November 24, 1900.]
information received, on the 9th Oct., about 4 p.m., Lance-Bergeant Landor went to a house in No. 11, Lan Yn Lane, together with two Chinese détectives. There he found a basket belonging to the defendant under the bed. In the basket was found a book, which had been identified as relating to the Triad Society.
Lance-Sergeant Landor said he wout to No. 11, Lau Ya Lane, in connection with another matter and he found there the basket produced. At first the defendant denied that the basket belonged to him but subsequently he said it did. The defendant produced a key and unlocked the basket and the book in question was found in- side. When searched at the Police Station the certificate produced was found in a puršo attached to the man's girdle.
By the Court He had gone to the house in question about another man. He had no in- formation at the time about the defendant. The defendant saw him take the book out of the basket. He said nothing about it, but when the certificate was taken out of his purse he said someone had left it with him. The defendant was a stonecutter. He did not know where he worked.
Taoi Yu Shang, who said he had made the Triad Society and its publications a special study, identified the book and certificate produced as relating to the Triad Society. The book contained particulars as to Triad Society ritual, and the certificate was a diploma of membership and a passport.
Un Kam Shing, sergeant interpreter at the Central Police Station, said that on the 9th October, at half past nine in the evening, he read the charge to the defendant and read over the printed caution to him-that he need not say anything unless he liked. The defendant made a statement which he took down in Chinese. The defendant signed it. Witness made a trans- lation of the statement, which was to the effect that a man had given him the book as security for 30 cents which he lent to him.
CHINA OVERLAND TRADE REPORT.
je Mr. Grist (Messrs Wilkinson and Grist) ap- peared for the plaintiff, and Mr, Reece for the defendants.
On the application of Mr. Reece, who had only just been instructed, the case was adjourn⚫ ed until Wednesday afternoon, the defendants to pay the costs of the day.
Wednesday, 21st November.
IN SUMMAry JurisdicTION
417
Then again the buyor rejected these goods, he says, because the sellers had delivered to him a quantity of goods less than they had contracted to sell, viz. 80 cases instead 100 cases. This defence was raised at the trial: whereas the ovidence was that the goods were rajected at the time because their containing cases were not in good order and not merchant- able, for Mr. E. Girault said, "I refused to take the goods because the cases were not in 'good order" and again "the cases of boer were not merchantable." If the sellers ton- dered delivery of all the 100 cases, obviously
BEFORE HIS HONOUR T. SERCOMBE SMITH the buyers had no right to reject them, as
(ACTING PUIsne Jubaɛ).
RADECKER AND COMPANY V. GIRAULT.
His Lordship gavo judgement in this case as follows:-
the goods were of merchantable quality and corresponded with the description by which they were sold. And while it is the duty of the seller to deliver the goods, it is the duty of the buyer to accept and pay for them. This is a suit brought by Messrs. Radecker Now delivery means voluntary transfor of and Company against Mr. G. Girault for the price possession from one person to another. The of 80 cases of boor, at 86.50 per case, sold and sellor's duty of delivery, in the absence of delivered. On the 16th October last, the plain any agreement to the contrary, is fulfillod when tiffs agreed, by word of mouth, to sell to defend he affords to the buyer reasonable facilities for ant 100 cases of Pilsener beer of three brands. taking possession of the goods at the agreed Those cases were a portion of a number of cases upon place of delivery. It was not, and could then lying in the sellers' godown at Wanchai. not be successfully contended by the buyer Delivery was to be taken in the next two or that the sellers in this case did not afford him three days. I find that the sellers were made such facilities. The buyer's head coolie went aware by the buyer at the time of the contract to the sellers' godown where the 100 cases were that the goods were to be shipped to Shanghai.placed at his disposal and where he had reason- It is agreed that the contract was for the saleable facilities for taking possession of all the of goods by description and not by sample. | 100 cases Thus the sellers performed their Where goods are sold and bought by description duty under the contract by delivering all the 100 the law implies two conditions, first, that the cases to the buyer, and the buyer was, under the goods shall correspond with the description and, circumstances, bound to accept, because all the next, that the goods, shall be of merchantable implied conditions attaching to a sale of goods quality. The first condition was complied with. by description had been fulfilled, the goods both for defendants' assistant, Mr. Kahn, said we auswering to their description and being of "got the goods we bargained for so far as the merchantable quality. Moreover, in the go brands were concerned." It was bear not down the buyer had a reasonable opportunity of cases which constituted the goods bargained for. examining the goods for the purpose of ascer- The second implied condition is that the goods taining whether they were in conformity with shall be of merchantable quality. Here again the contract. The buyer is not deemed to have it is the beer, and not the cases holding the accepted the goods until he has had this oppor bottles that hold the beer which must be of tunity: but, having had the opportunity and the merchantable quality. The quality of goods implied conditions having been fulfilled, he was includes their state or condition, not the state under the necessity of accepting, and it does not or condition of the packages in which they are matter whether he accepted or did not accept. contained: and the cases of Jones v. Just L.R. There being no right to reject the goods, the I 3 Q.B. at p. 205 and Randall v. Newsom L.R. question of acceptanco or nou-acceptance be- 2 Q.B.D. at p. 109 show that the term mer- comes immaterial. In this view of the case, chantable is synonymous with the torm the Court is relieved from the necessity of saleable. Was then this beer in a saleable examining the evidence as to what occurred state or condition? The evidence shows that it in the godown after the first few minutes was: for subsequently to the 18th October 20 with a view to determining whether there was cases, deposed by the defendant's witness to ba or was not an acceptance by the buyer in per- in a worse condition (80 far as the cases them formance of the contract. If it be necessary to selves were concerned) than the 80 cases the sub- decide whether the goods were or were not in a ject of this suit, were sold at the same price per deliverable state, I hold that they were. The case as the 80 cases. And Mr. Marten informed contract was for the sale of beer in cases : no- the Court that cases of beer forming a portion thing was expressed in the contract and nothing of the consignments that included the 80 cases is implied in law as to the condition of the cases. in dispute, had been sold by him within a few The state in which the beer was delivered was months prior to the 16th October. No evidence in cases, that was the state in which the buyer of any weight has been offered to prove that the was, under the contract, bound to take delivery beer was of bad quality. The evidence was of the beer. It was suggested in Court that directed to show that the cases holding the boer the contract was for the sale of cases of beer not were not merchantable for shipment, what- of beer in cases. On this point the cause of Gower ever that may mean. It is obvious, however, r. Dedalzen (supra) directly bears. There, in that both the cases and the beer were in a sale. an action for not performing a contract to
pur. able state or condition and therefora of mer- chase a cargo of good merchantable Gallipoli chantable quality fulfilling the condition im- oil contained in 240 casks, it was held that a Evidence in corroboration of the Attorney-plied by law in respect of the bear. Later on I plea that the casks containing the oil were not, General's statement was given by Lance-Ser-
it the time of the contract, good merchantablo geant Landor and Tsoi Ya Shang.
casks, was ill.
The Attorney-General produced a copy of the statement made by the defendant at the Magis- tracy.
Lance-Sergeant Landor was recalled at the request of the foreman of the jury. He was asked whether when he found the defendant he was searching for the man mentioned by the defondant, and he replied no. He was looking for Ho Pan, who was still at large.
The jury found the man guilty and he was sentenced to six months' hard labour.
Yau Ah Yeung, also charged with being a member of an unlawful society, pleaded not guilty,
Mr. W. A. Muskett's name RS a juror was called, but he did not respond, and His Lordship directed that he should be requested to attend in Chambers at ten o'clock the follow ing morning.
The Attorney-General said that at Shatin in the New Territory, where Lance-Sergeant Landor was stationed, the police were taking particular care owing to the unsettled state of the district. On the 8th October Lance- Sergeant Landor observed the prisoner sitting by the roadway near Shatin. Suspecting him he searched him and found in his possession a certificate which was found to be a Triad Society passport.
The defendant was found guilty and sen- tenced to six months' hard labour.
Tuesday 20th November.
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shall refer to the case of Gower v. Dedalzen 3 Bingham N.C. 717 as my authority for treating the beer and not the cases as being the goods
It had been contended that the contract was that were sold. The general rule is that there not for the sale of a given quantity of oil but is no implied warranty or condition as to the of a certain number of casks of oil; that the quality or fitness for any particular purpose of subject matter of the contract was as well casks goods supplied under a contract of sale. The as oil, and that the casks ought to be of a defendant however allegas that the circum-merchantable quality as well as the oil. Park stances, bring this transaction within an excep. tion to the general rule, because he had made known to the sellors the particular purpose for BEFORE HIS HONOUR T. SERCOMBE SMITH which the goods were required, vix. shipment
(ACTING PUIsne Judge).
IN SUMMARy JurisdictION.
LI U SAM V. LAM TSIT KWAI AND OTHERS.
Li U Sam, of the Tang Lou village, in the New Territory, sought to recover from Lam Tsit Kwai, Lam Pam Kwai, Tam Pat Kwai and Tam Fan Kwai, of Shan Pai village, in the Yuen Loong district, $302, being the balance of principal and interest due on a promissory note dated 26th Jan., 1895, and given by the defendant to the plaintiff.
"
to Shanghai. The phrase "particular purpose means the purpose to which the goods are to be applied. The purpose to which this boor was to be applied was not shipment, it matters not whither. Shipment is merely one act in a series of acts constituting transport or removal for some ulterior purpose to which the goods are to be applied. This defence then does not fall within the exception, and the general rule prevails that there is no implied warranty or condition as to the quality or fitness of this beer for any particular purpose.
J. said This was a contract for a cargo of good merchantable Gallipoli oil and rota contract for well seasoned casks. The casks are only an adjunct" and Bosanquet J. said “the circumstance that some of the casks were defective is no answer to the notion. Evon if all the casks had been defective in some respects, as in the loss of a hoop or two, and some of the oil had escaped, it would have been no answer, unless the oil had been injured, because it does not go to the essence of the contract. Suppose a contract for a number of bales of cotton of a given quality; the bales arrive and the cotton is of the quality required; it would be no answer to an action for the price to say that some of the bales were rent.
It