December 10, 1906.j
appeared for appellant, and Sir Henry Berkeley, K.C., instructed by Mr. F. B. L. Bowley, Crown Solicitor, for the Crown,
Mr. Blade The Crown consented to have the matter rebeard before the Full Court, but they have subsequently made an amended suggestiou, that only the evidence of the appellant be taken, and not the evidence of other witnesses. I regret we cannot consent to that,
The Puisne Judge-You are applying for a rebearing. When that comes on this Court has power to admit any fresh evidence.
The Chief Justice-The rehearing of criminal case before the Full Court ?
I am afraid am a little behind the practice.
Mr. Slade Under the Magistrate's Ordin- ance, that is the only way it can be done,
Sir Henry Berkeley-What they hare to show is that they have any grounds for a rehearing.
Mr. Slade What I am re'ying on is this letter from the Colonial Secretary.
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Sir Henry Berkeley-1 must raise objection here. My learned friend proposes to read a confidential communication from the Government to the General Officer Command- ing Troops. It is a state letter which he has | no right to read in Court.
Mr. Slade I have the authority of the! General Officer to do it.
CHINA OVERLAND TRADE REPORT.
he had given it before a magistrate. It was not taken before the magistrate, apparently due to a misapprehension, and I am prepared to allow it to be taken and placed among the depositions and considered by the Court, to allow the Court to come to the conclusion if a rebearing should be granted. It seems to me that course will prevent any unfair feeling by the prisoner or those interested in him that he has been impro- perly convicted, and that I am not asking the Court to exercise jurisdiction they bave not got. Mr. Slade The Court may either dismiss the appeal or grant a rehearing. All we ask for is that the matter should be reheard, then it may be that you will only take the evidence of this man. I want a rehearing, and want it to be clearly understood that the Crown are objecting. They want to have merely this evidence put among the depositious and treated as if it had been taken before the magistrate. That is impossible, as we cannot see what the effect on the magistrate's mind would have been had he heard this evidence. They want the Court to assume that if the magistrate had heard this evidence he would have convicted,
The Puisue Judge-You object to the evidence being taken of this man only ?
Mr. Slade-Yes,
Sir Henry Berkeley-Very well, I withdraw my consent. He (Mr. Slud-) appeals to Cæsar
Mr. Slade-We want to have a relearing,
Sir Henry Berk-ley-'lhe General Officer · and he can go to Cæsar. Commanding has no power to cons nt fu property of that kind bing made public, į but when it is headed coufidential. He must have i Sir Henry Berkeley-On the ground that your been misunderstood when he said he wished man was not ca led; that is the only grievance, & confidential letter read without the per mission of the writer. The letter was written confidentially, making certain offers and liberating the prisoner pending appeal. It is a State document which cannot pass bly be read. A confidential communication between officials is regarded as a letter between private persons, and I am rather surprised my friend } should be here to take that course, especialy after the remark I made to him.
His Lordship-Unless you have the authority of the writer-
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such view on it as we think best. Eren suppos- ing the Crown consented to a rehearing, the Court would not be bound to grant it.
Sir Henry Berkeley-You have the Crown here to-day to oppose a rehearing.
Mr. Slade-Yes, have plain; that's plain; the Crown appear here to-day to oppose the rehearing.
Sir enry Berkeley submitted that the Court could not bind the Crown to a rehearing on mere corre pondence, and the case was formally adjourned until the 11th. Meantime the con- fidential papers will be considered in chambers
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IN ORIGINAL JURISDICTION,
BEFORE SIR FRANCIS PIGgott (Chine JUSTICE.)
ALLEGED BREACH OF CONTRACT. The action brought by the Holland China Trading Company, Alexandra Buildings, against the Tong Tai firm, traders, 93 Wing Lok Street, for breach of contract was continued.
The Hon. Mr H. E. Pollock, K.C., instructed by Mr, C. D. Wilkinson (of Messrs. Wilkinson and (rist) appeared for the plaintiffs and Mr. MW. Slade, instructed by Mr. F. X. d'Almada e Castro, appeared for defendants.
The case for the plaintiffs having concluded, Mr. Slade in opening the defence submitted that the evidence adduced on behalf of plaintiffs showed that defendants were induced to enter into these contracts by the false representation of the plaintiffs' agent. As to the contents of the English portion of the contract, he submitted that it had been established law for many years that if an agent in the course of employment made A false representation and thereby induced another to enter into a contract, the principal of the agent was liable for the act of the agent, He was liable either in action brought against him by the defrauded person or if the defrauded person refused to carry out the contract. False prétences could be used either as a ground of action, or as a defence tɔ an action. In the course of negotiations for this contract the agout mide untrus statements, and on the face of those statements the defendants entered into the contract. After quoting authorities in support of his argument Counsel submitted that on plaintiffs' own case there must be a rerdiet for defendants.
Mr. Slade is not the only one and you know it quite well. You ought not to make such stat mu-n's. This corresp adence has læn thrown open by the Colonial Secretary, and they now attempt to allege it is confidential.
Sir Henry Berkeley-On behalf of the Chown I take the objection that nothing except the depositions can be referred to on an app-al¦ on the question of fact. The Appeal Ordinance refers to appeal on question of law and appeal | on question of fret, Where an ajqwal is mude on a question of fact, the prisoner is confined to Mr. Slade The corresía, dence was initiated the four corners of the depositions, and must by the General Officer. He Loaded his first
The Court th-t D the facts letter confidential; consequently all the others in The depositions the conclusion arrived afterwards were marked cou fidential. He, being; at by the magistrate is an erronécus one. the person who initiated it, has the right to give | The Court can consider rathing on this appliva. permission. urely the Crown cannot go back | tion for a rehearing excep“ the question as to and shelter themselves behind the heading ¦ whether the magistrate was
WAS not "confidential." I am in a position to prove ¦ warranted upon this inets b·fore him in coming that a direct offer was made on behalf of th to the conclusion he did. Therefore I submit the Cour“ should stop my learned friend from making allusions liable to eznse feeling between the Government and His Majesty's forces.
Mr Slade - It nudoubtedly will cause feeling. BEFORE MR. A. G. WISE (PUISNE Judge). Sir Henry Berkel y– My learned friend seems to be quite unaware of the important and serious matters he is attempting to drag into this case. He wants to bring before this Court AD act of im roprity on the part of the| magistrate in the conduct of this case, which should not come before the Court of Appeal,
Crown with regard to this case, and we have acted upon it.
The Chief Justice- If it is e-vered by the word " confidential you cannot.
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Mr. Slade-It is a most disgraceful breach of faith on the part of the Government not to consent to a rehearing in this case, and I hope the gentlemen of the Press will take notice of it, and that it will be borne in on the officials guilty of it,
The Chief Justice-We cannot take any cognizance of what is in the letter. It is a question entirely to be settled between your client and the Crow.
Mr. Slade-As your Lordship pleases. Let the Crown go back on anything they ay.
Sir Henry Berkeley-They have not gone back on anything.
Mr. Slade-Please, Sir Henry, don't make statements like that.
The Puisue Judge-We have decided that the letters shall not go in.
Sir Henry Berkeley—We consent now to the prisoner giving his evidence, but before he can get an order for a rehearing he must establish that the magistrate came to a wrong conclusion on the evidence before him. I submit on the evidence before him, the magistrate could not do anything else but convict.
The Puisne Judge-My own belief is that only at the rehearing have we power to call fresh evidence.
After consultation on the point the Chief Justice announced that in the opinion of the court fresh evidence could not be taken on the motion.
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Mr. Slade- I am not referring to any impropriety on the part of the magistrate. Will your Lordships hear m« ?
The Chief Justice-You want to refer to something which would qualify your form-r statement with regard to the heading con- fidential."
Mr. Slado-This correspondence has been opened by Mr. Sercombe Smith himself, and rendered" nou-confidential.
Evidence was led and the case further adjourned.
IN SUMMARY JCRISDICTION
CLAIM FOR GOODS SOLD.
Mak To sued Chan Kwan and Cheong Sul to recover the sum of $125.1) for goods sold and delivered.
Mr. F. C. Barlow (of Messrs. Goldring and Barlow) appeared for plaintiff, Mr. R. A. Harding for the first defendant and Mr. Cito Kong Sing for the second.
Mr. Barlow slated that plaintiff was a provision dealer while defend nts were stewards on the s.s. Indravelli. On June 23th defend- ants went to the plaintiff's shop and purchased goods to the total amount endorsed on the writ. Half the amount was to paid down, and the other half on the return of the ship to port. The goods were placed on board, and when plaintiff sought the defendants they informed him they had no money, 50 The Puisne Judge-You say it is admitted | would pay all when they returned to Hongsong. there is only one part of the correspondence | Plaintiff had made repeated applications for it has b eu agreed to make publié ?
Mr. slade-I don't know about it.
Certain letters I
have bero show that the seal of confidentiality has been taken off entirely.
The Chief Justice-You say you contend that on those letters there may be some consent; then surely that would depend on whether we can accept Sir Henry Berkeley's suggestion that this consent can be given?
Mr. Sade-My view is this: that the terms of these letters contain in precise words an unconditional consent to have this matter heard before the Fall Court. Now they subsequently meau them –
payment, but without avail.
After hearing the evidence his Lordship refused to believe plaintiff's story and allowed judgment for defendants with costa.
Wednesday, December 5th.
IN ORIGINAL JURISDICTION.
BEFORE BIR FRANCIS PIGggott
(CHIEF JUSTICE).
CLAIM FOR NON-DELIVERY.
Bir Henry Berkeley-This particular point is whether your Lordships can commit yourselves to the consent the Crown is prepared to give to allow the evidence of the prisoner to be taken. I am merely consenting that the prisoner shall I would be better if the correspondence was sent | $5,347.78 for the non-delivery of a be allowed to avail himself of his evidence as if to us in chambers. Then we can express indigo,
The Chief Justice-In view of the obvious inc uvenience of correspondence being referred The You Chou Shing firm sued the China to u Court, unless absolutely necessary, it | Navigation Co., Ld. to recover the sum of
argo of