August 24, 1908.
us all. We have heard a great deal of late about fixity of exchange, and about great revolutions that are going to take place with regard to the qurrency of China. It is a difficult problem, and it is not for anyone to pretend to understand it fully. But there is one thing that is pretty certain, and that is that we may rest assured that we have a board of direction and of manage. ment that are fully equal to any emergency that may arise, and we can look forward confidently that, when the time comes, they will see us safely through. I ask you to pass a hearty vote, not only for excellent services rendered, but in the confident hope that they will serve us also in the future.
The vote of thanks having been passed with scolamation, the meeting dispersed.
SUPREME COURT.
Monday, 17th August.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR WILLIAM M. GOODMAN CHIEF JUSTICE).
THE EWO COTTON SPINNING AND WEAVING CO, ID.
In the matter of the Ewo Cotton Spinning and Weaving Co., Ld., and the Companies Ordinances of 1877 and 1886, Hon. H. E. Pollock, K.C., barrister-at-law (instructed by Mr. J. Hastings of Messrs. Deacon & Hastings, solicitors), appeared in support of a petition for confirming a special resolution reducing the capital of the above-mentioned Company from Tis, 1,750,000 to Tls. 750,0.0.
Hon. Mr. Pollock stated that according to the special resolution which had been duly passed at a meeting of the Company in Shanghai in July of last year, it was provided that the capital of the Company be reduced from the sum of Tls 1,750,000, divided into 17,500 shares of Tls. 100 each, to the sum of TIs. 750,000, divided into 15,000 fully paid up shares of Tis. 50 each, and that such reduction be effected by cancelling the 2,500 shares of the existing shares which have not been issued, and by cancelling capital which has been lost or is unrepresented by available assets to the extent of Tls. 50 per share upou each of the 15,000. fully paid up shares which have been issced and are now outstanding. The Court was now petitioned, under the Companies Ordinances, to confirm that resolution.
His Lordship said he had looked into the -papers and he saw from the petition that it was expressly stated that the reduction of capital did not involve either tha diminution of any liability in respect of unpaid capital or the payment to any shareholder of any paid up capital. That being so, he understood the creditors were practically unaffected by this.
Hon. Mr. Pollock-That is so, my Lord. Bis Lordship granted the petition. The Court adjourned.
CHINA OVERLAND TRADE REPORT.
147
and the said verbal agreement continued in such a covenant could ever be implied it ought force until the execution of a Crown lease, not to be in this case (see Robson v. Palace dated October 1, 1901, which was for a period | Chambers 12 Times L. R. 56). For these of 28 years from January 1, 19. By this reasons I am of opinion that there has been Crown le: so the right of erecting and main- taining the wharf was demised to the plaintiffs. plaintiffs. The defendant also contended that no breach of contract as alleged by the Prior to the execution of the said Crown lease the whole action was founded on tort and that (October 1, 1901), the Government erected a matshed over the sea against the eastern side of Crown, and quoted Feather v. Reg. (referred to no such action could be brought against the the said wharf. After the commencement of before) where Cookburn, C. J., states:-" It these proceedings this matsbed was injured in a follows that a petition of right which complains typhoon and the Government erected another of a tortious sot done by the Crown or by one about five feet away from the wharf. The public servant by the authority of the Crown matsheds were used by the opium-farmer for discloses no matter of complaint which can searching passengers. The plaintiffs com- entitle a petitioner to redress and that as pur plained that those matsheds cansed an Code of Civil Procedure, Sec. 478, enacts that obstruction and interfered with their right of claims against the Colonial Government must access and therefore were in breach of the be of the same nature as claims within the provisions of their original verbal agreement provisions of the Petitions of Right Act, and subsequent Crown lease. After the plead- 1860, this action does not lie." Although in ings had been filed the Court ordered that an the face of my previous ruling it is unnecessary issue or issues of law should be framed and dis- to decide this point, yet I am inclined to think posed of as a preliminary step. Accordingly that at all events when those proceedings were the following issue of law was agreed upon- first instituted the right of action, if any, was Assuming that the acts, facts, matters, and in the nature of an action for trespass, though things alleged in the amended statement of I have not found a case that goes quite so far. claim and reply (included by consent) are prov. The Attorney-General also referred to ed, do they constitute a cause of action by the Schedule D of Ordinance 15 of 1899, and as plaintiff against the defendant? Before going there is no evidence before me of the exact into the case I had better dispose of the point dates of the commencement of the verbal raised by the plantiffs which if decided in their negotiations between the parties, and as the favour puts an end to the action at once. In Crown lease ran from January 1st, 1900, the amended statement of claim it 's alleged I do not feel inclined to rest my decision and admitted that the Goverment erected a on this contention. As the result of the above matshed and it is alleged that the erection of I find that the defendant succeeds on the issue such matshed was a breach of the Government of law and is entitled to his costs. of the provisions of the said verbal agreement The Court adjourned. and Crown lease. It was contended on behalf of the plantiffs that by the terms of the issue before the Court the defendant had admitted. that there had been a broach and that therefore
there was an end of the matter. The defendnut contended that he had only admitted acts, etc., namely, the erection of the matshed, bat that he did not admit the breach, as that was not an act, etc., but a mere deduction of law made by the plaintiffs, and I am of opinion that such contention is correct. If I had been hear. ing this case with a jury it is perfectly clear I should not have left the question of breach to the jury. Therefore I think that the plaintiffs have failed in their contention. As to the other points raised at the hearing I think that it will be convenient, having decided that the defendant has not admitted a breach, to consider the ques- tion as to breach or no breach, reserving the urther question raised as to whether this action. is founded on tort or on contract. Taking therefore the plaintiff's contention that this ac action is founded on contract, it will be neces- sary to enquire as to what are the general rules to be followed in construing contracts of this nature. It is clearly laid down that in constru- ing grants from the Crown such grants, contrary to the usual rale, are to be construed strictly against the grantee, and that nothing passes except that which is expressed or which is a matter of necessary and unavoidable intendment in order to give effect to the claim an ! undoubted intention of the grant (see Cockburn, C. J., Feather v. Reg. 6 Best and Smith 283). In the present case the demise in the Crown lease was the right of erecting and maintaining the His Lordship gave judgment in the case wharf and nothing else so far as the working of In which the Hongkong, Canton and Maca the lease goes. It was argued on behalf of the Steam-boat Co., Ld.. sued the Attorney-plaintiff that there must be an implied covenant General for damages in reference to the erection of a matshed contiguous to the Company's wharf on the Praya. Mr. E. H. Sharp, K.C. (instructed by Mr. H. J. Gedge of Messrs. Johnson, Stokes & Master, solicitors), appeared for the plaintiff, and on the other side the Hon. Attorney-General, Sir Henry S. Berkeley, appeared (instructed by Mr. F. B. L. Bowley, Crown Solicitor).
BEFORE HI HOSOUE A. G. WISE (PUISNE JUDG®).
ACTION AGAINST THE ATTORNEY-GENERAL.
His Lordship said-In this case the plaintiffs claim damages for the breach of the provisions of a verbal agreement and Crown lease, and for the obstruction therefrom. There were also certain other allegations in the pleadings as to illegal searching, bat as no mention is made on those points in the claim, and as I am clearly of opinion that the plaintiffs could not recover damages under those heads, I shall ignore the point altogether. The facts are shortly as follows:-In or about December, 1899, the plaintiffs entered into a verbal agreement with the Government for the erection of a wharf,
|
Tuesday, 18th August.
IN CRIMINAL JURISDICTION.
BEFORE HIS HONOUR SIR WILLIAM M. GOODMAN (Chief Justice).
NO INDICTMENT.
The Hon. Attorney-General Sir Henry 8: Berkeley stated that he had no indictment to bring forward against Cheng Ut Po, Ho Yan Fuk, Mak Lim, and Pan Yat Sheung, who had been committed to the Sessions ou a charge of larceny.
The accused were discharged.
FORGERY AND FRAUD.
Chan Yik was indicted on three charges- obtaining a registered letter addressed to the Wing Loong shop, by virtue of a forged receipt with intent to defraud on 15th June; uttering a forged endorsement on a bill of exchange for $114 on the Chartered Bank; and obtaining thr e registered letters by virtue of a forged receipt.
He pleaded guilty and was represented by Mr. M. W. Slade, barrister-at-law (instructed i by Mr. J. Hastings, solicitor). The Crown was represented by the Hon. Attorney General, Sir Henry S. Berkeley (instructed by Mr. H. Hursthouse of Messrs. Dennys & Bowley).
The Attorney-General said the facts were very simple and as they were already bɔfore his Lordship he did not propose to add anything.
Mr. Slade stated that the prisoner had acted under bis advice in pleading guilty, and he had given that advice because it seemed to him that all the fac's that could be put forward on the prisoner's behalf amounted to a strong recom- for free access and quiet enjoyment and that mendation to mercy rather than going to there had been a breach of such covenant by the show that he was not guilty. The depositions erection of the matshed which the defendant showed that the prisoner obtained the admitted prevented free accessį The defendant letters from the Post Office and produced a contended, firstly, that in accordance with the shop which wes on the face of it a Wing Loong rule referred to above the grapt must be con- chop and sigued the name Li Yusn. The chop strued strictly as a grant to erect and maintais was undeniably a forged chop. It appeared that alone, and nothing could be implied; and the prisoner did not know positively although he secondly, that even if such a covenant might be might have had a very strong ground for suppos- implied in certain cases yet it could not in this ing that the chop was not a genuine chop. - But case, as the matshed had been erected prior to the depositions showed that Li Tuon was not a the execution of the Crown lease, and that, fictitious person but was certainly at one time therefore, the plaintiffs took the lease with the and until quite recently an employee of the obstruction there. It is true that the lease Wing Loong shop, occupying au important dates back to a period prior to the erection of position. In the evidence of the master of the the matshed, but they made no objection to its shop there was an admission that Li Yuen erection and took their lease with it beforehand. had claims to be a partner. When the prisoner The plaintiffs, however, state that they did not was asked by Li Yuen to go to get the regis immediately object, bea.use they thought ittered letters for him, he submitted that Chan was only a temporary erection. This explana Yik thought he was doing no wrong. tion is unsatisfactory to me, and I am of opinion that under the circumstances even if
His Lordship—If he thought he was no wrong he should not have pleaded guilty”,