hastings, appeared for plaintiffs, defendants being represented by Mr. Leo d'Almada and Castro, of Messrs Goldring, Barlow and Morrell.
Arising out of this action was another, in which Shan Ya Nam sued Yui Hing Loong for the recovery of $323.74, the value of a hardwood
spar.
Mr. Davidson explained that the plaintiff had a contract to raise the steamer Ying King, The which had foundered at Castle Peak. method of raising was for four junks to be an- chored above the sunken steamer and cables passed beneath the bottom of the ship and over the timbers, which take the whole strain. For this purpose timbers of a particular length were required, and to make up the number needed plaintiffs approached defendants and said they wanted a spar in order to proceed with their contract, and were willing to pay a good sum for it. A hardwood spar was sent to the scene of the operations, but plaintiff's foreman noticed that
it had a crack in the centre. It was ac- cordingly rejected and sent back.
Captain Douglas, marine surveyor, said he examined the log ten months later and found
a crack in it.
Mr. d'Almada said his defence was that there was no contract, no warranty, and that the transaction was a sale outright, plaintiff seeing the log he purchased. Moreover, they denied that the spar was cracked.
After hearing evidence the case adjourned till Friday.
CHEAP LIVING.
was
Some interesting, facts emerged during the hearing of the action by Pong Fook, of Hai- phong Road, Kowloon, against E. Hyndman, Jr., 16 Old Quarters, Kowloon Dock, Hunghom, claiming $43 for meals supplied. Mr. J. H. Gardiner appeared for plaintiff and Mr. P. Hind, of Messrs. Brutton and Hett, acted for defendant. Mr. Gardiner said the plaintiff was a caterer who supplied meals, and defendant was one of his customers. An account for $61 was run up and plaintiff succeeded in getting $18 after much pressure.
Defendant said that the arrangement was for $33 a month for meals supplied to himself and his wife. Plaintiff said he could give them a meal for 25 cents.
Cross-examined:
Do you mean to say he could feed you, who came to your meals hungry, for 25 cents a meal? He told me he could give meals for less than that. He told me if he had known I could not pay him $61 he would have given me different
"chow."
How many courses did you have ?—Three. What were they?-Fish, steak, ham. No sweets P-No.
Not for dinner? - No. Fruit?-Sometimes; when I asked för it, The arrangement was to pay at the end of the month P-Yes.
You did not pay him ?—No. You are a business man. You have seen promissory notes ?--Yes, but not in Hongkong How long have you been in Hongkong ?- Over a year,
Don't you know a promissory note requires stamp-I only knew lately.
His Lordship-Where did you come from?- Shanghai.
Didn't you know a promissory note requires a stamp-I never saw one before.
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THE HONGKONG WEEKLY PRESS AND
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It is not necessary to deal with them ?-Iyear an accom didn't know they must have a stamp.
You put your full name and address on this document ? Yes, so that he could get admission to the Docks.
That is not usual in promissory notes.-Hė asked me to put it down.
*Plaintiff, in answer to his Lordship, said he kept his accounts on a piece of paper. He kept no books. He added that he catered for ten people
plaintiff for the amount claimed, to be paid in Eventually his Lordship gave judgment for instalments of $20 a month.
Tuesday, 14th September.
IN ORIGINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR F. PIGGOTT).
A DEPORTATION CASE,
Mr.M. Slade, instructed by Mr. John Hastings, of Messrs. Hastings and Hastings, appeared to move for a writ of habeas corpus in respect of Sung Yau Chi, a Chinese woman detained in Hongkong gaol, and who, according to a declara- tion made by her brother, had lived all her life in Hongkong.
Mr. Slade moved for a rule directed to the Captain Superintendent of Police to show cause why he should not bring up the body of Sung Yau Chi before the Court to be discharged from custody. She was arrested three days ago on an administrative warrant. An order for banishment had been made against her, but no legal proceedings had been taken. She had simply been arrested and was detained not actually in gaol but at the Central Police Station. An order banishing her for five years had been made against her and she was about to be deported from the Colony There were several Ordinances dealing with the question of banishment, the most important being Ordinance 1 of 1892, section 4 of which gave the Governor-in-Council power to banish an alien for five years. Under the Gambling Ordinance the Governor-in-Council had power to make an order of banishment for such period as he might think expedient against any alien who was a professional gambler or who was engaged in the promotion of gaming. The reason given for the deportation of this woman was that she was concerned with gaming. Both of the sections quoted confined the power of banish ment to aliens, persons not being natural-born British subjects. The affidavits made it clear that she was born in Hongkong. She was born before registration.
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His Lordship-How are you going to prove it? Mr. Slade--With the assistance of the brother and such other members of the family, as can be found. I submit the onus of proof is on the Crown.
His Lordship granted the order and fixed the hearing for Thursday.
AN EXECUTOR'S CLAÏM. Ng Tek Tong, merchant, of 77, Bonham Strand West, brought action against Wong Cheung Cho, of 35, Bonham Strand West, claiming as executor, under the will of Ng Kim Wan alias Ng Kim Guan, to have an account taken of the partnership dealings between the deceased and the defen ant in the business of the Yuen Shing firm, of which business defendant was managing partner.
Mr. M. W. Slade instructed by Mr. C. E. Beavis, appeared for plaintiffs, and Mr. Eldon Potter, instructed by Mr. P. M. Hodgson, appeared for defendants.
A statement filed by plaintiff stated that Ng Kim Wan, a partner with defendant in the business, owned a quarter share of the business. Ng Kim Wan died on October 27th, 1899, but since his death no winding up of the business had taken place. In 1903 an account of the partnership dealings and of the profits due to the estate of the deceased was rendered to the family, showing $17,792.74 to be due to the estate. No portion of that money had been paid, though repeated applications had been mad, and neither had any account been furnish- ed of the partnership dealings since that year.
The defence set forth was that after the death
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[September 18, 1909.
was taken of the assets and liabilities of the firm and rendered to the family of the deceased. The firm ceased to carry on business after February, 1904, but the signboard was retained for the purpose of getting in outstanding debts. The business was wound up with the consent of the partners and it was found impossible to collect the debts due to the firm, which could not meet its liabilities. The original capital, amounting to $40,000 was not only lost, but there were to teels 7,000. liabilities and debts due by the firm amounting
Mr. Slade contended that on the death of Ng Kim Wan there was a debt due by the firm which could only have been discharged by a settlement.
His Lordship thought it was a case of “Heads I win; tails you lose." If the representatives of the deceased chose to leave the money in the business they did so in the hope of securing further profits.
Mr. Slade said they were in the position of debenture holders. He further argued that where a sum of money invested in a firm is declared by Act of Parliament to be a debt it requires some specific and definite agreement to be arrived at between the creditor on the one To side and the debtor on the other to turn that debt into something entirely different. hold, as his Lordship had done in a former case, that by merely leaving the money there the deceased or his executor was deemed to have sacrificed his legal rights was to override by judicial decision the plain words of the Act of Parliament. ·
Mr. Potter contended that a new partnership was carried on from the time of Ng Kim Wan's death until 1904. In that year one of the sons of deceased was a partner in the business, and he could produce evidence that after the death the partnership was carried on with the consent of the family and that one of the sons drew the interest which the estate was entitled to every year In 1904 the family, seeing they were likely to lose money, withdrew from the partner- ship, and now they came before the Court and said they were entitled to their capital of $11,000, notwithstanding that all the capital had been lost.
His Lordship reserved his decision.
ANOTHER HABEAS CORPUS APPLICATION.
Another application for habeas corpus was presented by Mr. M. W. Slade, instructed by Mr. Otto Kong Sing. In this the Captain Superintendent of Police was called upon to show cause why Suu A Wan, at present de- tained in Victorial Goal, should not be delivered from custody. A rale nisi had been previously. granted and the case came on for hearing. Mr. Č. G. Alabaster, instructed by Mr. H. L. Dennys, appeared on behalf of the Acting Attorney-General (Sir Henry Berkeley K.U., to show cause.
The affidavit signed by prisoner was to the effect that on June 10th last he was arrested on charges of armed robbery and murder alleged to have been committed in China. He was brought before Mr. J. "R. Wood, and remanded from week to week until July 9th. pending, as he believed, the arrival of witnesses for the prosecution. On July 9th he was brought before the Magistrate for the purpose of identification, but of the two witnesses called for the prosecn- tion one failed to identify him and the other was doubtful as to the identity. Subsequently he was informed through his solicitor that it was proposed to discharge him on the charge of On August 4th he was brought before murder. the Magistrate, presumably to be discharged, but he was again remanded because the necessary requisition for his surrender had not been made by the Governor. On August 10th he was discharged on the charge of murder. The Court sat within the precincts of the gaol and not in the Police Court. Immediately after he had been discharged and while still in custody at Victoria Gaol he was arrested on the charge of armed robbery. Prisoner denied both charges and claimed to be a political reformer.
Mr. Dennys stated in his affidavit that the sittings were held in gaol entirely for the benefit of the prisoner, who was arrested in gaol in the presence of the Magistrate and two solicitors with the object that he might not be seen by
No
That sounds incredible that a business man of Ng Kim Wan the business was carried on by, in the other charge before identif. Witnesses
should not know anything about a promissory note.-I never dealt with them.
the surviving partners with the consent of the family of the deceased, and that every
evidence was brought before the agistrate to show that prisoner had ever been a political
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