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March 2, 1901.]
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THE NERVEGNA ARMS CASE.
Mr. Hazeland on Monday gave his defor red decision in case of Ŭ. Nervegna, mer- chant, Queen's Road Central, who was pro- secuted by Captain Superintendent May for the unlawful possession of 65 cases of revolvers without a license. Mr. Bowley represented the Crown and Mr. Gedge the defendant. Mr. Hazeland said:
The defendant was summoned before me on the 9th February last under The Arms and Ammunition Ordinance, 1900,” for that he un. lawfully (a) did neglect to register at the office of the Captain Superintendent of Police the godown in which he stored arms, to wit 30 case8 of revolvers on the 18th July, 1900, and 35 cases of revolvers on the 7th day of Augast, 1900; (b) did furnish an incorrect return of arms remain ing in his possession on the 31st July, 1900, and (c) did have in his possession 65 cases of re- volvers without a license from the Captain Superintendent of Police.
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On the summons being called on the Crown Solicitor on behalf of the prosecution withdrew the 1st and 2nd charges against the defendant and elected to proceed on the third charge alone. The two cases of revolvers, the subject matter of the charge, arrived by the Sado Maru and Kawachi Maru on the 17th July and 6th August, 1900, respectively. These were landed and stored by the Hongkong and Kowloon Wharf and Godown Company. It was proved in evidence that the Godown Company do not issue godown warrants until they have received the bills of lading for the goods. These goods remained in the godown until they were seized by the police on 30th January last under a warrant. The two bills of lading and two drafts drawn by the vendor of the arms were put in. They were received by the Hongkong and Shanghai Banking Corporation from the bank of Gallarate. The bills of lading were sent by the Hongkong and Shanghai Bank to the Godown Company and in exchange received two godown warrants. These are dated the 6th and 7th days of September, 1900, respectively. They are both in similar terms, and commenca as follows: "Received on storage from Hong- kong and Shanghai Banking Corporation on account of Messrs. U. Nervegna & Co., and held to the order of Hongkong and Shanghai Banking Corporation." These two godown warrants have been in the possession of the Bank ever since. The two drafs were accepted by Nervegna & Co., but on being presented for payment were dis- honoured. Both drafts are still unpaid. The defendant is summoned under Section 5 of the Ordinance, which is as follows: "No person who has not a license from the Captain Supermten- dent of Police for the purpose shall either carry any arms or ammunition or have any arms: or ammunition in his possession in this colony." In the interpretation section there is the following definition of the word possession: "Arms or ammunition on the body of or in the custody or under the control of any person shall be deemed to be in his possession." The point for my decision is, What is the construction to be placed on the word possession in Section 5 of the Ordinance? The true test in my opinion is whether the defendant ever had that right to possession so that he could have maintained an action in trover against a person who had wrong- fully converted these arms to his own use either actually or constructively. I am of opinion that he could not have done se. In order to main tain this class of action a plaintiff must have the right to present possession. A vendor's lien for his unpaid purchase money will deprive him of the right to possession. The leading case on the subject is Bloxham v. Sanders 1825 4 B. C. 941. - Bayley J. in the course of his judgment says Where goods are sold and nothing is said as to the time of payment and everything the seller has to do with them is complete, the property vests in the buyer so as to subject him to the risk of any accident which may happen to the goods and the seller is liable to deliver whenever they are demanded upon payment of the price, but the buyer has no right to have possession of the goods till he pays the price. The vendor's right in respect of the price is not a mere lien which he will for- feit if he parts with the possession, but grows out of his original ownership and dominion and payment or a tender of the price is a condition precedent on the buyer's part, and until he
CHINA OVERLAND TRADE REPORT.
makes such payment or tender he has no right to the possession.
A letter was put in dated 19th September last and signed "U. Nervegna & Co." enclosing a list showing the quantity of arms they had in the place where they were stored and to whom they were sold. The list evidently contains the arms the subject matter of this charge.
It was also proved in evidence that the rent for the storage of the said arms was paid by the defendant. I am. of opinion that neither of the circumstances above mentioned can affect or alter the position of the defendant with regard to these arms.
From the time the arms were landed until the Godown warrants were issued the said arms were in the custody of the godown Company for and on behalf of the owners of the two steamers in which these arms arrived. From the dates of the issue of the two godown war- rants the arms have been under the control of the Hongkong and Shanghai Banking Corporation as bailees for and on behalf of the unpaid vendor of the arms. Applying either the common law- definition or the statutory definition under the Ordinance I am of opinion that the possession of these arms was never in the defendant. I | therefore order this summons to be dismissed.
His Worship postponed making an order for the return of the arms.
HONGKONG RACE MEETING.
FIRST DAY, TUESDAY, 26TH FEBRUARY. Stewards. His Excellency Sir Henry A. Blake, G.C.M.G., His Excellency Vice-Admiral Sir Edward H. Seymour, K.C.B.; His Excel- lency Major-General W. J. Gascoigne, C.M.G.; Commodore Francis Powell, R.N., Ü.B.; Colonel The O'Gorman, C.S O.; Major Kettlewell, 22nd B.I; A. Babington, Esq.; the Hon. C. P. Chater, CM.G.; D. Gillies, Esq.; The Hon. R. M. Gray; M. Grote, Esq.; Sir Thomas Jackson, Kt.; the Hon. J. J. Keswick; J. H. Lewis, Esq.; the Hon. F. H. May, C.M.G.; and E. W. Rutter. Esq.
Clerks of the Scale.-J. I. Lewis, Esq., and E. W. Rutter, Esq.
Judge. The Hon. C. P. Chater, C.M.G. Assistant Judge.-The Hon. F. H. May, C.M.G.
Starter.-M. Grote, Esq.
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2nd Starter.-Lieut. Luttrell. R.N. Handicapper.Colonel The O'Gorman, C.S.O. Hon. Treasurer-J. C. Peter, Esq. Clerk of the Course.-T. F. Hough, Esq. The annual race meeting promoted by the Hongkong Jockey Club opened on Tuesday at As in Happy Valley in beautiful weather. previous years the vicinity of the Race Course was all astir. The approaches were crowded with stalls on which various kinds of edibles appreciated by the Chinese were for sale, and several enterprising showmen had also pitched their tents by the roadside, endeavouring to win a few cents from passers-by by the display of canvasses on which more or less extra- No gambling ordinary designs were to be seen. was, however, allowed outside the course, and in consequence the number of Chinese visitors was considerably less than it used to be. At
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one time the centre of the field used to be one seething mass of Celestials. Now but a thin fringe lined the ring, but it was noticeable that Europeans were much more in evi- dence than formerly. The arrangements on the ground were much the same as usual, A row of mat-shed booths had been erected just outside the entrance to the grounds, and several somewhat similar structures had been erected within, all being gay with flags, etc. HE. Major-General Gascoigne, C.M.G., and the Hon. Captain Trefusis were present, but there was no Governor's party, and we under- stand that His Excellency does not propose to attend the races at all this year..
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The Wong-nei-chong Stakes was the first event. Baluchi was the favourite, and in the early part of the race he seemed to justify the reputation he had secured. He subsequently fell back, giving place to Ace of Hearts, and as the winning post was reached got hopelessly behind, Mr. G. H. Potts's Moriturus, which had run well throughout, coming in first, last year's winner (Esperance) being third. The time was 1·161 for five furlongs, the distance having been lengthen ed from half-a-mile. There was a good
entry || (21)
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for the Victoria Stakes but only four ran. Mr. “John Peel's" Bet Mr. "Derick's" Sandstorm were the favourites. The former won, the time being 2.07), against 219 achieved by Sandstorm last year. In the Maiden Stakes walers ran for the first time for many years. A capital race was witnessed, but at the finish Bir Horace McMahon's Kismet won easily. The time was 1:25.3/5 against 1:37), For the Valley Stakes 22 had entered, but only six started, this being the smallest field known for years in this event. The start was delayed owing to the stubbornness of Mr. Bromox's Confederation, which was ultimately left at the post. Mr. J. H. Lewis's Innocent was favou- rite, but it did not show up until towards the finish, when it won easily, making good time, 1 min. 26 3/5 secs., against 1 min. 421/5 secs. The Foochow Cup was won by Captain Ri- chards's Hermit, whose time was exactly minute longer than the time of the previous race, being 2 mins, 263/5. Three new or competed in this event-Captain Bland, Ma Dobell, and Captain Richards. An unusually small field turned up for the Derby-only six out of 22 entries: Mr. David Gillies's Loyalist was a hot favourite, whilst Mr. "Darius's" Glory had also a good number of backers Though both Loyalist and Glory ran well, it was easily to be seen when some distance from home that neither had much chance. Sir Horace McMahon's Kismet had not much difficulty in carrying off the prize, Rheingold being second, Glory third, and Loyalist fourth. The time was 2.55 8/5. There were 21 entries for the Lusitano Cup, but only five started. Forest King was a good favourite, New Rose being second favourite. The former horse led the field all the round, and justified popular predictions by win- ning hands down. Of a field of five for the Compradores' Cup, Croxton, leaving from the start, got ahead until the nearest horse, Mentor, was fully twelve lengths behind. The race looked a sure thing for Croxton, and the spectators were staggered when, on passing the Black Rock, he suddenly lost his stride, and finished absolutely last. Seven started for the Hongkong Club Cup, and it was generally considered an open race. This proved to be quite correct, for it was only at the Distance Post that Rose de France finally took the lead from Bulbul, winning by half a length only. The biggest field of the day was seen in the number of starters for the Encouragement Stakes, thirteen lining up. Mentor was a strong favourite, and with Johnson up made a capital bid for victory. In reality the race was between Dingo and Mentor, and the former finally won at the Distance Post by half a length.
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The band of the Royal Welsh Fusiliers, under Bandmaster J. H. Moir, was in ätten- dance, and gave the following programme
"Belle of New York" Kerker. March......
of the Overture... “Yeomen
Guard" Selection... "San Toy..........
Zenda "Royal Princes
Valse Polka
Valse
Selection...
Song
Valse
แ
Sullivan. Jones. Witmark.
Klussmann.
"Weiner Mad'n ...Ziehrer.
"A Runaway Girl"... Caryll.
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Lost Chord" Sullivan. "L'Etoile Polaire '... Waldteufel. The following are the particulars of the dif- ferent events:--- The WONG-NEI-CHONG STAKES; A Sweepstakes
of $5 each with $150 added : second receive $50; for China ponies; weight for inches as per scale; non-winners allowed 3 lbs; subscription griffins of any previous year non-winners allowed 7 lbs; grifins allowed 5 lbs. Five furlongs, Mr. G. H. Potts' Moriturus, 11st 4lbs
(Mr. W. W. Cox) 1 Mr. Hart Buck's Esperance, 10st 6lbs
(Mr. Crawford) 2 Mr. Mansfield's Ace of Hearts, 11st 1lb
(Mr. Walwyn) 3.
(Mr. Gresson)
Mr. John Peel's Baluchi, 11st 11b
Mr. Kingston's Polka, 11st 21b (Mr. Brutton) Capt. H. M. Richards' Hermit, 10st 8lb
(Mr. Johnson)_0
(Mr. P A. Cox)
Mr. Dryasdust's Titbits, 10st 9lbs
Mr. Derick's Tube Rose, 11st 4lbs
(Mr. Cumming) Mr. David's Tarantula, 11st llb (Mr. Möller) Mr. Nauticus Sunshine, 11st Olbs (Mr. Lloyd)
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