April 4, 1904.]
the third clause) to claim (when Crown Leases are granted), a Crown Lease of the portion of the Reclamation deliminated on the plan annexed to those Articles of Agreement. The whole of the rest of the reclamation in front of M.L. 53 (A). now in dispute, was by the schedule allotted to Yin Chow, the other frontager, as owner of Sections B and D.
It seems strange that Yiu Chow should not within the statutory two months from 6th July 1889 (the date of the Notification in the Gazette) have formally signified, in writing, his accep- tance of the portion of the Reclamation assigned to him in the Schedule. If he had done so, there was no lawful objection that I can see to prevent his being allowed, and I think it pro bable that he would have been allowed, to enter into the Articles of Agreement specified in the Ordinance. If he had done so he would, on pay. ment of the contribution specified and any extra payments that might become due. have become entitled to a Crown Lease in due course of the very portion of the reclamation which is now in dispute.
CHINA OVERLAND TRADE REPORT.
1
It looks therefore as if Yiu Chow had, contended that he was entitled to the whole or it would not have been necessary to discuss whether, the equitable proportion could or could not mean the whole. It is in my opinion, fairly clear that Yiu Chow wanted what he was entitled to, viz., all the Reclamation now in dispute, but that Chu Chuen and those who then advised him, claimed the greater part for Chu Chuen, and being "more pushing and resolute than Yiu Chow, Chu Chuen got permission to sign on condition that he settled the just claims of others,
It is owing to the wrong man having heen allowed to sign what purported to be articles of agreement under the Ordinance that the present difficulty has arisen.
Both Yiu Chow and Chu Chuen are dead. and the plaintiffs and defendants now stand in their respective places and, seeing that the cost of the 5.853 square feet of reclamation in dispute was under $13,000, while its present value is estimated as not far off $100,000, it is easy to understand that the question of what is the 'equitabla proportion' is being vigorously fought
out.
Mr. Bruce Shepherd in his evidence, gives some explanation of the matter. He said "I tried to get Mr. Yiu Chow to sign the Agree- There was correspondence between Chu ment as the frontager of B and D before the Chuen and the Colonial Secretary before the undertaking of 19th December (what this articles of agreement were entered into. Chu undertaking was, will be explained later on). Chuen wrote ou 27th July, 189, complaining, "It would be during the month of November. inter alia, that although 1,526 feet of reclamation He said he wanted to buy the Godowns on had been allotted him in respect of his Section A and he would not sign anything or "remaining portion of M. Lot 53 (A). yet agree to anything till he could settle with Chu nothing had been allotted to him in Choun (who was then an old man) about the respect of Section A. which as he alleged purchase of Section A and
the remaining comprised more than half the area of the whole portion." -Chu Cheun, however, refused of Marine Lot 53A. Of course, the reason was to sell to Yiu Chow and Yiu Chow that Section A had no froutage on the old Praya. then said to me that it would be better for Accordingly, on 30th Sept.. He gets a letter him to wait for Chu Chuen's death and then from the Colonial Secretary's office to the fol- buy all the Lot and get the reclamation|lowing effect:- I am directed by the Governor cheaper. Upon that I decided that Chu Chuen should sign the agreement and enter into the guarantee which he did."
This was accordingly done, and Chu Chuen entered into the very agreement which, but for his singular conduct in the matter Yiu Chow ought to have entered into. Indeed, the original agreement was made out in Yiu Chow's name ready for him to sign, and he is therein described as Crown Lessee of Section D and Section B. but this is struck out, a line being drawn through his name, and Chu Chuen signs and is described as Crown Lessee of Marine Lot 53, though article 5 of the agreement contains this proviso" provided always that nothing in this agreement contained shall be held to give the Lessee any right or rights over the new foreshore or otherwise in respect of or in connection with the portion of the reclamation hereby agreed to be granted to him, of a nature different to or in a degree greater or less than such lessee may have had in respect of or in connection with the said Marine Lot. 53 A. Sect. D, 53 A Section B, immediately before the coming into operation of this Ordinance."
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to inform you that as regards sib-section A of M Lot 68 and Section A of Marine Lot 53(A), the lands in question having no marine frontages have no moral claim on foreshores such as has been held to attach to land having such frontage." Chu Chuen, however, wrote back (letter 1st October, 1889) urging his claim as the register ed Crown Leaseholder of Marine Lot 5334 and the actual owner of nearly seven-eighths of the Lot " and saying "Is not every part owner of a Marine Lo entitled to share in the benefits of the Praya Extension? Can any Ordinance of the Legislative Council over-ride the provisions of my Crown lease, &c. &c."?
the
to
bo
The proper legal answers to those questions were that back section owners could not participate, and that an Ordinance of the Legislative Council approved by the Crown can if necessary over-ride the provisions of any lease, as was expressly decided in Ryrie's case. Finally, on 6th December, 1889, Mr. Lister, the Acting Colonial Secretary, writes to say, Excellency is advised that you may
His
mitted to sign the agreement in connection with per.
It is clear however that. immediately before lot upon your guaranteeing either to assign an the Prays Reclamation in respect of the whole the coming into operation of the Ordinance, equitable proportion of the reclamation or to Chu Chuen had no rights as regards Sections pay an equivalent in money both to Mr. Stephens. B and D. Attached to the Agreement is an who owns Section C of the Lot, and to undertaking signed by Chu Chuen dated 19th Mr. Yiu Chow, who owns Sections B and D. December 1889, which I understand to be the
His Excellency understands that you are willing date he actually signed the Articles of Agree to adopt the course suggested. I am to add, ment (that is after the statutory three months), however, that it will be necessary to include which had been previously made out in readiness in and had been dated 5th October 1889. That "un indemnifying the Government in respect of any
agreement referred
a clause
dertaking" is in the following words:-" the un- claim, that may hereafter be made against it in dersigned Chu Chuen, Crown Lessee of Marine relation to these Lots and any grant of reclama- Lot No. 53 A, in consideration of the agreement tion in connection therewith. I am, therefore, entered into by me this day for the reclamation of to request you to be good enough to place your- the foreshore in front of the said Lot, under self in early communication with the Land the Praya Reclamation Ordinance, 1889, hereby Office with a view to carrying out the above guarantee either to assign an equitable pro- arrangements." We now see how Chu Chuen portion of the said reclamation, or to pay an came to be allowed to sign the agreement which equivalent in money to the owner of Sections one would have expected to find Yiu Chow sign- B. C and D of the said Lot. I hereby also ing. Mr. Bruce Shepherd in cross examination agree to indemnify the Government in respect stated. When I asked Yiu Chow to sign the Re. of any legal claim that may hereafter be made clamation Agreement he could have done so if he against it in respect of the said Reclamation." | had wished." Yiu Chow did not seem anxious to Mr. Bruce Shepherd's evidence continued sign. I think he was afraid of Chu Chuen's claim, AS follows: I spoke to Yin Chow 83 and Chu Chuen was very vigorously urging his well as to Chu Chuen before the guarantee WAS settled or signed. Neither of them could agree as to how the equitable pro portion should be settled. I told both Yiu Chow and Chu Chuen that the " equitable proportion" could not mean the whole. I took the words “* equitable proportion" out of
the Ordinance (Section 7).
263
Sections B and D, and of course express their willingness to repay to him (or the defendants as his representatives) with interest at 8 per cent., all the contributions towards the ex- penses of the Reclamation which he has had
of to pay under the articles agreement. The defendants, on the other hand, contend
acceptance within the two months from the that Yiu Chow, not having signified his
date of the notification of July 6th, 1889, as
entered into any articles of agreement under required by the Ordinance. and not having
that Ordinance, lost his claim and was relegated to the position of those who might ask for compensation from the Governor under sub- section 6 of Section 7. Moreover, they con- tend, that when the undertaking or guarantee was given. Chu Chuen never intended for one moment that under the words "equitable pro- portion Yiu Chow was to get the whole. Indeed it came
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claim and seeking to establish a right for back section owners to participate in the new reclama- tion. Now I am asked to say what is this "equitable proportion" to which Yin Chow's successors are entitled. They claim to be entitled to the whole, on the ground that Chu Chuen really must be taken | to have entered into the articles of agreement as trustee for, or on behalf of the owners of
17
out in the correspondence that Chu Chuen actually paid Mr. Stephens, the owner of back section C. $2,000, to settle his claim to a part of the reclamation. Chu Chuen disputed the view that the Ordinance, properly read, conferred no rights whatever to share in the reclamation upon any but frontagers, so naturally had to apply his been held that where there is a doubtful point principles to Mr. Stephens claim. Now, it has
of law such as a question respecting the con- struction of a will, there is nothing whatever to prevent a compromise, and though, naturally, one party must be wrong in his view, yet he can. not afterwards seek relief on the ground of mis- take assuming the compromise was fairly entered into. But I see no evidence that Yiu Chow was
party to any compromise or to the signing by Chu Chuen of the articles of agreement with the undertaking attached, or that Yin Chow was consulted about the terms of that under. taking. It seems clear that Chu Chuen 'supposed that, in giving that undertaking he was only. agreeing to assign some small portion of the reclamation to Yiu Chow because, in his letter, of 20th December, 1889, to the Colonial Secretary he says he has settled with Mr. Stephens by paying $2,000 and continues. "I regret, however, that I have not yet been equally fortunate with Sections
Yiu Chow, the owner of B and D, but, as his equitable proportion is so small that he could not build Agreement apon it in conformity with the Building of the Reclamation Ordinance, he may see that it is desirable to sell his interest as Mr. Stephens has done.” It seems to me that Yiu Chow rightly wanted the whole of the disputed portion of the Re- clamation. I have no difficulty in determining that Chu Chuen's contention was wrong, and that Yin Chow was entitled (had he urged his claim to do so) to sign the articles of agreement for the whole. My difficulty arises out of the fact that he did not do 30. If he had gone to the Court at the time to determine what the equitable proportion was, the answer would have then been. It means, in this case, the whole." Before I pass to the more recent corres- pondence. I may point out that the payments made by Chu Chuen, or by the defendants, his successors, in respect of the disputed portion of the reclamation were :--
$3,189.88 19th December, 1889
3,189.88 21st August, 1899 3,189,89 29th June, 1900 1,594.94 28th February, 1903 1,594.95 15th January, 1903
In all $12,759,54
It will be observed that after the first
contribution was paid, the same day as the undertaking was given, no further contribution was required till August, 1899, after both Yiu Chow and Chu Chuen were dead. That may, at least partly, explain some of the delay in these proceedings, for the reclamation in front of Lot 53A was not begun until some years When the further instalment of contribution after the articles of agreement were made.
by the Treasury to the plaintiffs instead of to was required, application for payment was made the defendants. This mistake probably arose from the name of Yiu Chow, the plaintiffs' pre- decessor as owner of Sections B and D, being mentioned in ths Schedule, in the Government The plaintiffs, accordingly, in July, 1901, paid notification of 1889. previously referred to.