SUPREME COURT.
Tuesday, 21st Murof.
IN CRIMINAL JURISDICTION.
BEFORE SIL H. S. BERKELEY (CHIEV
JUSTICE).
MANSLAUGHTER.
Emanuel Hernandes, a Spanish sailor of the enlling ship King George, was charged with the manslaughter of Theodore Olsen, a Danish asilor on the same ship. Hon. Mr. E. H. Sharp, K.C. (Attorney-Gaueral), instructed by Mr. Morroll (of the Crown Kofielloe's offles), pro- secuted. Chiof Dutretive Inspector Hanson acted 68 German interpreter for same witnesses, and Mr. N. G. Nolan as Spanish interpreter. Prisoner pleaded not guilty and the following jury was ompanello-Messrs. C. M. G. Barnio (foreman), J. D. Kleweird. D. E. Clark, W. F. Must, C. G. Brückner, J: Fisher and T. E. Collingo.
The Attorney-General in opening, briefly narrated the facts of the tragedy. On the 14th inst., just a week ago, at six in the evening, the prisoner, the deceased and for other sailors were ring their supper in the fo'c'sle of the
King Georg. A short canversation took place between the prisoner and the dead man with regard to the following occurrence which happened that afternoon: The prisoner lad boon ordored by the third mate to do some work in the rigging, and he failed to do it On speaking about this matter at sapper it oppours that the prisoner tasted that he had aze soms very violent langauge to the third mate. The deerased man denied that prisoner had done so, and called him a liar, bastard and other games, and then struck him in the fans, Thereupon prisoner rolled over on the bench and the dead mau rolled over on top of him. During the struggle prisoner draw his sheath knife and planged it into the abdomen of the dead man, indisting an essentially fatal wound.
The prisoner said that the evidna wus correct. He did not intend to kill the man. Deceased had been bullying him all the way
from Philadelphia.
THE HONGKONG DAILY PRESS, WEDNESDAY, MARCH 22x¤, 1905.
December and the other 155 tins on 2nd January last. All the tins wars shippet for Singapore on the 3rd or 4th of January. On one or other of those datos Weismann one ed the Hip Lang to desist from further per- formance of their contract. On the 12th of January, demand was made for the price of the biscuits already supplied. Payment was re- fasod. The biscuits, the subject matter of this action, arrived back in Hongkong early this month. March 1905.
The description of the goods is "good ship biscuits." The word "good" is superfinous as a description of the goods, and means no aora
in an action for the price of the goods, a breach of warranty in diminution or extinction of the prios. I must therefore inquire whather thie remedy for breach of warranty is made good by the defendants.
There was some evidence that the biscuits which bad become mouldy might have been packed bofore they were thoroughly dry. That was the way in which Captain Toughs accounted for the mould in some of the biscuita Assume
By the term breach of warranty" is meant then that some of the biscuits were not properly dried when packed. Dove this constitute non-() brisek by the seller of a warranty which is correspondence of the bulk with tko sample in a warranty by the terms of the contract (2) a breach of a condition, ́express or implied, quality which includes state or condition ? I think that it does, if the sample was in which the buyer has elected, or has been com. a dry state; the b'ecuiis did not thorofore pelleri, to trest on a breach of warranty.
Hera there has been to breach of a warranty. The written contract of the 28th of December, correspond with the state or quality of the suto. being a contract of male of anascertained goods plo if they were in a damp stato. But the appearing on the face of the contract. Has both by description and by sample, there is, soovidence does not satisfy mo that any of the then the buyer elected or been compelled to far as regards the description, an implied c
hireaits neu tot properly, dried before being treat the breach of condition as a breach of lition that the goods shall correspond with the pucked. The two months which slapsed between warranty Assuming, contrary to my opinion, description, and, so far as regards the sample, the despate of the blacuits to Singapore that there has been a breach of condition, and their return to Hongkong, which would have entitled the vendee to re- there are implied conditions that the bulk shall correspond with the sample in quality, that the the slunces of bad soldering may adegnat ly pudints the contract, at once. I think that,
account for the present condition
of when the vondee in this case accepted the goods. bayur shall have a reasonable opportunity of
some of the biscuits. On the other hand he elected to treat the breach of condition as á comparing the bulk with the sample; and that the goals shall be free from any defect, roulering Weismaun made it clear that the bisoulls first breach of warranty aud to go on with the con- thom zumerchantable, which would not be delivered in puranance of the second contract tract. I think, too. that his right to set
were biruits which had beou baked for him against the seller the branch of warmaty appareil on reasonable examination of the
in prauance of the first contract. This makes in diminution or extinction of the price sample.
it improbable that any of the biscuits delivered continued in force until the seller brought an were in a damp condition not corresponding action for the price. The onus is on the to the sample C, a-suming that sample to have vendies to prove the amount by which ha been dry of which there is no evidence. My seeks to diminish the price and to prove that conclusion is that the implied condition that the the goods are worth ail by way of exting balk should correspond with the sample in quality tion of the price sued for. If he sets up either was fulfilled. Then, had Weinmano a reasonable a reduction or an extinction he must prove the opportunity afforded him of comparing the difference between the price contracted for and bulk with the sample? As a rule the place of the real value. He has not made eny attempt delivery is the place for comparing the balk to prove this. It is not sufficient. in extinction with the ample. That place was, under this | of the price, for the vondes to state that the contrast, the Star Ferry Wharf by St. George's goods are worth nil to him for the purpose Building. There is nothing in the enntruct for which he bought them. Ho might or in the eircumstances to rebut the presump have sold the goods by action. If the tion that the place of delivery was to be the goods bad ferched my only 25 per cent of the place of inspection. Under the first contract.
contract, price or there had been no bid for the place of delivery was the place where inspor- the goods, then there wight bare been some An article may be said to be of merchantable | tion took plass the previous conduct of evidence to go to a jury in dimination or extive quality when it is saleable us a commercial Waisman therefore confirms the presumption. tion of the price for which action was brought commodity under the description by which it No inspection was as a fact made, though How far lapss of time between the delivery and is sold. Because the purchasers from Blackhead reasonable opportunity was afforded. Jadged the rutarn of the goods would hare discounted and Co. who brought from Welsmann and Co, in the light of Weismanu's prorious act in the valus of that evidence, I cannot say. There rejected the goods, that is no reason for holding having the tins delivered under the first will be judgment for plaintiffs with costs. that the goods were not of merchentable quality, contract opened on the Praga for inspection, There is no evidence why the ultimate consigners it looks as if he was satisfied by the facilities rejected the goals. Even if they rejected them he and Peick had had to saperintend the because they considered them to be unsaleable packing, that the biscuits were up to sample. such unsaleableness may not have been dus I hold thee that the second implied condition to the article
was fulfilled. As regards the third implied condition, arising on a contract of sale by sample, I think that it has been satisfied because there was no defect, so far as is known, in the sample which was not apparent or reasonable examination of the sample so is to render the goods unmerehuntable.
than that the goods are to be of merchantable quality; nevertheless its insortion has the effect of substituting an express condition of merch antableress for the implied condition that goods shall be of merchantable quality which exists when guals are bought by description from a seller (whether he be the barnfcturer or not) who deals in goods of that description. The advantage to the buyer of this express condition is that unexareination or inspection of the goods which he himself has made will debar him from relying on that express condition against of defects which sich inspection or examiuntion shootd have rorrated,
Prisoner was convicted of manslaughter. His Lordship in his remarks to the prisoner said-You did not kill him intentionally, for if the evidence had pointed that way you would have been olurged with murder.
not being per se vendible From the evidence I din satisfied that commercial commodity by its description, but this young man, about your own ago, was ease there was ne market at the time for the a. bully, and TEN bullying you on that goods. What I have to consider is, asanming occasion, Bobrought his death upon himself in that there was a market for the goods, would one sense. That does not justify yea for doing the goods sold passes the commercial commodity that act. You ought to have gone to the Cap-known as ship's biscuits? I have no doubt tiut taiu and complained I feel that at the time the goals supplied by the plaintiffs answered to you did not think about the Captain or their description as ship's biscuits, and am of Anyone else, but in
the heat of pasion opinion, after examining the biscuits as a jury you stuck your knife in him. I always would, that they were of merchantable quality, have considerabla sympathy with a Inan i.e. saleable under the description by which they
that were gold. struck, especially in the face. but Rympathy does not extend to ona who uses a knife. That must be stopped, and you must understand that a knife must not be ud Creept in the grwent circumstapoos. You are a very young man, only 22, just starting in life. In consideration of your youth I shall only svotence you to thres yours hard labout, and let this be a warning to you-under no circumstances use a knife.
"₤1
P
PARIS.
[FROM OUX CORRESPONDENT,]
17th February.
FBENCH PRETENDER'S MARRIAGE, For want of something more startling and interesting the approaching marriage between Princess Clementine, youngest daughter of the King of the Belgians, and the French pretender,
'KODAK
FILMS
& ACCESSORIES.
DEVELOPING AND PRINTING UNDERTAKEN,
LONG HING & CO..
PHOTO GOODS STORE,
17, QUEEN'S ROAD
(SAME PREMISES AS MESSRS, ÅH CHEE),
Hongkong, 27th December, 1904. grest Court favorite-Princess Clementine attended by one of her ladies-in-waiting happened to pass by; on seeing her father he turned away her bead. White with passion, His Majesty called Lis daughter, and asked bor to apologise. She refused. Father and daughter next walked away a few pace so as not to be heard, when more hot words were freely ex-
changed, the Princess leaving him in tara. As soon as she could, she told what, ad Iuppened to her awrelluscs Prince Victor, meanwhile accepting him as her futurs hatband, and vowing that this was her will and desire. The only condition imposed by her was, that he should
the means of realizing their ambition. The
139
TRADE
MARK
TELEPHONS No. 135.
TANSAN
TANSAN
leave to the Frincess the choice of the day, and King had his daughter isointed by way of paternal correction in the Laeken Palace, where PER CASE OF 48 PINTS... sho received only those visitors whom be per. mitted to see: her correspondence wasopened, and she became a veritable prisoner. The attempt on PER CASE OF KEV SPLITH the part of her aunt, the Countess of Flanders, to anften the King's heart towards his daughter, met with no success. Three weeks ago, the Princess feeling weak, nervous, and depressed, sought. permission from her cruel father to leave her prison. He finally consented, on the advice of Dr. Thirir, to allow his daughter to go for a time to St. Raphael; it is here, where the conditions of the marriage will be settled. SOLE AGENTS— Whether the Emperor of Austria, and the King of Italy scored or not in obtaining King Leopold's consent to the wedding of his daughter to the French pretender, matters but little. Nothing will turn the Princas asido from her intention to become Prines Victor's wife, the news of which has caused no small sensation throughout France, bosides providing society with plenty of gossip,
THE ROTH BEA AFFAIR.
The North Sea Inquiry Commission, is drawing to a close.
Russiane baring completely failed to convince the world of their innoceros respecting the Doggor outrage have at last olinahed down, from their high pedestal, and indulged in aandest mea culpa. The only thing they could possibly do, with the exception of exonerating Admiral Rojetvensky from blame. The Com- missioners have been most impartial throughout the
New if I am wrong in my conclusion that Prince Victor Napoleon, is being discussed for fittings; they have noted the part of gentle.
the quality of the bulk corresponded with the quality of the sample, I shall have to inquire what was the legal effect of the conduct of Wimus in not availing himself of the reasonable opporturity afforded him of compar. ing the balk with the sample, and in delivering the biscuits to Blackhead and Co. in pursuance of his contract with them. A buyer leuat deemed to have accepted goods delivered to him which he has not previously examined, unless and until he has had a reasonable opportunity of examining them for the purpose of setertain
all its worth. The coming bride is no stranger to France; whether in Paris or on the Rivier she is ever the object of respect and pity, for Her she has gone through a world of trouble. charming appearance does not prevent her from having beneath her winsome manneť, a will of iron-honce her dotermination to marry Prince Victor at all costs. Circumstances alter cases a fow years ago, when King Leopold and his daughter were on friendly terms, he had built purposely for her at Villefranche a superb domain, where the Princess-who had then olacted to romsin single-could live in the style bofitting her
men, and will have dosarved wall of the world for their conduct. The British Commissioners have done all they could to save Russia from humiliation; and though she has now confessed her faults, they will let her down a softly as possible. Having made all sincere amends for the regrettable affair, the Russian Government cannot do more than indemnify the innocent victims of the fire of its squadres. It will teach other Russian admirale a lesson, and cause them to be more careful in fature,
Next with regard to that portion of the contract which undo this alo a sale by sample. In such ense, the Implied conditions are three (1) that the bulk shall corres
A NEW OPEĽA. pond with the sample is quality ) that
As anticipated, Massenet's latest production the buyer shall have a reasonable opportunity
Cherubin has turned out a glorioss success, mach to the delight of the musical world. The of comparing the bulk with the suple (3) that
play, an opera in three sets by M. M. Francis the goods shall be free from any defect, rendering whether they are in conformity with the
de Croiset and Henri Cain, with musle by ing them unmercbautahlo, which would not b
contract, This opportunity to examins is a
Massonet, was produced for the first time a few reception accorded to Cherutin on that occasion Clou of the constitute acceptance. The buyer is deemed to stop to the perpetual wanderings of her father, entitles it to be described as the The first question thon is did the bulk of have accepted the goods when, inter alia, the he could have gone to that havon of rest, and American artists, filled the title role as chief Riviera BORKOU Miss Mary Gardet, a young P. W. Goldring (of Mr. G. K. H. Bration' the biscuits correspond with the sample in coods have been delivered to him and he does pent his declining years in company with his interpreter; the lady's success on the operatic ofice) appearod, for the plaintifs, and M. quality? a ler which includes the state of any act in relation to them which is incon-daughter Clementine. Since the Princess pro- stage of Francs has been as rapid as it has been H. E. Pollock, K.C., instructed by M. condition of the goods at the time of delivery sistent with the ownership of the seller.mierd her hard to Prince Viotor, and is rosolved deserved. The least that can be said of her is,
HEP LOONG V. WEISMANN, LIMITED.
Mr. Sercombe Smith delivered judgment apparent on reasonable examination of.thedition precedent to acceptance, but does not Royal ronk, and where as soon as age had put a evenings ago si Monte-Carlo. Tho enthusiastic
in the case of the Hop Loong v. Weisman, Limited, on Monday the 20th inat; Mr.
Almada e Castro, for the defendants.
His Honor said This is an netion in
sample.
performeros of the contract is satisfied because
by plaintiff to defendants. This case bas The first of theen proofs of acceptance in nothing to do with the quality of the goods when they reached Singapors or had lain in which the plaintifik mook to recover from the Singapore fer a month. There was no condi. defendarte a sum of $648, being the prien of tion express or implied concerning the quality 10,800 lbs. of biscuits, at 6 conta a lb., sold and i of the goods at any time other than the time of is also satisfied. The delivery of the goods to
delivered to the defendants.
delivery.
Pieraé,
were
that when a new opera is produced, M. Massenet to marry him against the King's wishes, all is the foremost composer of France-can and no worthier interpreter of the principal character than Misg Garden. In 1900, the | Che
Young American ortiste was given the creation of Louise one of the most popular and snecess. ful of Froach operas. Next La Fille de Tabarin
Then some special performances of Manon
given, the decision of the critics being that Miss Garden's Manon was superior to all others scon before. in Telleas and Melisande, by Dabases, the young actress gained many steps towards the temple of fame; later come Reise Finmelte, and not long ago. Miss Garden Frented
Helene by Baint-Saens Cherubin is role quita anlike
any of her others, in which for the first time she acte in travesty, taking the part of a young mun, s
Sexyone. The music ta light and full of
changed, and a definite separation between the two is the result. Had all been well, Princess Clementine was to have beon wedded to heroonsin, Prince Baudoin, who was killed in a duel; it was in consequens of the intense grief which his sith caused her daughter, that her mother the Queen of the Belgiane connsalled ber to enter s convent. Though a good Christian like her sis. lors, the offer was declined. Princess Clemontine preferred to live with her masther at Spa, lead. ing a quiet and joyless existence; this she did. antil one day the late Queen, who was a superb
to an obstinate naimal, when her daughter Clementine interfered and remonstrated. In a melody. moment of nervousness and ill-temper, caused by the intervention of the Princess, the Queen
There were two contract between the parties.
An examination of the rejected goods shows The first contract was entered into on the 16th of December 1001 and was for 50,000 Ihs, of that some of them were mouldy; many of them biscuits at 6 cents a 1b. Under this contract broken up: and the majority of them not of 200 iius of biscuits, cach tin holding 54 lbs., exactly the same viss as the sample by which were packed. Of these 200 tins. 100 tins were they were sold: The dissimilarity in size and delivered 10 defendants on 5th of December, hut the fragmentary nature of some of the biscuits ware Tojected by them as not being up need but little consideration. There was no to sample. These 100 tins were taken back by condition either that the biscuits should corres. the plaintiffs and kept with the other 100 tine pond in size or shape to the size or shape! of usascertained goods by description. In sich equestrienne, administered a severa pommeling veritable Don Juan, whose escapades delight
of the sample; or that they should ha whole biserits. There is no evidence that the biscuits were not whole when packed. On the contrary I should infer that key were whole when packed;
in their bakary. On the evening of the 28th of Deember a fresh contract was made in the following terms;-
"Hongkong, 18th December, 1904.
WEISMANS, LTD.
it is not likely that either Weismann.or Peick to the contract, the property in the goods Last command of herself and struck her daughter
ons or other of whom was present during all
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the goods were delivered to the defen. drafa. I think the second proof of acceptance
Blackhead & Co. under an independent contract was an act inconsistent with the ownership of the plaintiffs or sellers. There was no contract between Hip Lung and Blackhead & Co., and Weiszaun was set entrusted with the goods as Hip Lang's agant or bail to pass them on to Blackhead & Co. Let us look at this matter from the point of view of the property having passed to the buyer. I have said that this con- tract is, in one of its phases, a contract of sale
case, when gonds of that description are in a deliverablo state (e. such a state that the buyer would under the contrast be bound to take deliveryof thum jare unconditionally appropriated
THE PHILIPPINES QUESTION.
I the undersigned promise to supply you
thereupon passes to the buyer: and where, in with her riding whip fall in the face.
The Navy Department at Washington cun- with twenty five thousand pounds of good the time when the biscuits wero hoing packed, pursuance of the contract, the seller delivers the same evening, Princess Clementine laft Spa, firms the report that an American squadron has ship biscuits acording sample packet in cases would allow broken biscufts to be packod:goods to the buyer and does not reserve the nover again to raturo, save when her mother
been ordered to proceed on a cruise to the south of the Philippines. It is admitted that supplied by you and to deliver them to the for thore is evidence that both actively right of disposal, hu is deemed to have un- was sinking.
this is not part of the normal naval programme wharf opposite St. Georg Building at the rate prevented questisiactory biscuits from being conditionally uppropriated the goods to tha
for the Far Ex-tern squadron, and it is of six (6 cents) cents per pound-
As for the romantic history of the courtship generally assumed that the Herald is corroot in Tims of delivery the ninth day, of January Packed The bandling and shaking of the tins contract. The defendants then did an got in
relation to the goods which was not only in-between the Princess and the French pretender, explaining the movement as having been taken 1905. Payament to be done by the 12th day of quite enough to account for the biscuits be consistent with the ownership of the sellers, but it may be briefly described as follows: It was at the suggestion of the State Department, in
coming broken. Were then the goods mouldy also entirely constant with their own property while being welcomed everywhere as the Young order to demonstrate the intention of
States not to allow its territorial waters to be IMPORTED EVERY MONTH, THERE.
FORE ALWAYS FRESH This is a contract of sale of goods both by when delivered to the defendants? There is in the goods. I am accordingly of opinion that Queen, and when she did the honours of the utilised for the advantage either of Japan or of not the lost evidence to show that they were. Weismann and Ca accepted these 200 tins of Boys) fêtes, ou her return from Laeken that Raasis. It is not supposed that there is any either by discription and by sample. Two samplessigned foot aaru thut Weisman and Peick would not biscuits. Thers was an argument addressed to notice was first taken of how
mo.o than actual danger of any such action
belligerent,
so that the naval measure now beingLEY'S, SCHULTZE'S, AMBERITE and KYNOCKS SPORTING "Hip Lung" were produced by the defendants, have passed such biscuits at the packing on theme to the effect that Weismann, having rejected gracious Princess Clementine wax towards taken by this country must be locked upon as CARTRIDGES 8, 10, 12, 16, and 20 BORE, who allege that one sample C was given on the
the goods within a reasonable time, could not Prince Victor Napoleon, who was a frequent one of precaution, which in similar circam and NEWCASTLE CHILLED SHOT occasion of the frat contract and the other 30th of December. I know that there was no sample D on the making of the second contract: stipulation, as a condition of the sale, that the he held to have accepted the goods. It is visitor at the Belgian Court. Although the stances is would be the daty of any strong all Sizes, Nos. 10 to 88SG. AIR GUNS and
AMMUNITION in Variety, whoress the plaintiffs allege that both samples buyer was to examine the goods, aud that there enough to point out that I have not based the young people were evidently on the best of
Jadeed, people here have learned with a good
WM. SCHMIDT & CO. Hongkong 28th November, 1912 related to the first contract. On this point I fore a voluntary examination by the purchaser soceptance on the ground that Weismann failed terms, it was not then considered that their deal of surprise that there are at present at or at the times of packing would not exempt the troject within a reasonable time. The next friendship was likely to lead to more intimate armoured cruisers, several other cruisors, Cavite no fewer than three battleships, have come to the conclusion that sample ✪ wan the sample under the first contract and sample vendor from compliance with the implied question is, what results from the acceptance by relations. Eyes were soon open, and doubts on and quite a considerable flotilla of torpedo craft. the subject dispelled, for after consulting This large force will be maintained in the Da sample under the second contract. My cudition that the balk and the sample should the bayers in porforinanes of the contract? thut two samples under the correspond in quality. Nevertheless, the part This was not a severable contract of sale; and
certain ecclesiastical dignitary and taking Philippines as long as the war between Japan where a contract of sale is not severable and the counsel with her aunt, this Countess of Flanders, and Kassia
continues. first contract were unnecessary, and that, as taken by those two men at the packing con.
If Japan should emerge victorica+ from that the second contract was by sample, it is vincus me that it was highly improbable that hayer has accepted the goods, or part thereof, Princess Clementine confessed the truth to her
war, it is declared by level-headed atplosmen highly improbable that no sample under that mouldy biscuits were packed. There certainly the breach of any condition to be fulfil by father. The interview was an exceedingly and naval officers here that the United States was no condition express or implied that the the seller can only be treated as a breach | short and unhappy ons. "Never!" said the will have to double even that large force and maintsia it permanently in the Far East. In pursuance of the contrast, 20 tine held biscuits would not become menlly within a warranty, and not so grund for rejecting toning. "Never Finding her father in such This is one of the arguments saed by the ing 10,800 lbs., wore on the 30th Deorüber, given time. No wonder would be likely to goods. So that if there had been any breach of
some effect. a mood, the daughter quickly retired from bis anti-expansionists with packed by Hip Lung's fokis in the presomes of agree to much condition, because the treatment a equdition, such bresch would not entitle the
presence; they had ceased to bo friends. Not probably ninety-nine Americans out of a oither Weismann or Pricke kis assistant, and of the biscuits in the hands of another party defendants to roject the goods. But it was long after this, another stormy meeting took Bundred, Democrats and puta salar FLOOR. WATKINS BUILDINGS
agrou with President Roosevelt that the Stars soldered by tin-smiths on gaged by Weismann, would be beyond his control and might be such argued that though the buyer may not roject place; sa King Leopold was walking along, in and Stripes, having ones been phaoed over the
as to most effectively produce mouldiness.
the goods, yot Le way set up against the seller,
bandsome woman-a Philippines, can never be lowered.-Globe.
January.
Tenous are
KIP LUNG."
contrast was taken.
Of these 200 Wins, 45 ties were delivered on 31s
with the biscuits inside would moreover be
company with a very
Power to take.
three
the United
But
CARTRIDGES.
DR. NEWELL WILSON,
DENTIST.
Latest American Methods, Beasonable Fees.
No charge for examinations. Ofiles bours 9 4,5. to ỗ P.M
81, Queen's Road Central
Hongkong, 19th October, 1904.
245