386.
Carried unanimously. The CHAIRMAN-I therefore declare these articles of association approved of by this moeting, and sign the copy I have here accordingly. I now propose That the new articles of association already approved by: this meeting and for tho parpose of identifi- cation subscribed by the Chairman thereof be
and the same are hereby approved and that such articles bo and they are hereby adopted as the articles of association of the Company to the exclusion of all existing articles or regulations thereof.“
Mr. MORRIS seconded. Carried.
The CHAIRMAN-That is all the business, gentlemen. and. I thank You for your atten- dance. A confirmatory meeting will be called after an interval of fourteen days.
SUPREME COURT.
12th November.
IN ORIGINAL JURISDICTION.
BEFORE SIR FIELDING CLARKE (CHIEF
JUSTICE.!
THE HEUNG SING STEAMBOAT COMPANY F.
HOPKINS. CUMMING, AND CO.
The plaintiffs claimed $1,225 balance of passage money due in respect of pussengers carried by them under an agreement with the
defendants.
Mr. E. Robinson (instru ted by Mr. Bowley) appeared for the plaintiffs and defendant Hopkins personally conducted his case, He sat
next his solicitor. Mr. Helmes.
His Lordship-The defendants are Hopkins, Cumming and Co. Who is the gentleman who appears in person and what is his name? Defendant Hopkins --Reginald George Hop.
kins.
His Lordship Do you carry on business as Hopkins, Cumming, and Co., or have you a partner?
Hopkins-I have a partner. His Lordship --Is he here? Hopkins-No.
His Lordship-Is he in the colony 7 Hopkins-I do not know; I have not seen him for some time. (Laughter.)
Mr. Robinson said that no appearance had been entered on behalf of the other partar. who had been served with a writ.
!
i
j
THE HONGKONG WEEKLY PRESS AND
His Lordship Then the burden of proof lies | on the defendant in regard to that.
Mr. Robinson, continuing, said the defendant further stated in his answer that at the time of signing the agreement the plaintiff company caused the words grand chop to be inserted in place of the words "passenger licence." and he was led to believe that the alteration was not material, whereas
say
His Lordship(to Hopkins) Do you mean to charge them with fraud. because you have no cause of action unless you do? You cannot that you were "led to believe." If they acted fraudulently by inserting something in the agreement which you were not aware of. then you have a cause of action. It is no cause of action to say that you believe.
Hopkins-It is a fraudulent statement, my
Lord.
His Lordship You wish to charge fraud? Then you will have to amend your answer. Unless there was fraudulent representation there is no cause of action; it is not sufficient to say you were “led to believe."
Hopkins then applied for leave to amend, and the application was granted.
Mr. Robinson The onus of proof is on the d fendant.
་
His Lordship —Yes.
Mr. Robinson said the plaintiffs case was that the extra number of persons on board were stowaways, and they were not passengers with. in the meaning of the agreement.
[November 21, 1895.
passengers on board. On the 20th July the Consul at Hoihow boarded the steamer and counted the passengers. I did not take any steps to identify the persons to whom I issued the tickets. The Consul gave orders that no more passengers were to get on board, and some persons who were going on board were stopped. I do not kuow whether they were my passengers. Before the Consul counted the passengers the captain had to identify them and the Chinese crew, and the Consul then. gave orders that no one should leave the ship, and no one left the ship after the Consul ordered the gangways to be closed with the exception of myself, à constable, and a Chinese watchman. I do not know of my own know- ledge that the Consul gave orders that no one was to leave the ship. To my knowledge the watchman found fourteen passengers who did not have tickets. I asked the Consul if I might issue tickets for these passengers, who wore set apart. He said "No; no tickets will be allowed to be issued on board the ship." The anchor was lowered by order of the Consul and the fourteen men were sent down to a boat, and he theu went with the captain into the saloon to count up the number of passengers that the Coukul had tallied. On reckoning up he found that the number was equal to 750 adults, I learnt afterwards that the fourteen passengers came on to the ship again.
llis Lordship-Then the number was practically right?
The following amendment was then made- Witness -Well, in tallying there is often a The plainti company cansed the words mistake as in the rush there is a probability of grand cloop" to be written in the place of the of missing one or two, so that there may have words passenger licence, and the defendantbeen more than the actual 759. company was led by the false and fraudulent representation of the plaintiffs to that the alteration was not material, whereas the passenger licence Was a small patter. and the 'grand chop' meant the payment of $871, which
=00
believe
the defendauts have
paid to the Chinese Customs at Hoihow for and on behalf of thy plaintiffs under protest, and the defendaut elniins to set off the sum of 8874.
His Lordship-It is very complacent of the plaintiffs. They would be entitled to judgment if they did not consent to these amendments, You have put in a statement of defence which does not disclose any defence at all, and you pleur a set off exceeding the claim against you. You must begin your esse
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Mr. Robinson asked whether Hopkins admitted that the words "grand chop meaut tonnage dues payable under the Treaty of Tientsin, Article 29.
[1
His Lordship -We cannot get on without the agreement.
Defendant said Mr. Hastings had it. His Lordship-Then we shall have to adjourn the case as you are not ready to go on. But I am not sure that I will adjourn the case. I will give you ten minutes to get the agreement.
Detendant- Mr. Hastings has it.
His Lordship --You had better try to get it. It is your business and not mine.
Defendant admitted the meaning of the words. In opening the case Mr. Robinson said that Reginald George Hopkins then entered the plaintiffs sought to recover $1.225 in respect of | box and said I entered into an agreement with a large number of passengers carried by thein the plaintiff company to carry passengers from under an agreement from Hoilow to Singapore. | Hoihow to Singapore, and I produce a copy of The defendant admitted certain facts and wished the agreeingut, but it is different from the to set up matters in the nature of counter-original. There is a clause in the agreement claim and set-off. He had not petitioned | which provides a penalty should the plaintif his Lordship, but the plaintiffs did not wish to company carry other passengers than those obstruct him in any way. Counsel then read shipped by us. the plaintiffs' petition. which stated that they agreed to carry by the Propontis from Hoihow to Singapore as many Chinese passengers as the steamer could lawfully carry, and who were placed on board by the defendants. The de- fendants agreed to pay for each Chinese pas- senger put on board by them the sum of 85, one half of the sum to be paid before the steamer left, and the balance within one month of the date of the departure from Hoihow. Ou or about 5th July last the defendants paid the sum of $2,500 under and in pursuance of the agree- ment. On the 4th July the Propontis sailed | from Hoihow for Singapore with 715 Chinese passengers on board. and they were carried safely to Singapore. Ou or about 29th August last there became due to the plaintiffs from the defendants the sum of $1.225, Ling the balance of passage money payable under the agree- cient. Defendants refused to pay this amount or any part thereof. In the answer to the peti- tion the defendant Hopkins admitted the facts, but said that on the voyage from Hoihow to Singapore the number of passengers carried was 774, being 29 in excess of the number ship- pod by him. Therefore under a special clause in the agreement, whereby the plaintiffs agreed to pay $20 per head for passengers not shipped by defendants, the sum of $580 became due to the defendants.
At this point Mr. Holmes came into court. and his Lordship said --Here is something that Mr. Holmes has in bis hands
Mr. Holmes-This is the agreement. I had to go to Mr. Deacon's office.
His Lordship-Well, why didn't you get it before? Never mind, go ou
His Lordship then read the following clause in the agreement:-"If the said steamship com- pany carry any passengers other than those shipped by the firm the steamboat company will pay to Hopkins. Cumming, and Co. the sum of $20 for every such other passenger carried."
Defendant-That is the clause I rely upon. At Hoihow I issued 750 passenger tickets, and handed then to a Chingman who accom- pauied the passengers to Singapore. Of the 750 tickets I found that 745 had been issued Some of these tickets were halves" for children, so that there were more than 745
L
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His Lordship-You think the tally is unreliable?
Witness-Yes,
Mr. Robinson said part of the ship' was bar- ricaded off and the passengers counted one by
one.
His Lordship The only step you took was to give the tickets to the hong and you took no other steps to ship passengers
Witness-No.
His Lordship And yon do not know what arrangements the people who were acting for
you made?
Witness-Except that they gare tickets to passengers, who went off to the ship in boats as they pleased. The harbour master said the ship could carry only 751 passengers.
His Lordship-And you say that some pas- sengers might have been missed?-
Witness-Yes.
His Lordship-If that is the case I hardly see how the plaintiffs are responsible for them; the plaintiff's did not carry them as passengers under those dircumstances. However, I will see about that.
Witness-The tickets are collected when the ship is at sea.
His Lordship-Did the captain take any part in the tally
Witness-No.
His Lordship-Nor any of the ship's officers? Witness-No, except to send the passengers aft and see that the holds were clear.
His Lordship-Who applied for the services of the Consul ?
Witness-I went to the Consul and applied to him in accordance with the Passenger Act. On arrival at Singapore the man I put in charge of the passengers went to the compradore of the plaintiff company and said there were twenty- nine passengers in excess.
His Lordship-That is not evidence; he may have told an untruth. Did you get any pay- ment directly or indirectly from the hong or from the agent of the hong or from any Chinese agent of the passengers for any passengers in
excess of the 750?
Witness No; I got paid only for the 750. 'I did not knot the meaning of the term grand chop" until I got to Hoihow.
His Lordship-Tell me something about the fraudulent representation. Who drew the agree ment?
Witness-Mr. Ho. Wyson.
His Lordship On whose behalf was he acting?
Witness-The agreement was taken to him by the plaintiff company.
His Lordship-Was a draft submitted to you? Witness. Yes.