July 22,-1896.]
CHINA OVERLAND TRADE REPORT.
SUPREME COURT.
15th July. -
IN SUMMARY JURISDICTION.
of keeping their lives and property in security; thus the people tried to keep always an good terms with the robbers. This bad custom is still existing at the present time! This fact explains that the native insurgents in Hoonim at present are not people turned out of their homes, that the bands are not composed of BEFORE MR. T. SERCOMBE SMITH (ACTING | back part of these cocklöfts in ord good people, but that they are robbers who have been taking shelter in the Hoonim mountainous district for many years. The lenders of the native insurgents are a Chinese military officer and a hereditary robber chief.
This spring the few Japanese soldiers gar- risoned in this district were sent out for the purpose of clearing away the robbers, but the defence the latter were able to make by availing of the good conditions of their topogra- phical situation rendered this purpose ineffec- tive and a few soldiers were wounded in the en- terprise. If this enterprise had been pursued to a successful end, the forces being increased by sending reinforcements, we should not have the present trouble, but the enterprise was aban- doned rather prematurely. The robbers, think- ing we could not do anything more about them, and disregarding our forces, commenced to plunder through the villages around Hoonim. In the middle of the night of the 13th June they broke into a Japanese merchant's house, situated 360 feet away from our police station. After having robbed it they retired, firing
several shots.
PUISNE JUDGE.)
YEUNG SHIN KAM v. HON.*F. A. COOPER AND OTHERS.—~JUDGMENT.
Judgment was delivered in this action. The plaintiff, Young Shin Kam, claimed $82.32 damages from Hon. F. A. Cooper, Dr. J. M. Atkinson, Mr. H. B. H. Lethbridge, Dr. F. W. Clark, Mr. N. J. Ede, and Police Constable Rae.
Mr. J. Hastings (of Mr. V. H. Deacon's office) appeared for the plaintiff, and Mr. A. B. Johnson (Crown Solicitor) appeared for the defendants.
The Court found for the plaintiff on the issue of trespass or no trespass, and for the defendants on the issue of the amount of damages; the $60 paid into Court to go to plaintiff.
His Lordship, in giving judgment, said-On the 8th May last some officers from the Sani- tary Board proceeded to houses Nos. 80, 82, 84, 86, 88, and 90, Queen's Road East, for the purpose of inspecting the sanitary condition of these houses. In the course of their Great necessity was found by the garrison to dealing with the houses portions of the back suppress and clear them away from this part of the cocklofts at Nos. 80, 84, 86, 88, district. On the 14th July with this and 90 were pulled down. It appears that purpose a lieutenant commanding a small from each of these cocklofts on the ground company consisting of twenty soldiers floor three joists and the planking were pulled was despatched towards their haunt. Un- down. In the case of No. 82 the whole of the fortunately the expedition was again ineffective, cockloft was pulled down and the whole of the for near the mountain foot the soldiers were plauking was removed. In the case of the surrounded and attacked by the robbers, the other houses it appears that three joists lieutenant and six soldiers being killed, and in Nos. 80, 84, 86, and 88 were removed few escaped back. The commander of the together with the planking, and that in garrison asked for reinforcements from the the case of No. 90, the planking only was headquarters of the regiment, and more forces removed, the joists having since been dis were sent out. On the 21st June, these streng-covered on the cockloft. The plaintiff, in his thened forces advanced to recommence the attack, but nobody was found there. All the cottages were left quite empty, so they burnt all these cottages and returned. Meanwhile, on the 28th June, native rebels numbering about 300 attacked the Japanese gendarmes station, and successively they attacked Hoonim and Chip chip. This brought about the present condi- tions in mid-Formoes.
*
THE REBELLION IN KIANGSU. with reasonable notice, and that the officers
DEFEAT
OF
IMPERIAL TROOPS.
t ANOTHER RISING IN HUPEH.
[SPECIAL TELEGBAM TO THE “ DAILY PRESS.
SHANGHAI, 19th June. The rising is spreading at Chuchowfa, North Kiangan. The Magistrate of Peihsien has been captured by the rebels.
An alternative report is that the disturbance arises from a faction fight for land occupation between Shantung and Kiangsu men.
|
petition, alleged that trespass. had been com. mitted and claimed damages to the extent of 882.32. Defendants, in their answer, denied and justified the trespass and also paid the sum of 860 into Court. The issues therefore appeared to be two, that is, (1) whether there was a trespass or not, and (2) if there was a trespass, what was the damage done? I find that the original entry of the officers of the Sanitary Board was lawful, that they entered
who made the visitation were authorised in writing according to by-law 22 of Or dinance 15 of 1894. Then the question arises, did they do anything after their original entry which would make them trespassers from the beginning? Now they did two things. They pulled down the part of the cocklofts, namely, the joists and planking in five out of the six houses, and in the other house, No. 82, they pulled down the whole of the cockloft. I think that for the purposes of this suit I need, not decide whether the pulling down of the back part of the cocklofts for the purpose of securing ventilation was such a thorough cleansing or disinfecting as was contemplated by by-law 22. If I decide the other point, as to whether the removal was ViceroyWrongful or lawful, I shall practically decide the issues between the parties. With regard, however, to the removing of the back portion of the cocklofts, or rather I should say the taking down of the back porticus of the cocklofts-the joists and planks-I wish to observe that steps taken to thoroughly cleanse and disinfect must naturally vary according to the nature of the disease to be combatted, according to the material or pre- mises to be cleansed or disinfected, and accord- ing to the degree of dirt or insanitation existing. I was very properly urged to give to the words "cleanse" and "disinfect" their natural meaning. Upon turning to Webster's Dictionary and looking at the definition of the word "cleanse I find the follow ing. To purify; to make clean; to remove filth, or foul matter of any kind, or by any process whatever, as by washing, rubbing, scouring, scraping, purging, ventilation, &c. for example, to cleanse the hands or face; to cleanse a garment; to cleanse the bowels; to
Another rising is reported to have taken place in Hanchow prefecture, Hupeh. The granaries have been looted and the insurgents have defeated the military police. The Chang Chih-tung is sending troops.
The American mail brings news of the death of Captain Lefavour, who was for many ears in command of one of the Hongkong, Canton and Macao Steamboat Company's steamers. Captain Lefavour left Hongkong for a trip to America after a severe illness, for which he was treated in the Government Civil Hospital: The San Francisco Chronicle of the 20th June says -- Captain G. B. Lefavour, a former resident of this city, but of recent years in command of a steamer plying between Can- ton and Hongkong, died on the east-bound overland train shortly before it reached Ogden yesterday morning, as the result of an apoplectic seisure. The deceased, who was a native of Salem, Mass., 55 years of age, arrived here on the steamer Peru from the Orient, en route to his old home, for which place he left this city on Tuesday evening
66
=
%
the obtain
cleanse an infected house." Therefore, without actually deciding which I would not care to do unless I had further scientific evidence upon the matter, and it not being necessary for the pur- poses of this case to decide that point the question of whether the taking down
ventilation was an act which would constitute the officers of the Board trespassers ab initio, I am of opinion that the removal of any por- tion of the cocklofis taken down was certainly not within the powers of the Board, and that constitutes a misfeasance which converts the legal entry, the orginal lawful entry of the officers of the Sanitary Board, into trespass, ab initio. I can see nothing in by-law 22 to justify any such removal from off the premises of the joists and planking taken down as was done in this case. If I turn to by-law 23 I find that by that by-law power is given to the Sanitary Board, under certain con- ditions and with respect to certain articles, to remove in covered vehicles with such precautions and in such manner as the Board shall from time to time direct, those things which are to be thoroughly disinfected, and which are to be returned to the owner or owners thereof. Now, the fact that in by-law 23 you have special provisions made for the removal of certain specified articles-all articles of clothing or bedding and all articles what- soever-by the by, that word "whatsoever" seems to largely extend the operation of the section of Ordinance 15 of 1894 under which this by-law is made, viz., that all articles of clothing or bedding or all other articles whatsoever which have been in contact with persons or articles in any way affected by such diseases shall be removed from those premises goes to negative the existence of any such power under by-law 22. In by-law 24 there is the power- to destroy any bedding, clothing, furniture, or any other article which cannot be dis- infected or which ought, for any other sanitary reason, to be destroyed; but that can only be done under a certificate in writing of a duly autho-. rised officer of the Sanitary Board or of a legally qualified and registered medical practitioner. Therefore, not only is there nothing in by-law 22 to justify the removal of things taking down, but by-laws 23 and 24 point in fact in an. op- posite direction. By-law 23 says they may be removed under certain conditions, but they must be returned. No return took place in this case. Now I come to the question of damages. On that point I am of opinion that the estimates and
measurements furnished by the defendant are the
correct estimates and measurements. With regard to this portion of the case, I find that the best China fir was not used in these cocklofts; I find that all the joists in No. 82 were, on the second day of the trial, on the premises; I find that no joists were removed from No. 90; and I find that the extra portions in 86 and 88, which had been removed, or, at any rate, which were absent, had been removed by the officers of the Sanitary Board. This, of course, reduces the damages to a figure below the amount paid into Court, so I have not taken the trouble to calculate the exnot amount of damages upon the basis of fact which I have just stated the damages which have been incurred by the plaintiff. In the result the finding is for the plaintiff on the issue, trespass of no trespass, and the finding is for the defendants on the issue of the amount of damages. Now, the question is, what judgment should be entered upon these findings. After consideration of section 8 of Ordinance 5 of 1856 and the Common Law Procedure Aot of 1852, in so far as the sections of that Act govern the practice, and after considering the general rules on the subject of payments into Court and the effect of section 35 in the Code of Civil Procedure, and after perusing the judgment in Goutard v. Carr, Law Reports 18, Q B.D., note page 598, Berdan Greenwood, Law Reporta 3, Exchequer 252, and Wheeler Telephone Company Law Reports, 18 Q.B 597, I am of opinion that the anomalous I cannot call them any
the anomalous rules kong in regard to p is that my judgut mus (1) plaintiff is absolutely entitled
the into Court; (2) That shall be for the defenda
United
Court
aid
general costs