1902-02-06 — Page 3

SUPREME COURT,

IN APPELLATE JURISDICTION. (Under article No. 33. of 1901.),

LUK LAI CHP 7. KINGHORN (ND MACHOS LD,

THE HONGKONG TELEGRAPH, THURSDAY, FEBRUARY 6, 1902.

action was Did the letter of zith October, 1900, written by the defendant, constitute.an acceptance by the defendant of plaintiffs oral offer of the 18th October? That offer was a um of $345,000 for Kowloon Marine Lot No 39, payable ten per cent, within a week and

It must be understood that as I have, com- mand of very large forces, I can easily suppress any miscreants,

Let every one obey this proclamation. (1)-Anyone who spreads wikl rumours to lead astray the maltitude shall be executed..

(2)-Anyone who teaches or practises charms, being either a leader or an accomplice, shall: be executed.

Intimations.

HONGKONG AMATEUR ATHLETIC

SPORTS

TO-MORROW,

(FRIDAY), the 7th February, 1933. (Under the Patronage of H.E. Major-Genen! Sir W. J. GASCOIGNE, ECM.0.) By kind permission'of Lieut. Colonel The (3)-Anyone who joins a company to robon. R. H. BERTIE, C. and Officers, the Band of the and Bavation, Royal Welsh others or force others by using arms, shall be Fusiliers will play Selections during the after- executed,

In giving judgment in the above cin, Pisal mee ithin six months. There was also a Lonlship the Acting Chief Justice soul 4 --'

In this case the facts appear in the plead ings, but it may be useful to shortly recapitulate them. About October, 1900, one Kingsley, then restlent in Shanghai, was the registered owner of K. M. Là 39, and the defendants were agents for the purpose of obtaining offers for the pur. chase of the said Int. On October 20th, the defendant Kinghorn wrote a letter on which the whole of these proceedings hinge. (Letterread) Kingsley then repads ted the authority of the defendants to bind him by that letter. On the strength of thatfetter the plaintiff'sued Kingsley for specific performance. Su John Currington | (CJ) gave judgment for Kingsley on the ground that the defendants were not authors ised to make such a contract. The plaintiffihen commenced this suit against the defendants and claimed damages for breach of watmantry. When the case came on' for hearing before me it was admited on behalf of the defenelants that on the face of in, the butter of October 20th, 1900, was a binding contact, but oral evidence was tendered to show that it was not intended by the parties to be a contract at all, but was only in the nature of a memorandum of terms which were subject to modification by Kingsley, in Shanghai. I refused to admit the evidence and gave judgment for the plaintif with costs. The lofendants appealed and after argument, the full Court ordered that there should be a new trial at which such evidence should be admitted. The defendants then under the provisions of the Code of Civil Procedure (Ordinance 5 of 1901) applied for and daained an order that the case should be beard before a Judge and Special Jury, At the hearing the defendant (Kinghorn) and the phuntiff both gave evidence. The other defendant had been absent from the Colony and had no knowledge of the transaction. The evidence of Kinghorn was of course entirely opposed to that of the plaintiff.tary evidence, I inquire whether the letters and Kinghom stated that when he wrote the letter telegrams were such as to furnish that prepon- of October 2cth at first the postscript was not

derance of evidence in favour of the plaintiff's there and was only added at the plaintiffs contention which would constitute the verdict reques, and that both parties and all along unreasonable as being against the weight of throughly understood that there was no bind evidente. I here wish to emphasize the obser lug contract until ratified by Kingsley, and heyation that the sole question for the jury was stated in answer to a question from one of the

question of commission raised, but that was settled by the telegram from Kingsley of the soih Cctober, which was rightly construed to teab that no commission would be allowed. Upon the receipt.of that telegram of the sath October, the plaintiff had an interview with the defenduet, and it lay with the jury, after listening to the conflicting versions of what occurred at this interview which preceded the writing of Kinghorn's letter of the 20th October, to say whether that letter had been written subject to an oral un. derstanding that it should constitute an acceptarice and bind the parties only if Kingsley confirmed the postscript la ing down the time terms of payment. The majority of the jury laying accepted Kinghera's version of this interview, it followed that that majority found that the letter of 20th October, 'which on its face was apparently an acceptance, had been written to be kept in abeyance until an oral condition had been fulfilled. Was this view of the evidence one which no reasonable men could or might have taken? Looking at the evidence, it appears to me, who have not had the advantage of watching the demeanour of the witnesses, that the majority of the jury did not act unreasonably in believing, that the telegram was shown to the plaintiff, and dis- cussed by the parties, and that Kinghorn's telegram of the 20th October to Kingsley was the result of that interview and approved by both parties., Having formed this opinion of the interview after having heard all the oral evidence at the trial, it is obvious that the majority of the jury believed King-Throne and punished severely. horn to be speaking the truth. So far then

(4)-Any soldier or employd in the Govern nient service, who acts in consort with the troublesome and unruly, shall also be executed.

(5)-Anyone found to have harboured the rebellious or disorderly shall be iniprisoned. for 5 years. The property of the houses in which they were harboured shall be confiscated and reward be given to the informers,

(6)-In case any rebellion or disorder arises in a family or a village - the chief of the said village and the bailiff must at once report to. the local officials, with a view to their arrest and punishment; otherwise the former shall be imprisoned for one, and the latter (the bailiff)' for three years.

as

(7)-When the officials find out that an altar has be erectell for teaching charms, they must level it at once..

(8)-If anyone has arrested a leader of rebels and sent him to the local officials, he shall receive a reward of T19, 200,00; and if an ac-: complice is arrested, Tls. 40 will be given as reward. The reward for information leading to arrest by the uthorities will be half such sums.

(9)--In order to guard against rebellion the magistrates of all districts must carefully find out and arrest the turbulent. If an altar is allowed in, a district for teaching charms, the magistrate shall be impeached before the

(10)-These prohibitions are issued to prevent the dra testimony was concerned, i

from further rebellion such as the Boxer rising. see no reason to say that the jury returned a

Those who were accomplices of rebels and who majority verdict which reasonable men might have now repented shall be pardoned except not have found. Tuiting new to the documen.the most notorious leaders, who must be arrested and punished. The bailiffs and ery- ployés in yamens are not allowed to trouble those who have been pardoned.

(11)—Anyone found to have coveted the re- wards by falsely accusing his opponents shall be severely punished."

་

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For the NATIONAL BANK OF CHINA, INCANDESCENT GAS LIGHT.

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For the DEUTSCH-ASIATISCHE BANK,

H. SCHOTTLAENDER, Acting Manager.

For the Russo CHINESE BANK,

J. W. R. TAYLOR,

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R. C. WYSE,

London Manager. Hongkong, 3rd February, 1902.

INSURANCE HOLIDAYS.

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Since the issue of the above, he has issued a whether the letter of the 20th, October con- further notification about arms. This proclama: jury that the words "will not enter into further stituted an absolute acceptance of the plaintiff's tion is stated, to be widely posted throughout negotiations with any one" were inserted by offer. It was common ground that that letter the villages and towns of Chihli. "No family him to emphasize that contention, and that was, as it stood, apparently an absolute accep- shall possess more than three rifles for personal the only question under ded was the question as aace. The terms and meaning of that letter protection. The balance must he handed over to the time of payment, whether the whole

were not therefore, as a fact, before the jury, to the local officials who will pay from Tis. 10 was to be cash down, er r0% cash and the balance who had only to consider whether that letter to Tis. 20 each. Anyone found secreting 10 in 6 months. He also explained that he framed was in abeyance pending the fulfilment of an

rifles will be fined Tls zoo and imprisoned for bis telegram to Kingsley of the same date with oral condition. Kinghorn's telegram of 19th 10 years, and those concealing more than 50 the view of pointing out that the question of October to Kingsley shows clearly that the

will have their whole property confiscated and time was the only one which remained uncei- question of commission had not then been the informer will be rewarded with, Tis 200." tain. With reference to his letter of October arranged between the parties, but that the

I don't quite like the tone of this proclama- 22nd be explained that he had taken legal price and time-term of payment had been artion. It appears to me to smack more of the advice and had been informed that he had ranged subject to submission to Kingsley, desire to gather in all available firearms, than to bound Kingsley as principal and so had writ-Then come Kingsley's reply telegram of zoth

disarm the people on principle, and three rifles For the UNION INSURANCE SOCIETY OF ten in the way he did. The plaintiff on the

per family appears a fairly generous allowance,

CANTON, LIMITED, other hand dented that he had ever seen any

unless the term "family "is rendered sufficiently. of the telegrams fron Kingsley previous

elastic to embrace all of one name. in the latter of October 20th, 1900, and

October, and Kinghorn's wire back of the same date saying. I have sold today. I have arranged for the payment within the time mentioned.". Whether I 'should have con:

strued this last telegram as the jury probably did, do not say. The construction of the majority of the jury was seemingly, that it referred to the time mentioned in Kinghorn's previous telegram of 19th October, and was despatched to discover that Kingsley's telegram of the 20th meant as to the time-terms. To or dinary minds, Kingsley's telegram of the 20th October did not allow time for payment. Yet was it unreasonable that the majority of the jury should consider that Kinghorn's wire of the 20th October indicate a misreading of Kingsley's wire and an application for further instructions? I cannot say that this was a con-

It is rumoured, but not on very authoritative grounds, that Yuan may be made one of the Plenipotentiaries in place of Wang Wen-shao, who, as I fully anticipated, is not proving a shining light in foreign diplomacy.

1

anat enhver ei.consumers is drawn to the fact that

the Undersigned, being Sole Agents for DR AUER VON WELSBACH Co.,

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THE INVENTORS OF INCANDESCENT GAS LIGHT.

ARE SELLING THE ONLY GENUINE MANTLES, The Price of which has been reduced to FIFTY CENTS per piece.

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that he and Kinghom both considered that fetter as a binding contract and that is pursu- ance of that contract lie on October 22nd, 19co, (October 20th, 1505 having been a Saturday) tendered the to per cent. which was refused by Kinghoru. I left (with practically the con- sent of both partjes) the following question in the jury. Did the panties consider the letter of October 20th, 1999, (including the postscript) a binding contract at that date or not? The jury, after having heard the conflicting evidence of Kinghorn and the plaintiff and having had the telegrains and correspondence read to them, by a major of 5 to 2, answered the question in the negative and I gave judgment for theclusion to which reasonable men might not have defendants. The plaintiff appealed to the Full come, more especially having regard to the con Court and asked that the verdict be set aside temporaneous if not simultaneous statement in she appears to have been weeping rather freely PAID UP CAPITAL

A petition is on foot to squash the House For the VANGISZE INSURANCE ASSOCIATION, Tax, which it is feared will only lead to trouble

SHEWAN, TOMES & Co., throughout the country, it being unprecedented

Agents, : in the annals of Chinese history.

For the CHINA FIRE INSURANCE Co.; LD.,

GEO. L. TOMLIN, Secretary,

Kinghorn's letter of the 22nd October in which

The Land Tax in 82.districes around Peking is being remitted for this year on account of the bad time the people have, or are supposed to have had at the hands of foreigners, though

as a matter of fact they are better offiban usual, except when brigands have waxed fat on them. story is current to the effect that the Dow ager at a recent council at which she wept→→→→

and judgment entered for the plaintiff or for a

of late expressed her intention of soon new trial on the grounds. i.That evidefcend he alludes to his own telegram of coth October relinquishing the reins of government, as her as one for confirmation of the time-terms. If been improperly admitted. ii-That the verdict was against the weight of evidence and pre-the majority of the jury observed that Ho Liage demanded rest. A censor replicil with some asperity that she would be required to celent. The arguments were confined to theand Cho had not been called as a witness for the control affairs for some years yet and must kind-. grend, as the Full Court had already admitted plaintiff, who, it seems to me was the properly put horself to some trouble about it. She niso the evidence and could not consider that ques-party to call him, and drew therefrom an tion again. On the hearing of the appeal a inference unfavourable to the plaintiff, I think endeavoured to shift the blame of the out number of cases were quoted by Counsel on the that their action was neither unreasonable rior break on to Prince Taan and Kang Yi, but the question as to whether the Court could upset the verdict of a jury on a question of fact, viz. Soloman v. Birton Q.B.D. 8, 176; Webster v Friedebery Q.B.D. 17, 736; Metropolitan Rail. way Cp. v. Wright 11 App. 152; Jones x. Spencer 77 LaJ. 536; Aitken, v. MeMeckan 1895, App. 3roi Hampson và Guy ô tô kịt. NS 778; Phillips v. Martin 15 App. 193 and others includ ing a case Machinel v. Hart not officially reported as far as his Colony is concerned; but to be found in the Tipes und Standard of December 21st, 1901

unjustifiable. As I agree with the law laid. down by the Acting Chief Justice, and as I am of opinion that the verdict of the majority of the jury was not one which they, viewing,the whale of the evidence reasonably, could not properly find, I concur in the judgment just delivered.

Hongkong, 3rd February, 1902.

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GUARANTY TRUST COMPANY OF NEW YORK. (AMERICAN BANK),..

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George F. Baker. August Belmont. George S.. Bowdoin... same censor growled out that Kang Yi had. Frederic Cromwell. official. The whole scene, if it ever occurred, G. G. Haven. given his life for the country and was a loyal E. H. Harriman. was obviously got up as a feeler by the Dow R. Somers Hayes.." ager. No importance need be attached to the freCharles R. Henderson. quent reports of her tears: Crocodiles have, Harry Payne Whitney. beleive a, chronic watery affection of the eyes.

Yuan Shi-kai is urging the Throne to re establish the northern feet, and make Chefoo the head station. General Yeh Tung is to be placed in charge of the Squadron This is doing a kind of "snooks" at Russia, who has been trying to wheedle the surviving warships out of China.

TIENTSIN DAY BY DAY. (From bin Own Correspondent),

TIENTSIN, January 2182. A little spell of sickness has thrown mesome- what behindhand in my news, but fortunately liule of much moment has occurred, and the antive papers appear to be busily conoctingly, yarns for which there does not appear even the slenderest foundation,

From these cases it appears to me that the question is not whether the judge who presided at the triul agreed with the verdict or not, but whether in the face of the evidence (conflicting as it was in this case) the verdict yas unreasonable and one that reasonable men Yuan Shi-kaj has just issued a very important ought not to have arrived at. Now, although proclamation calculated to put rather a damper in view of the telegram from Kinghom to on Boxer practices, but not necessarily a Kingsley dated October 20th, 1900, and the guarantee of safety to foreigners on that

· letter from Kinghorn to Kingsley of October | account. There is evidently a well defined zand, 1900, I should not myself have come to intention to avoid all Appearance of evil" lot. the same conclusion as the majority of the jury the present and quietly abstain from anything did, yet I am not prepared to say that it was which might keep foreign suspicion from taking unreasonable, for them 10 believe Kinghorn's a nap, while every nerve in the meantime will evidence and explanations, and disbelieve the be strained to Arm Arm Aim for the coming plaintiff's. It was a case essentially for a jury conflict. Yuan's proclamation, which illness and they exercised their discretion, as in my prevented my sending before it appeared locally, opinion they were entitled to do. Under these, runs as follows:- circumstances it seems to me that I am bound by the authorities and that this motion must be dismissed with costs.

The Acting Puisne Judge said The ques

tion which the jury had to answer in this

& CO. DENTS DRIVING

Yuan has also fasked for Tls 150,000 for distribution among the Chibli poor. So many large sums have been already devoted nominal to this object that one begins to fancy the poor" cover some other scheme.

Yuan Shi-kai's troops have all been ordered to leave Shantung for Peking, and started a week ago. Some of the Kansuh troops are being disbanded. The Emperor is shortly to offer sacrifices in person at the Temple of Agriculture, as seed time is approaching and the rain gods must be propitiated.

A terrible boiler explosion occurred at a flour

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For the past fortinght we have been enjoying entire absence of the winds, which usually vex weather of almost spring-like mildness and as. the spirits of Tienizinners at this season. But to-day a sudden change has come. Yesterday the Ladies were playing a chockey. "match, Married Single, in the brightest sunshine, In view of the return of their Majesties to with costs off to day it is snowing and a raw Peking, there must be no further turbulence. In cold searches to the bone. Tardly any skating order to prevent such, I have herewith drawn has been had since New Years upregulations for the guidance of under is quite clear in the upper-

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