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jection was offered, and on the 18th inst. Mr. Kahu went to the plaintiffs' office and wished to take delivery of the beer. He should have told his Lordship that the price was fixed ex godown. Mr. Kahn entered the plaintiffs' office with a shipping order and wanted the plaintiffs to ship the beer. The plain tiffs said it was not their practice to do this, and that they would prefer that the defendant would take delivery ex-godown. Sub. sequently the defendant sent his head ship coolie to the plaintiffs' godown at Wanchai on the morning of the 18th inst., and there the plaintiff's godown man pointed out the beer, saying, "There is the beer, you can take it with you." The defendant's assistant had engaged coolies and a cargo boat. He took delivery of the beer. Eighty cases were re- moved. The defendant's assistant refused to take the remaining 20 on the ground that the cases
were not in good condition. Subsequently the defendant complained that the goods of which he had taken delivery were also in bad condition. The plaintiffs re- fused to take the cases back and the defendant refused to pay him the money. Hence the action.
Mr. Marten, in giving evidence as to the sale of the beer, said that in the first instance nothing was said about shipping it to Shanghai. Neither was anything said as to the quality of the beer. Kahn came to their office between 10 and 11 on the morning of the 15th, and said, "I wish to take delivery to- day; will you ship them for us?" He was told that the price was ex-godown and that the plaintiffs did not ship for their buyers. He sent Mr. Kahn to the godown with his head coolie to take delivery of the goods, and a short time afterwards his head coolie made a report to him. The following morning he re- ceived a letter from Mr. Girault asking for permission to return the goods. They, however, refused to receive them. The cases in question were marketable. The cases which the defen- dant had refused to take had been sold since at $6.50 a case. This was the cheapest beer in Hongkong.
In reply to Mr. Beatton, the witness said thore was no haggling about the price. Before ac- cepting it Mr. Kahn did not say he would first have to see Mr. Girault. He did not tell Mr. Kahn to take a sample bottle of the beer, as Mr. Girault had had sample bottles already. They had been selling this beer at different prices to Chiness-at from $6.50 to $675 per case. It depended on the quantity taken and the state of the market. A few of the 80 cases in question might have been shipped to Formosa and returned. They had never had beer returned by the Tai Sing firm.
Mr. Schumana, an assistant in the plaintiff's firm, also gave evidence as to the ordering of the beer on the 16th October by Mr. Kahn. The latter offered $6.50 a case and this price was accepted, the goods to be delivered ex- godown. The beer included three different brands. Mr. Kahn was told this and raised no objection. He could not remember that on the 16th Mr. Kahn said the goods were wanted for export. He did not think Mr. Kahn did say this. They did not give Mr. Kahn a sample of the beer, because he said he had samples of the beef in his office which he had had from the plaintiffs. On the morning of the 18th Mr. Kahn came again with a shipping order and asked them to ship the goods. but they refused to do so. The following day when on the way to the godown he met Mr. Kahn. They spoke about the 20 cases which the head coolie of Girault's had refused to accept. Mr. Kahn said they were not in a good enough condition to be shipped, but that they could b3 ropaired and mile fit for shipment. The witness said they wars willing to repair the cases, and to sub stitate new ones for those which could not be repaired. Mr. Kahn agreed to this and did not make any complaint about the condition of the 80 cases. He asked him whether they were good enough to be shipped and he replied that they were. Mr. Kahn then asked him to come and see Mr. Girault and he did so.
Mr. Girault told him that he refused to accept any of the cases, as they were not in a good enough condition for ship. ment to Shanghai Mr. Girault told him several times that the quality of the beer was good enough for him. Subsequently he went
[November 3, 1900.
THE HONGKONG WEEKLY PŘESS AND
down to the godown at Wanchai, and he saw before mentioned, and the said embankment and the 80 cases in a cargo boat by the Praya wail.ses-wall and reclamation has been carried on With regard to the 20 cases which remained a ever since, and i‹ still being carried on, and the few required re-nailing and others exchanging. said Marine Lot No. 184 has been as the result He saw no signs of leakage,
of the said operations converted in fact into an Inland Lot, no longer abuts on the Praya of sea-road, and no longer has any direct access to the sea, but is separated therefrom by the said Praya, by a piece of reclaimed land, the pro perty of the Crown, of a width of 185 feet or thereabouts, and by a new Praya and sea-wall of the width of 75 feat, or thereabouts.
In reply to Mr. Brutton the witness said he looked at the cases in the cargo boat from shore. As far as he could say they were in a fit state for shipment. He did not see that any of thom were bound up with rattan. Mr. Girault said that some of the 8) cs3 were not in a fit condition for shipment to Saзaghai and that they all looked too old for salo.
The further hearing was adjourned until Friday.
OCTOBER 31ST.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR JOHN CARRING- TON, C.M.G. (Chief JusticE).
HOWARD AND STEPHENS V. the ATTORNEY-
GENERAL..
In this case Mr. Thomas Howard, merchant and Mr. M. J. D. Stephens, solicitor, were the plaintiffs and the Attorney-General (the Hon. W. Meigh Goodman, Q.C.) the defendant. It was an action with respect to an award made by General Black in his capacity as Governor with ragard to a Marine Lot belonging to the plaintiffs, the plaintiffs alleging that that award as given by General Black was contrary to the
evidenca.
Mr. J. J. Francis, Q.C. (instructed by Mr. Stephens) appeared for the plaintiffs, and the Attorney-General appeared in person.
Mr. Francis said the question before the Court came before the Court on the issue settled by his Lordship on the 23rd October, which ran as follows:-"Assuming all the facts stated in the petition to be true, and having regard tɔ the provisions of the Praya Reclamation Ordin- ance, 1889, has the Court jurisdiction to enquire into the proceedings connected with the award referred to in the petition and to set aside such award and declare it null and void ?" Mr. Francis then read the petition, from which we extract the following:-
"Daring the progress of the operations car. ried on by successive Governors of Hongkong under the said Praya Reclamation Ordinance, the plaintiffs access to the sea along the whole. front of their said Marino Lot was seriously impeded and diminished, and the plaintiffs suffered heavy losses in their business as godown keepers, and upon the completion thereof their said lot of land was seriously depreciated in value by being entirely shut out from all direct access to the sea and by being converted from a Marine Lot into an Inland Lot.
"The plaintiffs lost by the diminution of their business during the construction of the said reclamation a sum of $25,000, or thereabouts. and by the depreciation in value of their said Marine Lot by its conversion into an Inland Lot a sum of $90,000, or thereabouts. The said Marine Lot was before the date of com. mencement of the said Praya Reclamation Works of the value, without the buildinga thereon, of $5 per square foot, and with the buildings thereon of the value of $200,000, or thereabouts, at the least. The plaintiffs after the completion of the said Reclamation Works in the immediate front of their said Lot were unable to obtain more than the sum of $110,000 for their said land and buildings, and this depreciation was wholly and solely attributable to the conversion of the said lot from a Marine Lot to an Inland Lot.
In and by the said Praya Reclamation Ordinance it is provided that it shall be the daty of the Governor of the colony for the time being to investigate and enquire into all cases of loss or damage sustained through the opera- tion of the said Praya Reclamation Ordinanca by lessees of Marins Lots within the line of the The plaintiffs were during the happening of intended reclamation, who shall not accept in the events hereinafter related and until quite the manner and within the time provided in the recently the registered crown lessees and the said Ordinance the benefits and liabilitias con-> owners and occupiers as tenants in common in ferred and imposed by the said Ordinance, and equal undivided moieties of Marine Lot No. 184, to award to them such sum of money or such situate in Victoria aforesaid, and of the godowes Crown lease of new land as he in his absolute and stores thereon erected, and they there carried discretion may think sufficient, as and by way on the business of godown keepers, landing and of compensation for any injuries they may have storing in the said godowns at a rent all des-respectively sustained by the said operations. criptions of goods, wares, and merchandize. The plaintiffs' said Marine Lot was within the The said Marine Lot is situated in the West-line of the said intended operations, and the ern District of Victoria, and from the date of the Crown lease thereof-that is to say, from the 13th day of September, 1884-to on or about the month of April, 1898, abatted on the north side for a length of 100 feet on the Praya or sea-road running along the harbour front of the city of Victoria, and the said lot and the go- downs thereon were only separated from the sea in the harbour of Hongkong by the said Praya or sea-road, which was of the width of 50 feet or thereabouts.
..
plaintiffs as leases of the said lot did not signify their acceptance in time and manner aforesaid or at all of the benefits or liabilities conferred and imposed by the said Ordinance. but on the contrary dissented therefrom and refused to enter into any agreement with the Government, in respect thereof.
The plaintiffs called upon and required the Governor of Hongkong for the time being to investigate and enquire into their loss and damage through the operations of the said "Until the happening of the events next Praya Reclamation Ordinance, and His hereinafter narrated, the sea in the harbour of Excellency Major General Black, then adminis- Hongkong came at all times of the tide to the tering the Government of the Colony, on foot of the sea-wall bounding the said Praya, or about the 22nd day of November. and the plaintiffs were able at all times of the 1893. professed to award to the plaintiffs day and night and in all states of the tide to the sum of $15,000 by way of compensation bring cargo boats to the said sea-wall and load for their losses and injuries by the said works, and unload into and from the said cargo boats but the said General Black did not make any and directly on to or from the said Praya all proper enquiry and inverization into the descriptions of goods, wares, or merchandise, plaintiffs' claim or into their losses and damages stored or intended t› be stored in their said in the premise3. He did not hear the plaintiffs godown, and the said goods, wares, and mer-by themselves or by their counsel in support of chandize so landed and shipped to convey their claim. He gave them no opportunity of easily, quickly and cheaply into and from their į calling evidence to prove their losses and dam- said godowns.
AZ87. He illegally and improperly received In or about the year 1891 the faen Gover-evidence put in by the Government of the nor of Hongkong, ünder the authority of an colony in opposition of the plaintiffs' claim Ordinance entitled the Praya Reclamation without giving the plaintiffs any opportunity Ordinance, 1839 (being Ordinance 16 of 1889), whatever of knowing what that evidence commenced to construct au embankment along was or contesting it. Ha took evidence the harbour front of the city of Victoria, from a in the absence of and behind the backs of point on the sea shore to the west of the the plaintiffs, and finally his so-called award plaintiffs' Marine, Lot No. 184 to a point on the was or not in accordance with such evidence shore to the eastward thereof, and to constrast as was put before him. Hi wholly disregarded `a sex-wall and to reclaim and fill in the foreshore it and awarded to the plaintiff a much less sum than they appeared to be entitled to on
and bed of the harbour between the Praya herein-
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