August 27, 1896.] /
to any goods whatever of the plaintiffs stored within the premises referred to in the petition, Neither the defendants nor their servants nor agents caused any annoyance or loss whatever to the plaintiffs, nor did they in any manner interfere with or prevent the carrying on of the plaintiffs' business upon the said premises.
5.The defendants deny that the plaintiffs have suffered any damage whatever in respect of the causes of action set out in the petition, except the sum of $100 referred to in paragraph
9 hereof.
Dated the 8th day of August, 1896.
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Mr. Hastings then explained that on the 9th May the defendants entered the top floor of No. 90 and pulled down a cockloft. But it was in No. 88, Bonham Strand that the greatest amount of damage was caused. In that house mezzanine floors were erected by the plaintiffs for the purpose of storing business goods. There was one cockloft on the ground floor, two on the first floor, and two and a shelf on the second floor. On the 9th May these stores were filled with valuable goods. On the 8th May a police sergeant went to the plaintiffs and gave them notice that on the following day their premises would be cleaned. Later on Inspector Reidie went to the plaintiffs' shop and inspected the premises. He said that the cocklofts on the ground
CHINA OVERLAND TRADE REPORT.
Danby, and on the morning of the 9th May he visited the premises about 8.30 a.m. and saw the condition of the place. On his return he reported the matter to Mr. McCallum and they then went with Mr. Ede and inspected the premises, but at that time the damage had been done. The Sanitary Board was a properly con- stituted authority possessing legislative powers, but the Board had no immunity from the ordinary laws of the colony. They had to act within their powers, and if they acted unlaw fully they were liable in damages in the same manner as other persons. In the matter of cocklofts the Board appeared to have entirely misapprehended their powers. They had entered these houses and many other houses in the colony and pulled down cocklofts therein. One would have thought that before doing so they would have taken care to see if they were justified. As a matter of fact they had not the least justi- fication for pulling down or interfering with cocklofts. The proper course was provided by law. By-law 22, made by the Board themselves under section 13 of Ordinance 15 of 1894, gave the Board power to cleanse and disinfect pre- mises. It did not require the least argument to show that the words "cleanse and disinfect did not include or convey any power to pull down portions of premises and take them away or destroy them. Indeed that point had been held in another case which was lately heard in
155
Lai Yuen, another partner in the firm, and other witnesses also gave evidence of the value of the oocklofts and ginseng
Mr. J. M. Armstrong, auctioneer, spoke to selling the ginseng for $394.37.
Mr. W. Danby, architect, said that on the 8th May last, about 5 p.m., the plaintiffs met him in Queen's Road and told him the cleans ing gang were going to their premises on the following morning. Witness went to the place at 8.30 next morning, when there was
considerable excitement, He saw a orowd of coolies and a number of soldiers there, and goods were piled up outside. Coolies were then cleaning the verandah and the, water fell over the verandah on to the goods. Some water fell on witness and he had to send home for a new suit of clothes; therefore he knew the water was very dirty. Bags of nutmegs were being dragged down the steps, somebody was shouting
t<
Keep clear below" and witness had to tell them to stop, so that he could get upstairs. He saw the cocklofts being removed. He should not call the wood dirty, nor would he call it clean; it was dusty. He felt very much annoyed at the high- handed manner in which the work was being done and afterwards reported the matter to Mr.. Ede, and said that the persons concerned were Chinese merchants and not coolies. Witness and Mr. Ede afterwards saw Mr. McCallum:
and first floors must come down and that the Court. It was then decided that the words & Co., who has had considerable experiences
Mr. F. Jorge, salesman for Messrs. Shewan
in ginseng transactions, spoke to the value of the ginseng in the box which fell down from a shelf in 88, Bonham Strand.
In answer to the court witness said that the ginseng was valued at $1,400 on the 8th May. If it had been sold three or four days after it was injured it would have fetched about 50 per cent. more than $394. Witness did not see the ginseng until the 27th July, when it was damp and dirty.
cooklofts on the second floor must be out away for a distance of about three feet on one side. He ordered the plaintiffs to do this work before the following morning or else it would be done for them. These orders were entirely illegal and he had no power to give them, but the plaintiffs did not know that and they engaged a carpenter to assist in pulling down the cocklefts." On the next morning, the 9th May, the carpenter commenced work, but about 7:30 or 8 o'clock a gang of men, consist- ing of an inspector of nuisances, some policemen, some soldiers, and a large number of coolies, went to the house and commenced demolish ing the cooklofts. At that time the goods had been removed from the cocklofts of the ground and first floors, but not from the second floor, because it was not known that they would be pulled down, but only a por- tion cut away. The goods were piled in the street and on the side walk. After cutting off a portion of the cockloft on the second floor the men went away for a time. It then occurred to somebody that enough had not been done and the men returned and said that another piece must be cut off. The goods were piled on one side and another piece was taken off, amounting altogether to about one half of the whole lot. The men went away for a meal and on returning somebody came to the conclusion that the remainder must be pulled down. No time was given to remove the goods, but the floors were pulled up and iron bars removed, the consequence being that valuable goods, in- cluding Chinese ginseng and other drugs, fell down amongst the dirt and dust and were trampled underfoot by coolies. Some of the goods in the street were under a large verandah and as the coolies from the Sanitary Board commenced to cleanse the place a large quan- tity of water was allowed to run off the verandah on to these goods stacked below, causing con- siderable damage. That was bad enough, but something worse occurred afterwards. On the ground floor there were some extremely valuable good", including ginseng. Finseng was a root hich grow in Korea and was very valuable, a piece about six inches in length being worth om $60 to $70. Some ginseng was stored in tin boxes on the shelves and it struck some of these Sanitary Board officials, for what reason was not known, that the top of the shelves ought to come off. One of the constables thereupon mounted On a box. behind the shelves and with an iron bar in his hand beat the top of the shelves in order to take it off. In doing this he shook the boxes and one of them fell down to the floor, a distance of about twelve feet. When ginseng was dry it was very brittle, and that in the box was in this condition, the consequence being that it was seriously damaged. Before the box dropped the contents were worth Tls. 1,000, but The witness was cross-examined by Mr. John considerably lessened the value.son as to the value of the ginseng and he ad When the plaintiffs heard that their premises hered to the amount of damages mentioned in
going to
ited they engaged Mr. the opening statement.
"cleanse and disinfect" did not include the power to pull down and take away any materials. Counsel had not gone into the question of whether the cocklofts were legal or illegal. He did not know nor did he care if they were illegal; their illegality did not give the Board power to interfere with them. Under the Ordinance the Board were bound to apply to the Magistrate, get a decision on the matter, and have the cocklofts removed by his order. The defendants did not adopt that proper cause.
This completed the case for the plaintiffs. They took upon themselves the right of decid-
Mr. Johnson, in addressing the jury, said the ing a point which ought to have been decided defendants had only indirectly admitted the by the Magistrate; indeed they did more than that. They did not decide the point them-illegality of the entry. Although the law was selves, but allowed it to be decided by an ir- not strictly complied with, the entry was per- fectly bona fide and was necessary considering responsible constable who was on the spot the state of the neighbourhood and the town, In their answer the defendants had admitted and considering that the plague was raging. that their action was illegal. The law was
If application had been made to the Magistrate that if a man abused an authority given to
he (Counsel) ventured to submit that at least him to enter premises he became a trespasser two of the cocklofts would have been condemned. from the beginning and was liable for damages The fact that the entry was bona fide should done by him. The defendants had paid $100 certainly influence the jury when considering. into Court and therefore the action really the question of damages. The defendants had resolved itself into a question of assessment of damages. It was for the jury to say whether made careful valuations and the $100 paid into Court amply covered the amount of damage. the $100 paid into Court was sufficient to The sum would not put back the cockloft in the compensate the plaintiffs for the damages they original position, but in a position which had suffered. The damages were divided into would make the plaintiffs better off than they three items, the principal one being damage to goods chiefly consisting of ginseng, the second item was damage to cocklofts, and the third was damage for trespass and interference with business. The goods had been inspected by a gentleman in the employment of a
Dr. Clark, Medical Officer of Health, said that well-known European firm in the colony the district embracing Bonham Strand was de-5. and he would say what was the value of theclared an infected area on the 27th February goods in a sound state. They had been sold last. In his opinion it was necessary to remov by auction and evidence would be called as to what they fetched. The jury were not bound the plaintiffs' cocklofts, as they were removed, down, in assessing dainages, by the actual in order to properly cleanse the premises. →→→ amount of the damage suffered. In cases of entering another man's house the jury had power to give damages beyond the actual value of the damage suffered and sufficient to com pensate for the trouble, inconvenience, and loss caused by the defendants. The plaintis claimed $1,000 damages, that amount being the utmost in the jurisdiction of the Court, but the damage to the goods amounted to $1,024 and the damage to the cooklofts $143, so if the jury came to the conclusion' that plaintiffs proved their damages on these two points it would not be necessary to consider the damages caused through the tres-portunity fo pass.
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Li Yuen, one of the partners in the Wing Li Yuen firm, bore out the opening statement as to the action of the Sanitary Board officials and the amount of the damage done. Since the cocklofts were removed their trade had declined, as there was not sufficient space to keep the ne- cessary quantity of goods.
were at first. In regard to the other items of damage counsel proposed calling witnesses to show that the defendante did not destroy the plaintiff's goods and it was not the Sanitary Board coolies who washed the verandah.
Cross-examined The inspector ordered the removal of the cocklofts. Witness knew that one of them was in a rotten and dangerous condition. In this case he did not consider that the proper course to take was to cleans and disinfect the cocklofts before takin away. The bulk of the wood was so dirty that it could not be cleansed at all As far as ho knew, no attempt was made to cleanse the cook lofts; they could not be cleansed without being. removed.
By the jury The
gang derved
Inspector Reidio last April to and to cleanse and were dirty Ho cooklofts to be goods expo
told
the
MA cleansed Work was not doi
had am
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