August 21, 1909.]
Witness then produced a sketch of what he saw at Junk Bay and explained the mechanism of the de-aerator which was there and the other machinery.
The next witness was fr. Eric Wolff, from the office of Messrs. Arnhold, Karberg and Co., who spoke to having visited Junk Bay during the erection of the ice plant.
Cross-examined-Did Mr. Borsig send out a description of what he called the distilling plant to your firm ?--Yes.
And this is what is supplied to the Milling Company? Yes,
Included in his distilling plant is this de- aerating apparatus?—Yes.
The evidence of Frank Lee Strong, con- sulting engineer at Manila, taken de bene esse, was read.
He had an experience of ice plants and refrigerating machinery, and remarked that the can system was more generally in use in America. He had been shown some blocks of ice which he was informed had been made by the Hongkong Milling Company's plant, and in his opinion that ice had not been made with due care, there being more core than there should have been. In his contracts he named thirty days for the trial. He did not consider a week's trial sufficient for a new plant.
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CHINA OVERLAND TRADE REPORT.
Thursday, 19th August,
IN CRIMINAL JURISDICTION.
165
BEFORE THE CHIEF JUSTICE (SIR F. PIGGOTT).
THE TAIKOO DOCKYARD MURDER.
glass? Clear meant primarily something which is free from all obstruction, and fortunately the Court had a mass of uncontradicted testi- mony as to the meaning of the word clear. If the Court was going to pay regard to the weight of evidence and not to fanciful suggestions devoid of foundation, it was bound to hold that "clear" meant transparent unobscured by opaque portions. On the question of clearness the whole matter resolved itself into a question of Only one case was set down for trial at the fact to be judged by the eye. Was the Milling August session, Wong Yak Sheung being Company's ice, size for size, as transparent as the indicted for the murder of a fellow workman at Hongkong Company's ice? Were there more Taikoo Dockyard on July 9th. Prisoner pleaded obstructions to a clear view through the Milling not guilty. Sir Henry Berkeley, K.C., in- Company's ice than through a piece of similar structed by Mr. Dennys, conducted the case for size mauufactured by the Hongkong Ice
the Crown, Mr. J. W. Orr, instructed by Mr. Company? Later, Mr. Slade said he was using. W. Gardiner, appearing for the defence, while the word "clear as a term of art in regard
Mr. Leo d'Almada e Castro, from the office of Messrs. Goldring, Barlow and Morrell, attended in the interests of the relatives of the prisoner.
The jury was empanelled as follows :-)
-Messrs. C. W. Longuet (foreman), F. G. Carroll, A. E. McCallum, Ezra Abraham, C. H. Lyson, H. Pemberton, and G. A. Diss.
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to ice.
The Chief Justice - But, you can't take a word of art to mean what it does not.
Mr. Slade-I beg your pardon. A dozen can mean thirteen and 100 can mean 120.
The Chief Justice- Why?
Mr. Slade-It is slightly less clear because of minute hairlike streaks in it which are caused by the passage of air.
The Chief Justice -What I want to point out is that one class of your ice is clear.
The Attorney-General stated that the deceas- Mr. Slade-It is as clear as some other iceed and the prisoner were fellow-workmen and which is produced.
they were engaged on the ship Hangchow, then in dock for repairs. The deceased and one of the witnesses were working inside the cabin rivetting and the prisoner and another man who had disappeared were employed outside. The deceased received a blow on his head which fractured his skull and caused his death some few hours later. There was no dispute between the Crown and the prisoner as to the fact that the deceased received a blow which caused his death. There was no dispute between the Crown and the prisoner that it was
It
Mr. A. H. Ough, architect, said he had made experiments with the ice of the Ice Company and of the Milling Company, and found that the Ice Company's ice melted three minutes quicker Later, Mr. Slade said-What I have than that from Junk Bay. However, it melted endeavoured, to point out is that the quicker when the core was reached, so that there use of the word in this connection is in contra- was scarcely any difference between the two. distinction to opaque. Taking it on the other The Chief Justice-How do you know it was line. to say clear means the opposite of cloudy Junk Bay ice?-I was told so.
is to limit the word in a way which is not Mr. McNeill -Mr. Looker obtained it himself. justified. On the one hand you have a piece Mr. Slade-We will accept it as all right. of ice the view through which is obstructed for This concluded the case for the defence. a portion of its surface, you have another piece Mr. McNeill, in summing up, said the fact re- of ice the view through which is slightly mained that Mr. Arndt did not know the exact obstructed by a number of fine opaque lines. terms between Mr. Rennie and the Ice Company The view through the Milling Company's ice or the terms of the guarantee. It was certain was obstructed by a series of coarser lines. that if Mr. Rennie did not know can ice must was only a question of the lines which makes have a core he had ample means of knowing, and the difference between what your Lordship enough evidence had been produced to justify terms cloudiness and what I am terming ob- their Lordships in concluding that Mr. Rennie structions to the view through the ice. A series when he bought the can ice plant did so with of fine lines will give the effect of cloud. his eyes open. What the plaintiff had to prove series of coarser lines would give the appearance was that there was a warranty of a particular of a net. I ask your Lordships to adopt one kind, and that that warranty was broken. He of two meanings applied to the word clear. To submitted that the warranty was not a warranty make a mixture of the meaning, clear and its with the meaning that the ice to be supplied opposite cloudy, is to stretch the meaning of the was to be in every respect identical with the word and attach two meanings where only one ice of the Ice Company, but only ice of clear- is intended. ness and purity and of a merchantable kind. They said the plant WAS never taken over in full working order, and there- fore the warranty did not attach. They said also that for all the practical par- poses for which that warranty could have been intended it was substantially performed.
Mr. Alabaster followed, dealing with various smaller matters. At the outset he referred to the special damage claim, which was for seven. eights, $175,000, of the original claim, which was for $200,000.
The hearing was adjourned.
Wednesday, 18th August. Mr. Slade summed up for the plaintiffs. He said that Jardine, Matheson and Co. might have been wrong in refusing the Milling Company's ice, and yet the plaintiffs might have been justified in refusing to accept the plant. Pro- ceeding, he asked what was the meaning of "clear" in connection with ice. In the English language the word clear had many shades of meaning, and the precise meaning of the word differed with regard to the subject matter to which the adjective was applied. Not to take more remote instances, the word "clear" as applied to a colour or a jewel meant something quite different to "clear" as applied to glass.
C
As
A
Mr. Slade then submitted that their Lordships should hold to the wording of the agreement and not to verbal conversation or correspondence. The catalogue, he contended, should be read as an ordinary man would read it. Nothing was said in that catalogue about the ice having an opaque core. It was stated that the plant would produce clear ice, and on that understand ing Mr. Rennie entered into a contract with Jardine, Matheson and Co. Mr. Slade further argued that they were entitled to general damages, including so mach probable profits. and to special damages. He contended that law as a rule was sound on the subject of damages.
The Chief Justice-There is very seldom an appeal to common-sense, and perhaps you had better not carry it further.
any
i
Mr. Slade-I am not suggesting your Lord- ships have not got common-sense. (Laughter.) I am only trying to provide your Lordships with facts upon which you can exercise it.
In conclusion, Mr. Slade said it had been remarked that they did not take the plant and run it to advantage, but why should they? Why should they take the risk of running it when it was not what they asked for
The Chief Justice-The point was that you might have made large profits.
Mr. Slade-We should run the risk of the competition of the Ice Company, who would promptly drop their price half a cent and break us.
The Chief Justice-The defendants ought not to be saddled 'with extra costs because the
Chartered Bank would not find the money to run the plant.
Clear" as applied to colour meant not dim, not cloudy, not a muddy colour, or it might be brilliant. Certainly as applied to a jewel it undoubtedly meant brilliant and bright. applied to glass it undeniably meant transparent. Clear glass that would be seen through with out obstruction. It was right, for the Court to admit evidence to show what clear meant Mr. Slade It does not follow that Mr. in connection with ice. Did it mean, as his Rennie'would have taken the plant. learned friends had intended, bright or spark- After further remarks the hearing ling, or did it mean, as they submitted, trans-closed., and their Lordships reserved parent clear in the same sense as applied to decision.
was
their
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with that hammer that the blow was struck.
an
Nor was there any dispute that it was the prisoner who caused the blow, but the issue between the Crown and the prisoner was as to the manner in which the blow was struck and received. The prisoner in his defence before the Magistrate declared that; while he was working outside the hammer fell from his hands through the porthole and alighted on the head of the man working inside and injuring him-in other words, that it was a pure accident The Crown, however, asserted that the prisoner struck the man deliberately and that the prisoner left the side of the ship and was seen in the cabin with the deceased at the time het struck the deceased on the head. If the jury believed the witnesses for the Crown, they would find that the prisoner struck the deceased in the cabin with the hammer. If they accepted the statement of the prisoner that it was accident, the man would not be liable to any consequences. But before they accepted the statement of the prisoner they would have to reject the positive testimony of two witnesses which the Crown would call, and in considering the evidence in support of the prisoner's statement he would have to draw their attention to a part of prisoner's evidence given before the Magistrate to the effect that at the time of what he called, the accident the man working with deceased out- side had for some reason gone away. The practice was that if one rivetter went away work ceased, and if the jury came to the conclusion that what was usual took place--that work was stopped then the fact that one rivetter. was away would destroy the theory of the prisoner that the hammer slipped through the porthole while he was working and struck the deceased.
Mr. Piercy submitted a plan of the scene of the occurence.
Dr. Moore, assistant superintendent at the Government Civil Hospital, said the deceased was admitted to hospital with a fractured skull, the bone of which was driven in. An operation to relieve the pressure and to arrest the hemorrhage was performed, but the deceased died shortly afterwards. He considered that it would require a fair blow with the hammer shown to have caused the injury he saw.
Cross-examined- He was not prepared to swear that the injury could not have been caused by the hammer falling from a height of four feet on the deceased man's head. He did not think the injury had been caused by a glancing blow.
The foreman rivetter deposed to seeing the prisoner strike the deceased on the head with a hammer as the latter was stooping. Witnesa was then on the deck about 28 feet off. When