February 2, 1901.]
|
Mr. Grist observed that it was not necessary
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⠀⠀ CHINA OVERLAND TRADE REPORT. and gave money to Remedios, who entrusted it | conditional to pay. The document was nothing, to Fredericks to pay the calls. The money more or less than an agreement to pay. It was which Fredericks received was therefore the only evidency of money lont. He submitted money of Remedios. On the day on which he that the document did not comply with section received the money to pay the calls, the defen-83 of Ordinance 9 of 1885. dant banked the money and askel Jenkins to make him a loan of $259 out of the $525 banked. that any particular form of word: should appear To this request Jenkins accaded. But Jenkins in the document, so long as it was clearly an had not the necessary authority to accedo, as undertaking to pay a certain sum of money at he had parted with his right in the money when & cartain time to a certain it was handed on behalf of Remedios to Frode- ment must be read as a whole document, and person. This docu- ricks. Jenkins having given an authority which the meaning of that document must be con he did not possess, the arrangement between siderod.. him and Fredericks was futile to bind Remedios. particular word
It was quite unnecessary that the On 17th September Fredericks wrote to Reme- The words "Now borrowed
promiso" should be used. dios and stated, inter alia, "What there is be- lowed to demand payment" meant clearly "I It is al- tween Captain Jenkins and myself does not promise to pay on demand," and could be concern you in the least," to which Remedios read in no other possible way. replied next day as follows: "Meantime I note
It was a that the non-payment of the call of 250 Pan-
vory constant practice among the hinose not joms does not concern me at all, but it is a
to put the word “ promisë ” in such documents. matter between you and Captain Joukins, to
It was not generally written. He had heard this same mattor discussed there many times. whom I will send copy of your note." Let It was a question of translation. In the trans- us see what this reply amounts to. The origin-lation appeared the words al contract between Fredericks and Remedios There might just as well bare appeared It is allowed." was that, in consideration of Remedios handing allowed to demand." $525 to Fredericks, the latter undertook to manded at any time," would be just as good Payment may be de- pay within a reasonablo time calls to the extent a translation no doubt. He submitted that the of $525. Fredericks actually set about the busi- translation of this noto constituted a promissory ness but did not complete it. That was an exe. note and that it contained an unconditional cated contract, inasmuch as Remedios wholly promise to pay and that it could be read as performed his part of it. "But an executed containing nothing else. contract cannot be discharged except by release under seal or by performance of the obligatior, as by payment, where the obligation is to be performed by payment." (Foster v. Dawber, 6 Exch. 851.) It is clear then that an executed contract, ¿.c., a contract in which one of the parties has performed all that is due from him, cannot be discharged by a parol waiver. The most that the reply of Romedios amounted to was a parol waiver of his right to insist on Fredericks fulfilling his obligation to forthwith A JAPANESE PRINCE ON RUSSIA pay the call that was due. But as that parol waiver did not divest Remedios of his right against Fredericks, Remedios, after a reason- able time had expired, was at liberty, notwith- standing such waiver, to bring an action for money had and received to his use, for the failure of Fredericks to perform his part within a reasonable time ainounted to a rescission of
the contract. Therefore I do not doubt that such an action will lie here. In the case of Parry v. Roberts, 3 A. and E. 118, the plaintiff om- ployed defendant without reward to carry £45 for him to a person at Liverpool. Defendant did not deliver the money.
Plaintiff sued defeudant for £45 had and received to his use. Held that the action lay. In the present case plaintiff employed defendant without reward to take $525 to the Secretary of the Punjom Company: defendant did not deliver $250 out of this amount, and is now sued for the sum, which he must pay in addition to the costs of
the suit.
Mr. E. J. Grist, solicitor, represented the plaintiff, and Mr. O. D. Thomson, solicitor, appeared on behalf of the defendant.
Wednesday, 30th January.
IN SUMMARY JURISDICTION. BEFORE HIS HONOUR T. SERCOMBE SMITH (ACTING PUISNE JUDGE).
CHAN YIK CHO V. CHAN PO SHAN. This was a promissory note case, the plaintiff suing the defendant for $600.
Mr. Grist appeared for the plaintiff and Mr. Looker for the defendant.
Mr. Grist said that the $600 sued for was due on a promissory note made by the defendant to one Li Lin Chin and endorsed by him to the plaintiff.
Mr. Looker, in raising an objection, said the translation of the promissory note was as follows: "Now borrowed from one Li Lin Chin, the -sum of $600 in Hongkong current bank notes. It is allowed to demand payment at any time He submitted that this was not a promissory note at all in the meaning of the Ordinance. and as such it could not be saed upon. If his friend intended to sue it must be done in .some other form and not. under a promissory note. This note did not tain any promise either conditional or un-
con-
His Lordship observed that he did not wish to give a decision on the point off-hand. the suit and that this point should be reserved. Mr. Grist suggested they should go on with This suggestion was adopted and evidence was led.
The witness having been heard judgment was reserved.
AND MANCHURIA.
Prince Konoye, President of the Japanese House of Peers, and a prominent man in the National Union, has been interviewed, and an account of the interview appears in the Japan Herald. The following extracts give the gist of the meeting:-
$163
will be in the natural order of things for her to cast longing eyes on Coroa. Out of Manchuria by all means-this only saves the situation.”
"Db you think, Prince, that Japan can stand the strain P"
with Russia, sny in building warships and on- Well, if Japan goes into further competition larging the army, there may be no limit to the strain, in which case the people cannot stand it.” against Russia's occupation ?"
"Do you think Japan has tlie right to protest
itself in favour of preserving China's integrity. Most decidedly. Every Power has declared Manchuria is China's province, and Russia has sovereignty." no manner of pretension to encroach on her
A RUSSIAN VIEW OF THE CHINESE OUTLOOK.
-
mosti has received from Vladivostok, under The Russian paper Petersburgskiya Viedo-
despatch :- date of the 9th alt., the following remarkable
situation is in the highest degree complicated We hear from Tientsin that the political and unsatisfactory. After the victory of the Russian troops, the conquered territory desired ` pace, but the majority of the Allies used every means in their power to prevent Li Hung-chang dersee entered Paking as a triumphant general, from opening negotiations. Count von Wal and the Germans arrogated to themselves deeds bones. The Chinese people are being perse- which had been dono at the cost of Russian cuted by the Germans, and fool insulted. Fresh forment has arison, and when after the failure of the harvest and the devasta tion of the country the severe, hungry winter. comes on, we shall have more treacherous at ¦ exterminato the hated strangers, Tho means tacks on the part of the inhabitants, hoping to of communication are very bad, and with the freezing of the rivers complete isolation will of communicating regularly with the Court, ensue. Under the pretence of the impossibility and while German policy breathes revene the question of a poaceful settlement, the more and desolation; the Chinese obstinately elude so as Powers, such as Austria and Italy, who Shylock's percentage out of China. The igno- have small interest in China, wish to secure a The situation is coming to what we have marauding bands of soldiers, aro capable of bring- rant populace, acting in conjunction with the long anticipated. No longer cin any doubt being about a renewal on a greater scale of the entertained as to Russia's designs upon Man- Peking siege. The inhabitants have quantities churia, the possession of which helps her to of concoalad arms. develop Eastern Siberia. Russia is confronted is almost impossible for the Allies to find susten-
Even if no revolt occurs, with the vast question of fooding her people in Eastern Siberia, which can be done easily threaten to break out in Shanghai, and will do ance until the spring. Complications daily by taking possession of Manchuria think that her development towards the cularly hated by the Chinese, are sent off to the so unless the looting Sepoys, who are so parti- Western Pacific is a logitimate one, which South. The Viceroys on the Yangtsze can no ought not to be checked; I wish I could longer count upon their troops. There is un- there are indications that point towards the will be only too pleased to see the decline of the But, unfortunately, doubtedly danger at Hankow. The British collapse of peace in Manchuria. Corea will be Russian tea-trade, and to replace it with their at her mercy. After Corea, what? The Corean
own tea from Caylon. The rivers of the pro- boundary, as it is only separated by a river, af- fords no obstacle to the inrush of an invading get up to Hankow. The months of December vince are very low, and Russian gunboats cannot army. Once let the Russians cross the river, and January have great surprises in store for they will come headlong to Seoul. Then every- the Powers in the Far East. The Chinese thing will be at an end. If their advance on dream of celebrating their New Year after a Corea is to be stopped, it must be stopped now. The time has come."
cruel reckoning with their unbidden guests.'
Prince Konoye, asked as to Russia's armed occupation of Manchuria, said: --
concur with this view.
Some
You saw the special telegram from London, wherein De Witte talks of Russia's sublime Christian work in Manchuria, and the number of the soldiers -220,000—engaged in it?"
Yes.
As to the number, I feel a little sceptical. But there is no denying that Russie means to remain in Manchuria as long as the sun lasts."
;
Supposing Japan were going to ask Russia to quit Manchuria, do you think she would easily assout ?"
Nothing of the sort! You must see that there is a conflict of interests between the two countries, by which assertion I mean that, if Russia goes out of Manchuris, then there is Corea, over which we must settle our account. Collision is inevitally in either way."
"How would it be if Japan, in exchange for complete control over Corea, gave consent to Russia's annexation of Manchuria ?”
"That sort of temporary arrangement is of no avail. Russia having annexed Manchuria, it
it
membered, recently returned to Sydney from
Captain Francis Hixson, R.N., it will be re- China after having seen the Australian naval contingents to their destination. Upon his return the popular naval officer decided to take a trip home, and on this becoming known to the officers and men of the Naval Brigade they determined to give Captain Hixson a fitting send-off. Commander Lindeman and a large gathering of the men accordingly proceeded on the 15th ult. to the Australi, whore the officers took personal leave, and the brigade, every member of whom holds his veteran chief in the highest esteem, gave expression to their good wishes in enthusiastic cheering. Many of Captain Hixson's former colleagues in the Marine Board, the presidency of which he held up to the time of its being superseded by the Navigation Board, were present to wish bon voyage to their old friend, as also were many shipmasters and officers of vessels in port.