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·May 1, 1905. j
compelled to come to the decision to which I was bound to come on the authorities before me, and if I could have seen my way to read into that document an implied promise to pay I should have done so.
Unfortunately the notice of motion for leave to appeal against my decision which was filed in that action was withdrawn, and the decision of a higher court upon s question of great consequenos to Chinese commercial documents, called Kit tan, was not obtained.
I think that the difference between the doonments is vital and that the words "No default shall be made contain an implied promise to pay on demand. I think it is quite fair to place the following constraction on the second sentence of the present document:- "If you come and ask me for payment at any time I will make no default in payment; I will pay you there and then." That amounts to a promise to pay on demand, and enables me to do what is desirable, viz., to uphold a far as possible these documents current amongst Chinese. While I in no way depart from my decision in the former case I am prepared to uphold that a cause of action is made out in the present case and that the plaintiff must succeed. I hope the defendants, if they are not satisfied with this judgment, will take it up to the Full Court and obtain the decision of the| highest court in the Colony as to whether documents like the present one are promissory notes or not within the meaning of our own ordinances. It is very desirable that we should have this important matter settled. If the ! decision on appeal went against the present party for whom I give judgment it may be necessary for the Chinese to abandon their present form of borrowing notes and bring them into conformity with the English law, relating to promissory notes.
Mr. Castro asked for a stay of execution for ten days.
His Honour assented.
Thursday, 27th April.
IN SUMMARY JURISDICTION.
BEFORE Mx, T. SERCOMBE SMITH (PUISNE JUDGE).
LI U LAN V. HUNG LAN FIRM. In this sction Mr. (). D. Thomson appeared for the plaintiff and Mr. Dixon (of Mr. John Hasting's office) for the defence.
The plaintiff claimed $602, $552 being the balance of rent and taxes due from the'defendants in respect of premises No. 149, Des Voeux Road Central, and $50 damages done by the defendants to the said premises.
After hearing evidence for both sides, His Honour in giving judgment reviewed the case.
He said that $400 of the claim was for double rent, claimed, under Statute 11 of George 2, on account of the defendants failing to hand over the premises after having given notice. It was proved that due notice was given by the defendants to the plaintiff, n tice that it was the intention of the defendants to give up their tenancy on the first day of the second Chinese moon of this year. When
the plaintiff went to the premises, however, on the stipulated date he found the ground floor door locked and, therefore, could not get in. There were, moreover, some signs of occupation in the shape of some rope seen inside the house on the ground floor. The question arose as to whether the defendant was liable for this
double rent, because he had not delivered up possession at the time contained in the notice he had sent. The ordinary rule was that the tenant must, on the expiration of his tenancy, deliver up the premises.peacefully, for a landlord breaking into premises rendered himself liable to an indictment under a charge of forcible entry. Under these circumstances His Honour was of opinion that the plaintiff was entitled to receive this sum of $400 for double rent. The balance of rent was not disputed.
His Honour thought $25 ample for damages (stairs out of position, broken windows, and holes in wall), and gave judgment for $577
swith corts.
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CHINA OVERLAND TRADE REPORT.
Friday, 28th April.
IN SUMMARY Jurisdiction.
BEFORE ME. T. SERCOMBE SMITH (PUISNE JUDGE).
HOTEL CHITS.
The Hongkong Hotel Company, Limited, sued Freiwald Vojacek for $37.67, owing by the defendant for board and chits.
Defendant asked the Manager of the hotel Mr. A. F. Davies) to produce the chits, amounting to between eight and nine dollars, mentioned in the bill.
The hotel shroff gave evidence that defendant tore up the chitas after looking through them.
His Honour, to defendant-Do you want to go into the witness box?
The defendant hesitated. His Honour-I advise you not. If you tell any untruths 1 shall send you to a place you won't like.
The defendant not giving evidence or call ing witnesses, judgment was given against him with costs.
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A QUESTION OF SIGNATURE.
Mr. R. A. Harding appeared on behalf of Chan Sik Ngan, who sued Wong Ma Shi for 8909.30, due on a promissory note.
Mr. Harding contended that though the pro- missory note was not signed by the defendant, a woman, but by her son, it wa signed on her behalf.
According to the defendant the son was up country and not likely to return for some con- siderable time.
His Honour-Suppose I borrow 8500 from a man and I cannot write, and someone else signs my name, it might not be proved that I am responsible. She can always make her mark. It appears that the money was lent to the woman's son, and the parties got him to put his mother's name to the promissory note, knowing her to be a woman of some property.
After hearing the evidence, His Honour said:-It has not been proved that she borrowed the money. signed the note, or anthorised her son to do so. Judgment for the defendant and costs.
MARING MAGISTRATE'S
COURT.
Wednesday, 26th April.
BEFORE HON. CAPT. L. A. W. BARNES
LAWRENCE, R.N. (MARINE MAGISTRATE).
CONTRABAND CARGO AND REFRACTORY CREW.
Robert Forsyth, Master of the British steamer Beechley, proceeded against twenty-one of the crew for impeding the progress of the ship by refusing to proceed to sea in the waters of the Colony on the 24th instant.
Robert Forsyth, sworn, stated. At 7 p.m. on the 24th instant when preparing to proceed to sea from this port, the members of the crew now in Court came aft in a body requesting to know the destination of the ship, as if she was going to Japan, they refused to proceed. On being informed that the port of destination was Nagasaki, they collectively and individually refused to proceed, giving as a reason that Shanghai was the port they signed on to go to. I pointed out to them that they agreed to proceed to Shanghai and or any other places within the limits of 75 deg. North and 60 deg. South. By so refusing the said members of the crew have prevented the clearing of the vessel. At 7.30 p.m. I again sent for these men and asked them to reconsider their decision, at the same time offering them a bonus of one month's wages per man, so as not to delay the ship. They again absolutely refused to proceed. At 5 p.m. on the 25th instant the aforesaid members of the crew were mustered and asked if (as they had stated) they thought there was danger of being seized by Japanese or Russian vessels of war. In the event of such happen. ing I guaranteed to indemnify them for loss of personal effects, and to secure their wages till their return to the United Kingdom, they would fulfil their agreement and proceed in the ship. They one and all refused to accept any
such offer.
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The agreement was here produced. The clause affecting the case is as follows:-"That the men agree to proceed to any ports or places within the limits of 75 deg. North and 60 deg. South, commencing at Penarth and proceeding thence to Shanghai and or any other ports within the above limits.”
J. Misok, Boatswain, stated:-I signed on last February to proceed in the vessel from Penarth to Shanghai. When the ship arrived in Durban, I heard 8 rumour that she was going to Hongkong for orders, and on arrival here I came aft with the other hands and asked the destination of the ship. The Capt in informed 18 that she Was going to Nagas ki, and we told him that we refused to go, because it was a dangerous thing to do, and we might lose our lives.
The remainder of the men stated that the foregoing remarks expressed their own views, and they refused because they were afraid to proceed.
Captain Forsyth, recalled: -My cargo was shipped at Penarth for Shanghai. When the men signed on no questions were asked by them -when the agreement was exp'ained-neither has any question been asked, nor any trouble given, until arrival at this port.
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J. Misok, Boatswain, recalled:-The rumour we heard at Durban about the ship's going to Hongkong for orders, came from the Chief officer. We were aware that Russia and Japan were at war when we signed on. We were also aware that coal is considered contraband of war by those countries. The Captain gave us to understand that the coal would be discharged at Shanghai.
Mr. Holm, carpenter, said:-Before signing on I asked the Chief officer, with whom I had served before, if the ship was likely to go to Japan. He replied that if the vessel did go to Japan or Russia there would be no harm in so doing.
By the Court:-I served in the Beechley on her last voyage, when she made a similar trip. The coal was discharged in Shanghai and we then took in a cargo for the south from Moji.
His Worship, in summing up, said:-There are points of view affecting this case which have to be taken into consideration. The first is that you deliberately signed articles to proceed to certain latitudes which embrace both Asiatic, Russian and Japanese ports, at a time when you knew those countries were at war, and when you also must have been fully aware that your cargo-coal, is regarded by those countries 23 "conditional contraband," and yet you wait until within measurable distance of your final port of discharge, which, you were also aware was in the Far-East, to create difficuties which have involved serious delay to your ship, and consequent loss to her owners. In knowledge also of the fact that similar difficulties had been created during some conai- derable period before you signed on by other crews, yet you have deliberately chosen your own time to make representations on the subject now, instead of doing so when-before signing on-you had the opportunity. I assign no reason for your act beyond the statements you have made, but to show you the difficulties that sometimes occur in judging, these cases, I would point out that in one or two previous instances, where men have been similarly circumstanced, they have since declared that they were "put up jobs" before they signed on, with the intention of obtaining passages home spent in idleness, and to sue the owners for full wages to the time they arrived in England.
The second point requiring consideration is how far owners can be expected to go in having
it stated on the agreements that their vessels are carrying contraband, for apparently without some such statement attitudes such as you men have taken up are rendered possible. An agreement to this effect in the ships' articles would condemn the cargo, if captured, without question; and running of contraband would practically have to be abandoned. If the reasoning power of crews during the earlier stages of the war were at fault when signing on, it can hardly be contended that it is the case now, twelve mouths later, when men must surely be aware what they are committing
themselves to.
No conclusion, that I am aware of, has been come to in England as to how these cases should be treated, but the line