January 20, 1908.]
GINGER AND CUSTOM.
OHINA OVERLAND TRADE REPORT.
ents.
89
ed for the appellant, and Hon, Mr. H. E. Mr. Pollock-I submit not, my Lord. Dang Chee, Sen and Co., proceeded against Pollock, K.C., instruct-d by Mr. R. A. Hard Supposing the Court through its offioses found the Yau Loong firm for an amount alleged to being, and by Mr. F. X. d'Almades Castro (of certain entries, and upon the strength of those dus as losses sustained by the plaintiffs in Messrs. Almada and Smith) for the respondentries gave judg·ent one way or the other ;: I connection with a contract made by the defend-
don't think that could possibly be the correct ants to supply 200 casks of ginger. Mr. P. W.
method of procedure. Goldring (of Messrs. Goldring and Barlow) appeared for the plaintiffs, and Mr. R. D. Atkinson (of Messrs. D1000, Looker and Descon) for the defendants.
Mr. Goldring said there had been dealings between the two firms for a considerable time with respect to ginger of certain brands. The question that would arise in this case was whether the goods were inferior and not according to sample. His clients contended that the custom among the Chinese in Hong- kong was to accept the report of a qualified surveyor in London on this point, and to make deductions where it was reported that the goods were inferior in quantity or quality. In the | event of his Lordship deciding that these sur- vayor's reports were not acceptable be must ask for a commission to England. It seemed to him that it would be a very serious thing if export firms had to send home in cases of this sort. He submitted that it was absolutely clear that the ginger was of inferior quality.
His Lordship-I should like to hear some evidence on the other side as to surveyors' reports. I not on them every day of my life, and I don't see why I should go back on myself. Mr. Atkinson-This report is addressed to somebody entirely unknown to us. It is dated months after the ginger arrived in England.
Tang Chee said he was up till December 31st managing partner of the plaintiff Arm. He entered into a contract with the defendants for the purchase of 200 casks of ginger. The ginger · ss consigned to London. The con- signees complained about t'e quality of the ginger, and on receipt of these complaints he spoke to the defendant firm. They replied "Get a report from London about it,” W tress wrote home, and received the report produced from his firm's agents.
Mr. Atkinson objected to the report going in as evidence. It was not addressed to say of the parties in the action.
In reply to his Lordship witness said the report was sent to his firm's agents in London. Mr. Atkinson said the ginger was despitol-d in September, and it must have arrived in London in the ordinary course of events early in November, and the report was dated six months after that.
His Lordship-I will tell you at once that this report, as it stands, is not evidence.
Mr. Atkinson-I might also state that this report is a report by the plaintiffs' surveyors.
Mr. Goldring ontended that it was the custom in Hongkong to accept these reports.
Mr. Atkinson-I submit it cannot be the oustom unless it is agreed to.
His Lordship-If they say the stuff is in- ferior they must prove it, and one of the best ways is to get expert proof.
Mr. Goldring said he had asked the other side to admit a certain document, and they would not
consent. He was now forced to send a commis- sion home, and the whole expense, he con ended, would fall on the other side,
His Lordship-If he loses.
Mr. Atkinson said the report was only the evidence of one set of surveyors, but it was absolutely necessary to have evidence on both sides.
Mr. Goldring-- I say the expense falls on the other side. The expen e of proving the fact must fall on them.
His Lordship-If you win you will get your costs. I had better adjourn the matter for six months. You will have to make your application for a commission in the ordinary Way.
Mr. Goldring—I will apply in Chambers.
Wednesday, January 15th.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.
LI CHI-CHIN'S AFFAIUS,
In the matter of Li Chi-chin, app llant, and Leung Shun-hing and another, respondents, Mr. M. W. Slade, instructed by Mr. J. H. Gardiner (of Messrs. Brutton and Hett) appear-
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The Chief Justice-What pussies me is the distinction between the fresh argument and the fresh evidence.
Mr. Pollock-The fresh argument would be upon the evidence already given; but fresh videos is the introduction of new facts to form the foundation for still further arguments which guld not have been made upon the evidence as it was taken in the Court below.
Mr. Slide stated that leave had been given to appeal to the Fall Court from a decision of Mr. Justice Wise in Summary Jurisdiction in which he decided on the evidence then before him that the appellant was a partner in the Tk Li Lung firm with a man named Lau Hing pong. In the Court balow Lin Hing-pong admitted being a partner in the firm, and judg- ing from his Lordship's notes, rav、 his evidence in a decidedly unsatisfactory manner. He produced a series of books, which he said were The Chief Justice-The ground on which the books of his firm and in which Li Chi-chin's
I gave my assent for lewe to appeal, was un- name appeared again and again as "Li Chi-doubtedly that further evidence would be given. chin, partner." The summary case was one for a small sum only, and had to be heard quickly Although Li Chi chia denied be was a partner and said he had never had anything to do with this firm, yet his Lordship could do nothing but say Here are the books, yo have not proved them to be forgeries' and give judgment accord. ingly. That judgment was followed by a series of judgments amounting in all to about $24,000. The issue therefore as to whether or not this man was a partner was of very ser ons moment to him, and Counsel proposed first of all to refer to the evidence given in the Court below. Then he would ask leave to call fresh evidenos
as to the booker,
The Chief Justice -Were the judgments in any of the cases given by consent?
The Puisue Judge I cannot say they were given by consent, bit in all the cases in which judgment was given execution was staved pending the appeal.
The Chief Justis-Why I asked the ques- tina was
technical this: there may be diffinities in the way with regard to the appeal, but it may be possible to re-try the case as an original action.
Mr. Slade That would be difficult without the consent of the plaintiffs.
Mr. Pollock-They are all summary claims.
Mr. Slade-Assuming your Lordship's judg ment in our favour. The cours taken wou'd be to apply to the plaintiff and ask them to consent to judgment being given gainst them. If they did not, we could then apply under the powers the Court has, for leave to appeal.
The Chief Justice-I think it was un lerstood that this appeal would govera all the other
cases.
The Puisne Judga—I intended it to.
Mr. Blade-Technical difficulties would be
entirely surmounted by an application for leave to appeal, although out of time, owing to the peculiar circumstances of the cas'.
The Chief Justion-You still might try the question in another action.
Mr. Slade-We are in a much better position on the appoal, and as I hve submitted, the evidence on which the decision must have rested must have been the books. All the books, some twenty, are in the custody of the Court, and five or six of these were put is as evidence in the Court below, The fist thing that strikes one on examination of those books is that the whole lot are written in the same handwrit. ing. On going into the contents of the boks it will be seen that on June 29th, a few days before the firm failed, Lan Hing-pong issued 18 promissory notes to various people for a very large sum of money.
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Mr. Pollock-I think I must take this point. My friend is not entitled to go int any matter of fresh evidence. The only way he would ba entitled to go into fresh evidence would be by formal notice of m tion filed, and supported by au affidavit. The Court cannot take cognis ince of any other entries in the boo s than those previously referred t1.
The Paisne Judge-All the entries could not have been referred to before me in the chief
16.88.
I should imagine soms would refer to osses in which I bave given judgment since,
The Chief Justice-The Court can look at the books and draw its own conclusions.
Mr. Pollock-The Court cannot look at them to say whether they do, or do not, contain certain entries, because the Curt would have to have the evidence of some translator to say what those additional entries in the books referred to. The Chief Justice-Cannot the Court make use of its own ofloers ?
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Mr. Pollock-Hss your Lordship decided in absentum that fresh evidence shall be admitted?
The Chief Justice-That was the ground; I could not do anything else. It may be neces sary to put the thing in more strict shape.
Mr. Pollook-Your Lordship asked Dr. Ho Kai if he wanted a new t isl in the matter, and he said he did not.
The Chief Justice-That was at the very begin ing; there was som› technical objection at the outset,
Mr. Slide The position with regard to appeals in the summary court is not regulated by the Cod, but by the Summary Jurisdiation Ordinance of 1873. I understood that your Lord- ships wou'd hear what fresh evidence there was to be hard, and allow witnesses to be called, if necessary.
The Puisne Judge-There was an offer made, which you did not accept, to rehear the case then and there.
Mr. Slade-Yes, but we were not then ready with our evidence.
The Paisne Judge—I don't mean on the sime day. An offer was made that a different judge
should rehear the cas.
Mr. Slade-I understand there Was & technical objection with regard to that. I do not see how that could be done, as an appeal must be by the Ordinance, and to the Full Court.
The Chief Justice-The question is whether there ought to be some special application to the Court to allow fresh evidence to be called.
Mr. Pollock-There ma« be an application. and that must be supported by an affidavit to express the nature of the evidence.
The Chief Justice-What has been
previous practice?
the
Mr. Pollock could not cite a similar oase. The Chief Justice-Then we must settle what the practics is going to be.
Mr. Blade The resp ›ndents will get the same protection as if the case was coming on for hear ing before the Court for the first time. They have the advantage that instead of the onus of We are pre- proof bing on them it is on 78. pared to show conclusively that these books are forgeries from beginning to end, of a most out- The other side want to rageous description. keep us to the evidence we could have collected in seven days. They want to shut out evidence.
The Chief Justice-This is an ex parte mp- plication for leave to appeal. I should have thought there would have been soms farther applicati a to the Court for definite leave to produce evidence.
Mr. Slad Your Lordship could have ordered
that.
The Chief Justice-It seems to me that the party who wants a rehearing should give the Court some notion of what this new evidenes in before we plunge into a rehearing. I have no case before me at present that would induce me to grant a rehearing.
Mr. Slade-What I was submitting is this : Dr. Ho Kai stated we wanted a rehearing-
The Chief Justics—No grounds were given. Mr. Slade-We want to present the osse more fully than in the Court below.
The Chief Justice-Bat if we hear the defendants we will have to hear the plaintiff's case again.
Mr. Blade-It does aɔt necessarily mean that you have got to go through the whols thing from beginning a sud.
The Chief Justice-We must stile the practice now.