October 11, 1909.]
SUPREME COURT.
Friday, 1st October.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR MR. H. H. J. GOMPERTZ (PUISNE JUDGE).
CAPTAIN'S ALLEGED - WRONGFUL DISMISSAL.
The action was mentioned in which Captain W. Cooper, lately master of the s.8. Tak Hing, sued the Sze Yap S.S. Co., of Hongkong, for $858.33, for wrongful dismissal on September 15th, 1909, $750 being three months' wages in lieu of notice. Mr. Reader Harris (from the office of Messrs. Wilkinson and Grist) appeared for plaintiff, and Mr. P. S. Dixon (from the office of Mr. R. Harding) appeared for the defendant.
Mr. Harris applied for an order for pleadings. He said he could easily prove wrongful dismissal, but he did not know what allegations of miscon- duct defendants were going to make.
Mr. Dixon said if the case were adjourned for a week they might come to a settlement.
The hearing was fixed for Monday week.
ALLEGED BREACH OF AGREEMENT. E. Kennedy brought action against Mak Nam Woon, proprietor of the Belle View Hotel, to recover $1,000, $500 being for alleged breach of agreement whereby defendant agreed to employ plaintiff as manager, and the remaining $500 for damages caused to the plaintiff by the wilful act of defendant in preventing plaintiff from continuing his application for a licence under the Liquor Ordinance of 1908. Mr. Read- er Harris (of Messrs. Wilkinson and Grist) appeared for plaintiff, and Mr. X. d'Almada Castro for defendant.
Mr. d'Almada asked his Lordship to order pleadings or else full particulars of the second portion of the claim.
Mr. Harris said it was impossible to furnish particulars of the second portion, but he could call witnesses who would state that in their opinion plaintiff's character had suffered.
Mr. d'Almada said particulars of the first $500 would not satisfy him.
Mr. Harris argued that particulars of damages were not given in a libel action. His client was prevented from continuing his application for a licence, and several of his friends came to him and said they were sorry to see that his applica- tion had been refused by the Justices. One week they advertised his name in the newspaper and the next somebody's else.
CHINA OVERLAND TRADE REPORT.
Friday, October 8th.
A LAW OF THE MEDES AND PERSIANS. The case was called on in which the Mow Lee
firm sued the Kut Heung firm to recover $46.18 for goods sold and delivered.
Mr. A. Jackson (of Messrs. Johnson, Stokes and Master) appeared for the plaintiffs, the defendants being represented by Mr. M. Reader Harris (of Messrs. Wilkinson and Grist).
Mr. Jackson asked that the case should be taken third on Monday morning.
Mr. Harris-There won't be time. Mr. Jackson-Then I'd ask your Lordship to take it on Monday afternoon.
His Lordship-It is still vacation. The law of the Medes and Persians designs it so, but I am not particular.
The hearing was eventually fixed for next Saturday.
AN ABSENT DEFENDANT,
The Dairy Farm Co. brought action against Mrs. F. Pettingell to recover $91.51 for goods
sold and delivered.
Mr. H. L. Dennys, Jr., from the office of Messrs. Dennys and Bowley, appeared for the plaintiffs, and Mr. M. Reader Harris represented the tenant of defendant's house.
Mr. Harris informed His Lordship that the defendant had been in Shanghai for some time, and money had been paid by the present tenant, who did not wish the furniture distrained on.. He was quite willing to take an order for judgment with a stay of execution, but his client did not feel inclined to pay up the costs for substituted service. The tenant had paid up the amount of the claim and the c costs endorsed on the writ.
His Lordship-The order for substituted service stands.
*Mr. Harris-If the writ was taken out before
Mrs. Pettingell left?
His Lordship-I don't know anything about that, but there has been no application to set it
aside.
Mr. Harris-All I ask is for a stay of ex- ecution as to the balance of costs.
His Lordship-For how long? Mr. Harris - Mrs. Pettingell will be back in a month or two.
Mr. Dennys-We don't admit she is in Shanghai.
His Lordship-I don't remember why I made the order, but I must presume now that I made it properly. Is there an agreement of tenancy
Mr. Harris-I don't think the tenant has taken over the whole house as it stands.
Mr. Dennys-This debt was certainly known by the tenant on September 9th, and the defendant was seen in Hongkong on that day. and has been seen subsequently.
Mr. Harris-We only ask for a stay of ex- ecution. If plaintiffs write to Mrs. Pettingell
His Lordship ordered Mr. Harris to furnish Mr. d' Imada with such particulars as he could of the facts in regard to the second claim.
The hearing was then fixed for Thursday they will get the money. It is an unfortunate
week.
AN AMAH'S CLAIM.
Lai Juhn, an amah, sued Jessie Walker, of 9 Morrison Hill Gap, for $70.80, money lent on three different occasions.
When the case was called plaintiff produced a paper, which defendant said she would like to see. Plaintiff spoke to the defendant, who stated that the, amah wished her to speak Chinese.
Defendant said that the money which she claimed had already been paid, but that the plaintiff stole the paper produced. She also stole a five dollar bill for which the defendant dismissed her.
Plaintiff stated that she was formerly in the employ of the defendant as amah, and that her mistress borrowed money from her with which to pay the rent. She advanced other small amounts after that.
Defendant asserted that she had paid the money which she had borrowed and declared that she did not owe her a cash, not even for wages. The plaintiff stole a five dollar bill and, defendant had her locked up for an hour or two and finally called a policeman.
A witness for the defence stated that she was present when her mistress paid $3.80 to the plaintiff. Defendant admitted that she thought the amount borrowed was $38.
His Lordship adjourned the hearing for a week to permit of another witness being called.
thing when a person who owes money goes away, but I am quite sure the defendant is only absent on a holiday.
His Lordship-She has presumably heard about the claim. I will give you a week
Mr. Dennys ?-I cannot consent to any adjournment.
His Lordship-I will give judgment for the plaintiffs, and a stay of execution for a week.
Mr. Dennys The furniture may be removed by that time.
Mr. Harris-It is not likely. The place is a boarding-house.
His Lordship-I don't know, anything about
that.
Mr. Harris-The tenant wouldn't pay up $104 out of her own pocket if she intended to remove the furniture. Will your Lordship grant me a stay of execution for a fortnight ?
His Lordship-I can't give you more than a week,
Mr. Harris Then I don't want a stay at all. I don't admit the claim on behalf of Mrs. Pettingell,
Mr. Manuk, assistant secretary of the Dairy Farm, gave evidence as to the amount being due and owing,
Mr. Dennys said there were a great many writs out against the defendant.
Mr. Harris--The money has been paid into Court, but not with an admission of liability.
His Lordship entered judgment for plaintiff with costs, the costs to be taxed and Mr. Harris to be given notice.
ENGINEER'S CERTIFICATE
SUSPENDED.
321
An inquiry into alleged charges of misconduct against R. H. Ferguson, third engineer on 8.8. Persia, was conducted at the Harbour Office on Oct. 8. The Court was constituted as follows: Lieut. Beckwith, Assistant Harbour Master, president; Lieut. Butterworth, H.M.S. Tamar;
Mr. Donald Macdonald, of Macdonald & Co., engineers; and Mr. William James Best, chief engineer s.s. Lightning. The inquiry was held at the instance of the Pacific Mail Co., for whom Mr. Gedge, of Messrs. Johnson, Stokes and Master, appeared to prosecute, Mr. S. Silverstone was also present. The President read the letter of complaint from the Pacific Mail S. S. Co., and also the warrant constituting the Court.
Mr. Gedge informed the Court that the Persia left Hongkong on 3rd September with the defendant as third engineer. A message was received two
from Waglan asking for engineers, and accordingly Mr. Macnider, superintendent of the Eng Hok Fong, S.S. Co., went out to the steamer with two engineers. When they got there Mr. Macnider was informed that the second engineer had died and was buried at sea and that the third engineer was so incapably drunk in his berth that he had to be brought before the master to sign off the articles. He was taken to the launch and brought back to Hongkong.
Eng Hok Fong Steamship Coy., who were Mr. S. S. Macnider, superintendent of the
charterers of the Persia from the Pacific Mail S.S. Co., said that on 3rd September a message was received from Waglan asking for two engineers. The engineers were secured and witness and the engineers left in a launch from Blake Pier for the Persia, which was anchored off Waglan. He was accom- panied by Mr. White, of the Pacific Mail, and two of the Chinese proprietors. On boarding the Persia he received a report from
the Captain that the second engineer had died of heat apoplexy and that the third engineer was drunk and incapable. Ferguson was brought from his cabin to the Captain's cabin, where he was signed off the articles. He was not only helplessly drunk, but he was exceedingly filthy. A little later he was put on board a launch and taken to Hongkong.
¡
The Captain's report stated that the third engineer had been so drunk that he could not be trusted in the engine-room.
Was he more sober on arrival in Hongkong? Well, he was less drunk.
Mr. H. L. White, bookkeeper in the Pacific Mail Steamship Co., said he accompanied Mr. Macnider on the occasion mentioned. Witness corroborated the testimony of Mr. Macnider as to what took place on board the Persia.
Defendant said that he held a first-class
certificate granted by the Board of Trade at Glasgow. He joined the Persia as fourth engineer on 13th August, but he signed articles as third on 1st September. He was sober on the day the steamer sailed. As the second engineer was sick he took his duty and at eight o'clock that night the chief engineer told him to go to sleep. Some time in the middle watch, about three o'clock in the morning, he was wakened and informed that the second engineer had died. He went on duty for several hours and then went up and had two drinks. It was that that upset him.
The President-You were overcome by the death of Mr. Scott? That and the fact that
was dead tired.
You took a couple of drinks ?—Yes. Couple of bottles?—No, I was dead tired and that knocked me over.
Defendant was questioned as to the length of time he had been in the East and as to the ap- pointments he held. He produced several credentials.
The President remarked that in his reference from the China Navigation Co. there was no reference as to his sobriety, which was an im- portant omission.
The finding of the Court was as follows: We find you, Robert Henry Ferguson, guilty of gross misconduct on September 2nd and 3rd on board s.s. Persia by being in a filthy state of intoxica- tion, and so as to be incapable of carrying out your duty, thereby causing serious delay and ex- pense to your owners, the ship having to an-
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