January 7, 1907.)
INTERESTING SHANGHAI
JUDGMENT.
CHINA OVERLAND TRADE REPORT.
I might mention that if this matter were to come up again, the costs would have to be decided'
is entitled to any consideration. no order for costs. I do not think the defendant
At H.M. Supreme Court, Shanghai, on De., but if it does not come up to be decided, I give
cember 27th, Mr. F. 8. A. Bourne, Acting Judge, in re Scott and Carter r. 8. J. Halse, gave the following judgment:—
This is a preliminary point of law, namely, whether the stipulation in Clause 5 of the agreement of March 30th, 1904, between the parties to this action, that the defendantshall not practise as a civil engineer, architect or estate agent in China or Hongkong until the expiration of eighteen months from the expira. tion of the said term of three years
"
is such an
unreasonable restraint as to be contrary to public policy and threfore void.
**
IMPERIAL TENNIS CLUB.
CORRESPONDENCE.
13
THE PERIL OF THE HUMOURIST,
TO THE EDITOR OF THE
DAILY PRESS."]
Hongkong, December 28th, 1906. SIR.-I read with some amount of discomfort the report in your paper this morning anent the serious attack msd at Mr. Brewin at the Sani- tary Board meeting last evening.
64
The members of the Imperial Tennis Club, Kowloon, held a social at the British School, Robinson Road, on Dec. 28, when they and their guests spent a very enjoyable time. The large schoolroom, which was tastefully decorated, accommodated a company numbǝring about 100 who indulged in daneing to the music supplied by the Calcutta String Band, Messrs. J. Welsh, J. C. Lows and W. Pelling were assiduous in the discharge of their duties as M.C's and the general arrangements made by the com. mittee consisting of Mrs. Robertson, Mrs. Edwards, Miss Hayward nl Mr. Tulloch left nothing to be desired. The prizes won in the gen'leman's tennis tournament were presented in an interval by Mr. B. James to Mr. Edwards (1st), Mr. Lowe (2nd), and Mr. Clements). (3r1 REVIEW OF EXCHANGE, BAR SILVER AND BANK RATE OF DISCOUNT
March
Those who know that gentleman well enough could not treat his remarks about the two Un- Official members other than as
a good joke." During the three years I have been a member of the Board I always found him impartial, just and painstaking in all matters that came before the Board, and he could always be looked upon for an unbiased decision whenever required of
Yours faithfully,
him.
FOR 1906.
AN EX UN-OFFICIAL MEMBER
OF THE SAnitary BoaRD.
(BY MR. TH. CHRISTIANI).
[Average Rates of T. T. in Hong. kong (Approximate), FOR THE
Month. Quarter. Half
year.
For the year
1906,
HIGHEST AND LOWE3T.
Hongkong.
London,
Months.
Bar Silver.
Bank rate
T.
T.
of Dis-
count.
2s d
9 hd 2g Ojd
301
29 11-16
4 4
2a 0 9.16d
2.1 I-16d
78 041
30 13-16 30 30%
4
2. Old
29
4
2a 0d
28 0 ad
28 14 28 Jad
2x old
2s ld
28 1 9-16d
28 1d 1-16
30 9.16 294 315-16 31,
.
30 7-16
4
29 9.16
30 7-16 29 13-16 34
34
2s ląd
30 15.16 2
32. ld
317
301
2s 2ïd
28 1d 2/2 7-16d
329-16
31
28 3d
32
28 31
28 34d
31 9-16 6 6 Average T.T. rate for the year 19 5-1.11)
28 2 15-16J
April
In deciding whether a restraint is reasonable the Court has to consider whether the restraint does or does not go further than is necessary for the fair protection of the plaintiffs, (Honer v Graves, 7 Bingham, p. 744). This restraint dous, in my opinion, go too far in space, for the defendant could in DO way damage the plaintiffs, who are established only at Shanghai, by practising at Hongkong or Canton; and this the plaintiffs practically admit, for they ask for an injunction in regard to Shanghai only. When, however, the reasonable and the unreasonable terms of restraint are severable in law, the Court oan enforce a reasonable and annal an unreasonable term. In this case there can be no doubt that Hongkong is sever- able and can be aunulled, We come down then to the real issue-can the term China" be out down to "Shangbai"? The plaintiffs' counsel contended that this can be done because nearly the same thing was done by the Acting Chief Justice of this Court in the case of Crawford and others v. Philips (N.-C. Herald, July to December, 1888, 387). Now if that case decided directly or by necessary implication a point in issue in this case, it would Jaonary •Vs be binding on the Court provided, (i) that local | February circumstances had since remained the same, for Public Policy changes with varying times and conditions, and (2) that the case had not been overruled by cases since decided at Home, because this Court administers, English law for the time being in force." In regard to (1) local conditions have greatly changed since 1888, many new ports have been opened, there must now be several that can support architects and engineers at great distances from and quite independently of Shanghai, and it is possible now, in view of the or gineering work that is going on in the interior, that the Chiuexe Government might raise no objection to an engineer practising his profession at places not open to trade-Peking for example. In regard to (2) I think the effect of recent cases decided at Home is that the Court can annul one or more places amongst several specified in a contract, er may cut the restraint in two and omit one part where the line the severance must take is clearly indicated by the contract itself. (Baines v. Geary, 5 C.D.
p 154); but that the Court will not make a specific restraint out of a broad indefinite one, that is the Court will not draw a new contract for the parties (Davies v. Davies 36 C.D. p 396 per Fry LJ.; Baker v. Hedgecock, 39 C.D. p. 522; Mills v. Denham 1881 1891, 1 Ch. p. 50); and it seems to me that this is just what I should be doing if I were to substitute "Shangbai " for China.
May
June July
28 1d 5-16 August 28 1 11-16d 23 114 September 28 29-164 28 17d October 234d 9824 November 23 11-16d 2s 3 1-16 331 December 2833-16 28 2 13 16 324 MEMO:-
RITES {
SILVER
HIGHEST 9th November. LowEST-12th March HIGHEST 19th November. LOWEST – 12th March
328 011-16d
28 1 5-16d
328 15.16d 2814d 2/07 2/1}
being a rise of about 51%.
T.T. rate on 31st December, 1905=2× 0 9-16d
do 29th do 1906-23 3 d being a rise of about 101
TABLE SHOWING THE HIGHEST AND LOWEST PRICES OF BAR SILVER IN LONDON, BATES OF EXCHANGE IN HONGKONG, AND HANK OF ENGLAND RATES OF DISCOUNT.
FOR THE YEARS 1877 TO 1906.
Exchange in Hongkong
WIRE.
LOWEST. 38 91d 3351 3,541
ان
431
431
31 d
Bank Rate of Discount
in London.
Bar Silver in London.
HIGHEST.
LOWEST.
HIGH ST.
1877... 1878
581
531
43fd
351
494
3s lid
1879. 1880
53 13-16
PRI
523
513
is 011
3s 7fd
53
3s 9fd
33 7jd
1882
52!
50
38 94d
38 64d
1683
511
50 1.16
3. 871
38 71
1884.
513
49.
38 84 1
1885
50
16
3s 7d
38 61d 38 31d
1886
47
42
38 47d
28 114d
1887
47
3s 41d
38 nd
1888.
44 9.16
414
3. ltd
2s lĺtd
441
41 15-16
3s 2j 1
2 1141
542
3. lofd
481
435
3s 5d
304d
431
3. Ofd
29 8td
38 13-16
304
28 871
2a 2fd
314
27
Za 31
ls 11td
1895.
31 5-16
27 3.16
28 2fd
Is 1111
1896.
31 9-16
294
223d
28 14d
29 13-16
231
28 lid
18 91d
1893.
281
lo lijd
Is 9fd
1899
29
261
1. 11id
Is tuid
190)
3
28 lid
ls 11td
about thirty open ports spread over an immerse area, and for an engineer possible places beyond, | 192. cannot be cut down to Shanghai; and that the 1903 restraint in this contract is therefore unreason. able and cannot be enforced. I regret the result I think the plaintiffs are morally entitled to protection against the defendant's competition in this port. Costs reserved.
1901
29.9.16 26
25
2s ld
1. 9žd
21 11-16
1s 104
18 64d
28!
21 11.16
13 10 11-16d
la Bid
1904
28.9.16
24 7.16
1s 11 9.16d
ls 84d
1905
1906.
80 5.16 33
25 7-16 29
214d 28'3 11-16d
19 13-16
28 Did
Hongkong, 1st January, 1907,
To revert to Crawford v. 1 hillips I doubt whether "China" can now be interpreted to mean the open ports only. Terms in a contract are to be understood in their plain, ordinary and popular se se, except for clear reason (Robertson 1889. v. French, 4 East, p 137). And if "China"
1890 cannot be interpreted to mean the open ports | 1891. only, the Court would bave first to sever Hong | 1892. kong, then to divide China into the open ports 1893. and the remainder, and having rejected the 1894 remainder as too broad, to sever Shanghai from the other ports; and I can find no authority for sach a butchery of a contract. I notice 1897 Crawford v.hillips was undefended by counsel. In view of all the above considerations I conclude that “ China," which now embraces
HIGHEST. LOWEST.
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