August 28, 1901.]
SUPREME COURT.
Thursday, 15th August.
IN SUMMARY JURISDICTION,
BEFORE HIS HONOUR T. SERCOMBE SMITH (ACTING PUISNe Judge),
CAPTAIN TREFUSIS V. KWOK KONG.
CHINA OVERLAND TRADE BEPORT.
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support of his contention that privity did exist. on business as opposed to an agreement dated He compared the chain of orders given in this 2nd June, 1898, and signed by the parties, His case with the chain of orders given in a mer- Lordship said the evidence on both sides was cantile firm. For example, a taipan of A. B. & extremely conflicting, and although it was tru3 Co. gives an order to a clerk, who transmits the that the witnesses for the defence wore more or loss related to the defendant, by order to the compradore, who instructs a coolie, who engages a cargo-boat. In such a case, is or marriage and ties of kindred, and might is not privity of contract established between A. reasonably be expected to be more than favour- B. & Co. and the owner of the cargo-boat? | ably disposed towards the defendant, yet, never- Something might depend on the exact wordingtheless, if he were to consider the case of the of the order as it was passed from man to man, plaintiff as absolutely true as set forth in the The following is the full text of the judgment and on the knowledge of the coolie who made pleadings and in the evidence, he must, on the delivered by His Honour in the above case :- the contract. It would be a matter of inference other hand, hold that the witnesses for the Early in July last an Arab chestnut gelding whether he knew at the time of contracting that defence were guilty of perjury. Taking, per valued at thirty guineas and owned by Com-A. B. & Co. were his principals. Probably the haps, the principal witness (excepting the mander Erskine, R.N., arrived in the colony inference would be that he knew that his prin- plaintiff himself) for the plaintiff, Inspector on board the transport Nurani.
cipals were A. B. & Co. But suppose that Collett, who stated that the defendant Gibson The plaintiff in this action had been asked that coolie met an independent person who did had informed him that three-fourths of the by the owner to land the animal here, to see not know that the coolie was acting on behalf capital in Ramsey & Company was his (Gibson's) it placed in stables and to look after it until of A. B. & Co. and that independent person own money, His Lordship said that in the face the owner arrived.
engaged a cargo-boat; in such a case would of the strong evidence given by witnesses for there be privity of contract between A. B. & Co. the defence-E. F. Gibson, Mrs. Ramsay, and A F. Ramsay he must come to the conclusion and the boat owner? I venture to say no.
that Inspector Collett was mistaken. Judg- ment would therefore be entered for the defend. ant. But inasmuch as the defendant had noted somewhat indiscreetly by mixing himself up with the business of Ramsay & Company during and previous to the sickness of his sister-in- law, Mrs. Ramsay, no order as to costs would be made, His Lordship holding that the defendant had thus brought the action upon himself, and that the notion was a proper one to be brought before the Court by the plaintiff.
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The plaintiff was therefore the agent of the owner to land the animal, and under the cir- cumstances had authority to delegate his functions in this respect.
He accordingly asked Major Koe, A.S.C., to arrange for the landing of the animal. That officer instructed one Fuckeera to engage a junk to take a pony off the transport Nurani for Captain Trefusis, the plaintiff. Fuckeera ordered his storeman Ataí to engage a boat in the following words :-" Hire a boat to go to the troopship to land a horse. First you must go to the Commissariat to take the horse-box on board." The storeman Atai's version of the orders given by Fuckeern was as follows:- "Go and engage a second-class cargo-boat to go to the Commissariat pier to take a horse- box on board and take it to a ship and take delivery of a horse. When the boat comes back she has to land the horse on the wharf. Cord, rope and tackle are to be theirs.”
In the example adduced by Mr. Hastings there was presumably knowledge throughout the chain that A. B. & Co. were the principals: in the present case the knowledge that the animal was being landed for the plaintiff stopped at Fuckeers and was not passed on.
Throughout this case, much has been said about the plaintiff having the status of a bailee, but I think that up to and at the time when the animal was killed, he had not acquired that status.
A bailment is a delivery of a thing in frust for some special object or purpose, and upon an undertaking expressed or implied to conform to the object or purpose of the trust.
The possession of the thing must be in the party by means of either an actual or a con- structive delivery before such party can be a bailee.
In pursuance of his orders, Atai engaged the Here the possession was in the defendant who cargo-bost of the defendant on the following had a lien on the thing, and until the thing was terms, viz., that the boat was to go to the Commis- delivered to the plaintiff actually or construo sariat pier, to take a horse-box on board, to puttively, no possession was in the plaintiff. off (to a ship), to convey a horse back to the Com- missariat (pier), to land the horse on the pier, and to emply her own tackle and rope: when every thing had been done properly, the reward was to be four dollars and a half.
I accept this version of the terms of the cou tract made by Atai and reject the version given by the witness Ch'an Ts'at-mui, the wife of the owner of the cargo-boat and the person by whom the contract was made, on behalf of her husband, the defendant.
Such a contract having been made, the question is, was the plaintiff privy to it?
The parties who made the contract were olearly A tai of the one part and Ch'an Ta'at-mui of the other part.
It is also clear from the evidence that Atai was not as a fact contracting on his own behalf, bat on behalf of a principal whose existence was, however, not disclosed by word of mouth to Ch'an Ta'at-umi, though the circumstances sufficiently indicated to her that Atai was merely an agent for an unnamed principal.
Who, then, was the unnamed principal for whom Atai was contracting?
Now, an agent is a person duly authorised to act on behalf of another, and the person from whom the authority in derived is called the principal. The answer to the last question depends, therefore upon the answer to the question, Who authorised Atai to make the contract? and the answer to that question is that it was Fuckeera who authorised Atai to make the contract.
There is no evidence to show that Atai knew, either from being told by Fuckeera or from other sources, that the animal was being landed at the ultimate request of Trefusis. His mind was a blank about Trefusis. `Of him he knew nothing and of him he never thought. He never intended to treat Trefusis as his prin. cipal nor to make a contract on his behalf. Fuckeers was the person whom he had in mind as the party for whom he was making the contract: Trefusis was never contemplated by Atai as being his principal. No man can contract for a principal whom he had not in mind at the time when the contract was made. Accordingly I come to the conclusion that there was no privity of contract established between the plaintiff and the defendant in this action. Mr. Hastings used the following illustration in
Nor was the plaintiff a consignes in the ordinary acceptation of that term as designat ing the person to whom goods are remitted as being the purchaser or for purposes of sale.
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Assuming, however, that the plaintiff was not a mere agent, but either a bailee or a consignee, still I should hold that there was no privity of contract between the plaintiff in either capacity, and the defendant.
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The property, whether general or special, in the animal was never in the plaintiff in any capacity: nor did he ever have the possession. This being so, has a person who h a neither the property nor the possession a right of action of trespass on the case? The answer is in the negative.
The conclusion at which I arrive, therefore, is that the plaintiff cannot sue in contract because of lack of privity, and he cannot sue in tort because he had not either the property or the possession.
Should it become necessary to have my opinion on other points which have arisen in the case, I will state that, upon the authority of Liver Alkali Company v. Johnson, L. R. 7 Ex. 267, I consider that the defendant incurred the respon sibilities of a common carrier with respect to the animal which he carried, was therefore liable as an insurer and was not relieved of that liabi- lity by any inherent vice in the thing carried.
The damages claimed in the shape of expenses incurred in foating the cargo-bost, and towing her down to Causeway Bay, as well as in bury. ing the carcase, would in my judgment, be too remote in an action for damages for breach of contrast. Their remoteness in an action in tort was not argued, and I express no opinion on that point.
The result is that judgment will bo entered for the defendant with costs.
Friday, 16th August. BEFORE HIS Honour A. G. WISE (ACTING CHILF JUSTICE).
COLLINS V. GIBSON.
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Ia delivering judgment in the action of Collins v. Gibson, in which the plaintiff (Collins) laid a claim for $2,000 damages for breach of agreement and for an injunction to restrain the defendant (Gibson) from carrying
Saturday, 17th August.
IN ORIGINAL JURISDICTION.
BEFORE HIS Honour A. G. Wis■ (AcTING CHIEF JUSTICE).
APPLICATION FOR HABEAS CORPUS.
As already reported by us, Mr. E. H. Sharp, instructed by Mr: K. W. Mounsay, applied to His Lordship for a writ of habeas corpus, to be served on the Superintendent of Police of this colony, to produce Leang Kun Yau, alias Leung A Su, who was detained by the police under an order of banishment.
His Lordship made the writ returnable for Saturday, and when the Court assembled the writ was produced. Mr. F. B. L. Bowley, Crown Solicitor, and the Captain Superintendent were in attendance.
Mr. Sharp-I move, my Lord, that the pri Boner be discharged, on the ground that the return is bad.
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His Lordship-Is any one going to oppose this motion?
Mr. Bowley-No, my Lord. It is unneces- sary to go into any question of law. Mr. May is here, and if your Lordship will allow him, he will make a statement.
His Lordship offering no objection, Mr. May said that in this matter the police dealt with the prisoner on his own statement. When he was arrested and again when he was discharged from gaol he claimed to be a native of China, and, Mr. May concluded, he personally had no know ledge or information till Friday morning that the prisoner was a native of Hongkong.
Mr. Sharp asked for costs, submitting that the police had shown the utmost carelessness in making_their inquiries.
His Lordship discharged the prisoner, but made no order as to costa, holding that it wasS the man's own fault that he found himself where he was.
Monday, 19th August,
IN CRIMINAL JURISDICTION.
BEFORE His Honour A. G. Wish - (ACTING CHIEF JUSTICE)
AND A JUKY.
THE CALENDÁR. There were four cases down for trial-Chan Po Kam, alias Chan Po: (1) uttering a forged request, for livery of goods with intent to defrand, (2) oʻtaining goods, upon a forged instrument-Cun Kwai Lam: manslaughter; Ch'an Po Kam, alias Tang Cheong : (1) uttering s forged request for delivery of goods with intent to defraud, (2) obtaining goods upon forged instrument-Lam Sheung: being in