November 21, 1895.]
that defendants should pay the tonnage dues at Hoihow, and it has been stated and established that these tonnage dues are known to shipping people under the name of "grand chop," and that it was the plaintiffs intention that Hopkins, Cumming and Co. were to pay the grand chop." On the other hand it is suggested by Mr Hopkins that he had no intention to pay the grand chop," that
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all he intended or meant
says
to
pay Was
case
CHINA OVERLAND TRADE REPORT.
*
for the passenger licence"-the plaintiffs' secretary told him that it was not right, and he must substitute the words "grand chop," and he accordingly did so. The next morning the parties all met at the lawyer's office, and then it is that Mr. Hopkins suggests that the false representation which he relies upon was made. He noticed the words passenger licence altered and he asked the secretary about it, and the secretary told him it made no the passenger licence. I have got to say
difference whatever, and therefore he under- whether he was made to sign the agreement, stood that what he really had to pay was the by which it was stated that he was to pay for passenger licence and nothing else. Now it is the "grand chop," by the false and fraudulent one step in this case that it is established to my misrepresentations of the plaintiffs through their satisfaction that the plaintiffs' secretary really agents. I have got to judge that questiou from meant to get the "grand chop" paid by the the evidence, from the agreement itself, and agents for the passengers. He really thought from the surrounding probabilities. I wish that it was necessary, and I come to that conclusion questions involving fraud were submitted to a partly from the man's own statement and partly jury; I think that is the proper tribunal for from what he has said about the profits of the questions of this sort, but of course it was not vessel when otherwise engaged, I need not go until we came into court on the present occasion into the details of the case, as a good deal has to that we had the means of knowing whether be discounted, but I do place some reliance there was a charge of fraud or hot, and the upon what he says, and also upon the statement charge has been allowed to be discussed under of Mr. Rogge, who had actually advised the an amendment permitted by the court. If the plaintiffs' secretary that this would not be a plaintiffs fraudulently substituted "grand chop" profitable transaction for him unless he made for the expression
and the agents for the passengers pay the passenger licence
grand induced the defendanta to sign the agree| chop." Of course he might have tried to make ment by representing, that the alteration Hopkins pay it in an indirect way, and made по difference, then the defendants thought he would be more likely to succeed established this branch of their
by indirect means, by getting him to sign the what But the burden of proof lies upon the defend- document without exactly knowing ants, and I have to decide whether there was he did. But it is one step that I such fraudulent misrepresentation on the part am perfectly satisfied that the plaintiffs' of the plaintiffs. Now, it is quite clear that, secretary was advised by Mr. Rogge that if Mr. Hopkins signed this agreement knowing Hopkins, Cumming and Co. should pay the that he had to pay the "grand chop" he could "grand chop." Well, then, I look at the term not look to anything but a loss on the transac- in the clause of the agreement itself. A tion, that is to say, loss of profits which he passenger licence is given for one trip, and for says and I have no reason to doubt-no reason one trip only. We have it in evidence that the from the statement itself to doubt that what he tonnage dues, under the name of "grand chop," is correct as to what he was to receive from when paid are good for a period of some the coolie hongs; but it is clear that, however months. There is therefore that difference many passengers he could carry in this ship, between "grand chop" and "passenger licence." if he had to pay the "grand chop he Now clause 7 reads, as Mr Ho Wyson drew it, could not expect a profit out of the trans- in the following way-"The firm will at action, and that would certainly tend, their own expense pay all fees necessary for the in itself, and without explanation, to raise passenger licence, and will not claim any com- the presumption that he could not have intended pensation for the unexpired residue of the term by his agreement to pay the " grand chop." of the said licence." Now that part of not claim But then there is the suggested explanation | the clause, that they would made that he had already made arrangements compensation from the company for carrying these coolies. He had to get a unexpired residue of the licence, would not steamer for them, and for anything I know if apply to a passenger licence at all; it can have he had no steamer at all his loss would have been
no possible application because there would be still greater than it would have been if he had no unexpired residue of a passenger licence, a steamer and had to pay the "grand chop; which is given for only one voyage. On the and therefore, for anything I can see in the other hand it would apply to grand chop" case, although there was necessarily a loss in because grand chop is given for a long the transaction, it might have been the best period. Then again passenger licence is sepa- thing that Mr. Hopkins could have done under rately provided for in section nine of the agree. the circumstances. I say "might have been ; * ment, which reads. The firm will at their I do not know exactly how far that explanation own expense apply for and obtain the necessary could have been borne out by the facts, but permission from the European and Chinese still, to my mind, it might suffice to get over authorities at Hoihow for the embarkation and the presumption that would otherwise arise departure of the Chinese passengers." Well, of from the necessary loss which the transaction
course, the "necessary permission of the itself shows, Now it appears to me that the European authorities and the Chinese authori. plaintiffs' secretary gave to Ho Tim a document ties "necessarily included the passenger licence, which is a memorandum in Chinese of the terms and I am surprised that in face of this section which the plaintiffs wished to exact for the 9 of the agreement Mr. Ho Wyson could pos- in employment of their steamer, and this document sibly have inserted "passenger licence was passed to Mr. Ho Wyson, who was instructed clause 7, because it seems to provide for the by Ho Tim to prepare an English agreement on same thing twice over. can only assume that behalf, as Mr. Ho Wyson says, of both parties he was not engaged so much upon the meaning concerned. There had been some conversa- of the agreement as upon the meaning of each tion between Ho Tim and Mr. Hopkins, and word. And there is a subsequent section, too, Ho Tim was the first person who which was made to apply to passenger licenco Mr. Ho Wyson at all. Now Mr. Ho Wyson amongst other things. Now I come to Mr. has given his explanation of how, in section 7 Hopkins's probable state of mind when he saw of the agreement, the term "passenger licence this alteration in section 7. I think he must came to be written in the original draft. He have known that passenger licence was provided says he knew that a passenger licence was for in section 9, and I think that the in- necessary; he knew that this expression "shun troduction of the kaa kuin," which is rendered as "grand chop," meant ship's head money," but he did not know anything about tonnage does, and he says it was his own assumption that it must have reference to passenger licence, and could not mean anything else; therefore be put it in. He put it in and afterwards the plaintiffs' secretary came to see him and he read out the agreement translating it into Chinese for the secretary's, information. When he came to the expression passenger licence" in section 7-"The firm will at their own expense pay all fees necessary
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think it is extremely unlikely that Hopkins, Cumming and Co., through Mr. Hopkins, would have signed the agreement under these circumstances, having his attention arrested as it must have been by this alteration, if he had not known what "grand chop" meant. I think the evidence shows clearly, at least satisfactorily to my mind, that Mr. Hopkins in signing this agreement by which he under took to pay the "grand chop" must have understood that he was signing for something else than fhe passenger licence, and therefore I cannot accept his statement that he was told and understood from the agent of the plain- tiffs that "grand chop" meant nothing else than "passenger licence." He produced letter which of course will bear out his sug- gestion of fraud if I can accept his account with respect to the delivery of the letter. He says it was handed to him after the ship got to sea, and it contained this request, "Will you kindly pay grand chop to the Customs House for our steamship Propontis when she arrives at Of course the Hoihow, as per agreement." suggestion is that this was handed to him at a time when it was impossible for him to demand any explanation from the agent
the of plaintiffs, namely, after he had got out to sea. Although it is not neces- sary to specifically decide every point which arises in the evidence, I may say that I am satisfied that Mr. Hopkins did receive this letter before the steamer left and before the plaintiffs' agent came on board on the morning of the departure. Therefor, my conclusion is that Hopkins in signing this agreement knew he had to pay the "grand chop," and I believe he knew approximately what that would amount to. I think there was no fraudulent mis- of the plaintiffs' statement on the part secretary by which he was misled and therefore that branch of the set-off having failed, both branches of the setoff have failed, and judg ment must be for the plaintiffs for $1,225 with costs.
expression such 28 'grand chop" instead of "passenger licence must have arrested his very close attention, and was one about which he would require a satis factory explanation if it is true, as he suggests, that he did not expect to find it in the agree ment. Now he says he was told it meant the same thing as passenger licence. It was not only he who was there, but his partner; who goes by the name of Cumming, was there as well, and he at any rate, whatever Ho Tim's interest in the matter may have been, had an interest identical to that of Hopkins, and I
Mr. Robinson-The judgment will be against Hopkins, Cumming and Co., my Lord.
His Lordship Yes, you are entitled to judg ment against those who do not appear, and it will be judgment against Hopkins, Cumming and Co.
18th November.
CRIMINAL SESSIONS.
BEFORE SIR FIELDING CLARKE (CHIEF JUSTICE).
THE MURDER CASE. Leung Kau and Chan Ho, boatman and boat-woman respectively. were indicted for feloniously, wilfully, and with malice afore- and murdering Johann thought killing Gundersen, on the 6th October, 1895.
Hon, W. M. Goodman (Attorney-General) prosecuted on behalf of the Crown, instructed by Mr Master, Acting Crown Solicitor. The prisoners, who pleaded not guilty, were defended by Hon. Ho Kai (instructed by Mr Grist).
A special jury was empannelled consisting of the following:-Messrs. W. R. Loxley, D. B. Sassoon, A. F. Smith, J. Grant Smith, A. G. Stokes, R. Shewan, and E. Burnie.`
The Attorney-General, in opening the case, Johann Gundersen fully detailed the facts. and Auguste Johannsen (who would be called as a witness) came to Hongkong from Shields in September, and they went to the Sailors' Home, Some days before the 6th October they went on board the American three-masted ship George F. Manson. On the 6th they came ashore, and spent the day in a way which was only too com- mon amongst some of these men. At 2:30 in the evening they went into a brothel in Stanley Street, and after coming out they parted company, and Gundersen went to one or two public-houses, one of which was The Man at the Wheel. Just before leaving he told the barman that he was going on board the He went along Queen's George F. Manson. Road with a friend who was staying at the Sailors' Horia. Gurdersen was the worse for drink, and at the corner of Queen Street he
was going told his friend that he was
the sampan to go board. It was suggested part of the prosecution that he carried out his