1909-06-11 — Page 14

7216

Divorce Damages.

سیل

MOTION DISMISSED...

INTERESTING DECISION IN THE MITCHELL-

LEMM, ACTION,

The action which was brought by Captain C. W. Michell, of the steamar Fook Sang, against Jolh Lemm, the Hongkong architect, for damages for the alleged misconduct with

concluded.

THE HONGKONG TELEGRAPH FRIDAY JUNE 11

Therefore, whether we look at the question These ces proceed on an accepted priaci Reclamation Dispute.

from the point of view of the previous decision not having been on the marits, or of the issues in the two cases not being identical, the plea in my opinion fails, mokantnom

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But there have been certain decisions in which the facts in some points more neatly resemble this case than in what i have called the standard cases, and these require serious | consideration,

THE GOVERNOR'S ACTION.

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DECISION OF THE CHIEF JUSTICE. Sir Francis Piggott (Chiaf Justice) rendered his decision last Wednesday morning in the case in which B.E. Sir Fredenck Lugard, Governor of the Colony, sued Mr. Chu Ping a merchant of 313, Des Voeux Road West, executor for Cho specific performance by the defendant of agree ments dated 17th December,, 1889, "and-24th July, 1903, with the Govamor, in respect of Marine Lot No. 538, which lot is situated near Tung Man Lane, Hongkong, and is bounded on the west by Eudicott LRBE.

1909.

Tragedy at Sea.

CARGO BOAT RÚN DOWN.

ownership as shown by the books of the owner of the slips, While therefore I admit" the force of the assessor's doubts 1 must hold that the junk's ideality has been sitáblished. After dealing exhaustively with the question of THE CHEF JUSTICE'S DECISION. lights, the Chief justice concluded his judgment, as follows ---- om of opinion that there was no Judgment was delivered in the Admiralty justification for the assumption that, the junk Jurisdiction Court, last Wednesday, by the was on the starboard tack and afterwarde altar Chief Justice, in the action instituted by Wong ed her course. Therefore as the collision did Cheong Wei, owner of the junk. No. 12115, result from the manceuvre which he thought against Michael Jobson, of Apenrade, Schle his inference necessitated I bold the Wolafitn steamship Bolslein, to recover $10,000 for the stood by sufficiently I do not think anything loss of the junk and her cargo." The collision | tums on it. The'susetson, however, dosi not.

see anything to criticise in the mancœuvres adopted by the Holiisin after the collision.

his wife, at Kowloon, some time ago, ban bhan l'ed to recover their profit cosis in foreclosurative legislation is established in thaza casos; it Chuen, a rich tobacco manufacturat, for the | ■wig-Holstein, of Germany, owɑar of the also to blame. Às to whether the "Holskin

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The first two arose under the Mortgagen's Legal Costs Act, 1895. Prior to the passing of that, Act, solicitor mortgagees were not allow-j or redemption. It was not express law in the sense that it depended on astute, but the rule had been gradually worked out by the Courts no general principles, which do not seem to bave been finally made, clear till 1890, in the case of re Wallace. It was that case which led to the agitation, as the result of which the Act was passed allowing those costs to be recovered. The Act was made retroactive. to this extent, that it applied to existing mortgages and to business transacted before its pasting

The Chief Justice (Gir Francis Figgott) gave his decision in the matter, last Wednesday fore noon, la the Supreme Court, the result being that the motion was dismissed.

To giving his judgment bis Lordship said. The plaintiff in this case sued the defendant for alleged criminal conversation with his wifa. When the trial" came so the defendant took the point that this Court had de jurisdiction to try the action; the question turned on the affect of the colonial legislation, and i. decided against the plaintiff; briefly for the following

In Eyre 1. Wynn-Mackenzie, a solicitor mort- reasons. That by the introduction, of the Eng

gagee has been declared by a judgment given lish Divorce Act of 1857 into the Colony by before the passing of "the, Act, not entitled to Ordinance No. § of 1858, the common law accharge profit costs against the mortgagor, and tion for criminal conversation was taken away he applied after its passing for an extension of bere at it had been in England, the remedy by time for appealing against the judgment, The way of damages against a co-respondent being point in the case was of course the leave to ap- substituted for it. That by the repeal of No. 5 peal, and it is difficult to see how the solicitor's of 1858 by No. 5 of 1860, the divorce jurisdiction case would have been in any way bettered if he of this Court was taken away," and thereupon had got his leave to appeat; for although the the action for criminal conversation ravived. Act was retroactive, it did not deny the existence But that by certain subsequent practments; bof the law as it had been laid down is the judg which a fatroactive effect was given to Ordin-mects, it,odly altered it for the future and for ances which had already effected repeals, this revival of the action was, by an error in the drafting, destroyed. So that at the time this action was brought the right to bring it bad been destroyed. And I so held.

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ple, that so far as the law, is concerned rights do not exist until they are ascertained, and de- termined by such ascertainment:, and although the rights may have been in existence for" a long ume, yet for all legal purposes, unless the decree ascertaining them otherwise orders, they are not acquired until a decree prosounces_in favour of their existence. Acts of the parties may of course take the place of a decres ancer taining the right, if they are sufficient and effective.

The application of this principle to retroac alters the rights which the parsons affected had before it was passed, and they may enforce them: but it does not affect rights already acquired, that is, determined and this simple, explanation is sufficient, the person who has acquired them under the law as it existed at the time, and there is nothing lelt on which the now law can operate; the ques tion in inct decided, and is res judicata. It ceainly requires express words to cancel or destroy rights which have already been delet- mined and acquired.

In coming back to the facts before me, 1 fr€TM repeat the questions which I have already put, based on the standard cases on res judicats, Was the former judgment of this Court on the merite of the issue raised in the present action between the parties? The answer must be No. What then did that judgment decide? That the right of action for criminal conversation was non-existent when the alleged adultery took place, because it had boon destroyed. That cannot be pleaded as res judicata in this action, the basis of which is that the destroying Ordinance has itself bean destroyed, its effect, existing mortgages. The appeal would there: wiped out, and everything declared to be sad fore have upheld the law as it was at the time to have been just as it was before the Ordia the judgment was given. That matter had been

ance of 1895 was passed. I now put the ques closed, and really there was no existing mort. tion which results from the three cases which 1 gage. This is what Lindley L. J. said: Look

have just examined. Did the defendant ac Since that judgment was given an Ordin- og at the application as an appeal on the quire any rights by that judgment which are in ance has been passed in order to recliff the merits, it was impossible to say that the ilg issue in this action? If he did, alike ob gen- mistake, and thus the right to bring this actionment was wrong as the law stood at the time cral principles as laid down in these cases, as has been again revived. This Ordinance, No. when it was given. "I cannot help thinking that an the effect of repeals as laid down in the in 10 of 1958, declares the effect of section 4 of the this was sufficient te dispose of the case; butterpretation Ordinance, and which of courEn ald Ordinance No. 3 of 1815, which was the Lindley Li J, Seat further, and said that it was apply to this Ordinance of 1908, those rights section in which the mistake had been made,

obvious that the Act was not intended to in would be respected, and the matter would ba on existing legislation to be inoperative and of terfere with judgments which bad already been res judicata, But the only right which he could none effect, and the Oriliances affected by it given. He might have gone further, and said be said to have acquired was not to be vexed in fact are declared not to have been affected; that it was got intended to interfere with trans twice for the same cause; which is turning the but to have remained and to remain of the

actions concluded before it was passed. Other argument in upon itself; it is petitio principit, same force and effect as if that section had

wisa cyary solicitor mortgagee since the time and only raises again the very questions which never been passed.

when mortgages were made would have had a I have been discussing, in order to ascertain claim against his mortgagor. This is what whether they exist or not The only other happened io Day. Kelland; and the Court of possible right which is perceptible as having Appeal held that the Act did not affect or existed during the period 1895-1968, is to have alter rights which were ascertained before its criminal conversation with another man's wife passing,

with impunity. Such was the law then, and it has now been declared by the Legislature that it is to be deemed not to have been the law. I am therefore of opinion that: from all points of view the plea fails,

The plaintiff, now brings his action again in identical terms, claiming the sauc ze lief for the same causes, and the defendant pleads that by reason of my former judgment the question is res judicata. It is admitted that all the conditions accessary to the pleh are satisfied if the plea is applicable in their

cumstances.

Whether as a fact this defendant did have criminal conversation with the plaintiff's wife as is alleged, is a question still to be decided.

Sir Henry Berkeley, K.C, with whom was Mr. D. V. Steavenson, of Messrs. Deacon.

Mr. M. W. Slade, instructed by Mr. J. Scott Harston, of Messrs. Eweds and Harston, ap- peared for the defence.

Colony, instructed by Mr. H. L. Deneys (of the Mr. H. E. Pollock, now absent from the Crown Soliictor's office) acted for the plaintiff. Mr. M. W. Slade and Mr. O. J. Alabaster, instructed by Mr. H. J. Gedge (af Messrs. Johnson, Stokes and Mastor) represented the defendant.

V

took place on the China Sea on 14th October,

1908.

Mr. H. E. Pollack, K.; instructed by Moss, Goldring, Batlow and Morroll, formar- ly appeared for the plaintiff, who' wat 'now re- W. Slade, instructed by Messrs. Deacon, Looker presented by Mr. H. G. Calthrop, and Mr. M. and Deacon, appeared for the defendant.

In this matter, the reader will recollect, the collision occurred on the night of the 24th October, 1908. The plaintiff's junk was craising in company with another junk, His Lordship, in brief, said:-The preliminary woed by his brother, and they were out objection had been taken that Sir Frederick Lofthing. The defendant's steamer approach gard had no right to bring the action. The pooled them, and they alleged that bad she tion was this: 1 may be the Government is to kept on her course she would have cleared be ultimately benefited by the agreements them, but she starboarded her helm improperly entered in the case of the Paya reclama and cut the junk in two. The store of the junk tion, but they are not entered. into on its be sank and four women were drowned. The steamer did not lower a boat or stand by to half nor does the Government figura in any of them. Therefore the simple case I bave reader assistance to those in the junk but con- tinued on her way to Hongkong. The portion imagined of the Governor suing to saforce the

of the junk that did not sick was towed to rights of the Gaverament does not arise.

the coast by plaintiff's brother's junk and sub. because on the plain wording of the dock. meat it has none. Thereforail any action can be sequently brought to Hongkong. The plaintiff | brought on this agreement it must be brought alleged that the steamer was improperly and by a party to it, or some one to whom the negligently cavigated, that no proper look-out was kept, and that she did not comply with the rights have been assigned, and Sir Frederick Lugard is not a party to it, nor the assignee.regulations for prevention of collisions. De of the rights. This defect is not remedied fendant's story was a very different one. Their by the addition that he is suingfor and on behalf contention apparently was that the junk was at of the Governor of Hongkong, for the addition the time heading in towards the coast of Chlon, amounts to nothing, and cannot invest Sir and that the junk suddenly swung round on her F. Lugard with a right which bo himself course, and attempted to pass across the steamer's bow, thereby rendering a collision does not possess. I must therefore treat this

inevitable. as an action brought by Sir F. Lugard to ep- force a cause of action which, if it exists at all, exists in him personally, though, at his title to the action asserts, rights which would, resuit from a judgment would not be his per sonal rights but would be obtained by him" for and on behalf of the Government of the Colony, A careful study of the 'Ordinance makes it remarkably plain, so plain that the wonder is that it should have been so misunderstood.

The Government had this large scheme on hand and had determined to undertake it provided those who would directly benefit from it would hear the cost. And the rest ut sae prelimi- nary megotiations was that the majority of the frenlagers were willing to accept this benefit provided they each had some share in the land reclaimed. What share? Well, the Govern- ment could not say dehoitely. because the scheme was, still in embryo; so they said if you contribute your shares of the expense indi

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In giving his decision the Chief Justice id:~

COUNT OKUMA AND MR. CHIROL.

JAPANESE AND BRITISH IDEALS.

On the morning of the 17th' ultima. Mnữ Chirol, in charge of the foreign department of the London Times, accompanied by Dr. Mor....... rison, the Peking correspondent of the same journal; and Captain Brintlay, the Tokyo cor respondent, called upon Count Okuma at his residence.

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According to an account of the interview between the Count and Mr. Chirol, as published in the Osaka Maluichi, after some exchange of courtesias had taken place, Mr. Chirol said that he sought the opinion of Count Okuma on the present state of commerce and industry in Japan from the social and economic point of view.

In reply Count Okuma remarked that the commerce and industry of Japan had made. remarkable, progress, as the result of the war. A reaction had now appeared, and both Japan- ese and foreigners have seemed to realise that they had over-estimated the efficiency of the Japanese people. The cause of this com plaint had now, besa, almost entirely removed and Japan was going through a convalescence after a dangerous illness. There could be no doubt that she would recover sound health before long.

There was a wide difference, sald Mz, Obiro), in thoughts, mancert, and castoms between The latter tab- Japanese and Europeans. ordinated' interests of the State to those of in- dividuals, placing the greatest importance on commerce add industry. These ideas of Euro- peans were rapidly being imported in Japan, together with material civilization, and it was natural that changes would follow in the Japan. ese mode of life and that a labour question would arise. Mr. Chiral asked how the ideas regarded as inherent to the Japanese could be

The plaintiff is the owner of a certain junk And he brings an action in rem against the s.8. Holstein for damages resulting from a collision which is alleged to have occurred in the China Sea during the night of 24th October, 1908, about seven miles due south of Tong Mi Point. The stories as told by these on board the two vessels are more than usually discrepant. The junk was, according to the story told by the master and bis steersmas, proceeding to her regular fishing ground which lies about fifty miles south of Tong Mi Point; she had been fishing in the bay between that point and Chi

The business ideas of the Japanese, joplied Lang Point and was sailing on the port tack

Count Okuma, were assuming the English type with a light north east wind, as near to the

and it was an indisputable fact that the-' wiod as she could stil, and with only just steerage way on her.. The men say that the difference between the rich and poor was bas course they were on would take them in or coming greater, as was the case in Great Britain, But he was sure that by this change the beauti- dinary circumstances about six hours toful astionat character inherent to the Japanoso would not be destroyed. It was decessary for the Japanese to prevent the destruction of their national character.

lilism; also one which gives the reason for it. Court of Appeal held to mean, where the rights | Looker and Deacon, represented the plaintiually you shalt bave, what any one would get to the fishing ground without tacking;

Telt some difficulty about these cases for they seemed at first sight to resemble the prex sept case there than they really do. But the The law on the subject of yes Julietta.is up.

Aci is entirely different in its nature from to a certain point very plain; but it is encum

the Ordinace now under consideration, It bered by a series of maxims which more.or

did not proless to alter the law retroactive less confuse that point. The plea is really n shon form of the maxim rex judicata pronar all it did was to alter the law for the tale accipitur; the maxims that have gathered future, and to apply the law as altered to mort- round it are, interest, reipublican wt suis Kagesmade before the Act was passed, which the of solicitor mortgagees under them had not This Ordinance already been ascertained. goes much further. It declares that the law a 'il existed during the period between 1895 and 1908 was to be deemed as never having so existed, but to have been precisely-the-op pusite. Just as the law passed in 1895-plated- but the right to bring an action for criminal conversation, so the law of 1908 blotted out the law as it'existed during that period, and further declared that it was to be deemed never to have existed.

would lead nowhere.

+

·PARTED 'FRIENDS,

Witness.

no-lilca immortalte "essen?-dai-istigantes-muri- tales ; and no other, nemo debst bin year pro cadem cauza. Ren judicata is generally called a plea, but it is to be observed that it is a general doctrine applicable like to plaintiffs and defendants, the occasion arising. But the last maxim I have referred to is really An off boot of the principal maxim it its ap

THE 'RESULT OF AN INTERESTING CASE, plication to defendants, and engendered by

ཡིན the rule spacially considered in Brunsden 7.

Last Wednesday afternoon, in the Police Humphrey, but established, in other cases; R

Court, the adjourned cass brought by two map cannot sue twice on the same cause of

During the argument I suggested what Europeans one of whom was formerly in the action, but must exhaust his whole case both

seemed to be a closer analogy to this Ordia- employ of the Kowloon Canton Railway-for for past and future damages; hence it has come

Lord the uning of indecent language to each other to be said that a man must not be vexed twice ance what would have been the result

on the 19th ultimo, was resumed.. for the same cause. But this subsidiary maxin Campbell's Act had been made retroactive? It

The case for the defence being opened, the goz ao further than the parent maxim, for would have given a right which did not exist

before. But would it have given a right to defendant volunteered to go to the witness "eadem caue=" has to be interpreted by pre-

person; say a wife, who had brought an action stand. He said that on the day in question, cisely the same roles that have been laid down

for damages for the negligent killing of her between 5 and 6 o'clock, he went into the pre- for interpreting the doctrine of res judicata,

Now on the face of it, this cause does not busband, and who had been nos-suited? On mises occupied by Kong On (contractor) on the reclamation to use the telephone. He rang up appear to be one of ridicata,, for the pre- further consideration i think it wiser not to

press the analogy for the intention of Lord his bumber and was awaiting his reply when vious decision of the Court does not fit on to

the other paily came in and said: What in the maxim in any way. A few fragments from Campbell's Act is obscure; and If, as some

theare you doing here? You've got a different judgments will explain this prima Judges have thought it gave an entirely new facis view of the question raised by the defen-right of action not in any way resembling the cheek to come here. Get out of this, or I will dast. A judgment is final only for its proper pur perquod action, the inquiry, if pursued fartber, give you is charge of the police."

answered: Have the decency to wait until poic and object. A matter which has been ex-

There remains the case of Poulton v. Adjust have finished my message? The defendant pressly determined by sentence cannot be gain. said. An issue once taken and found is con-able Cover Co, for there is a dictum of Viugan held out his band, with his fists clenched, clusive according to the finding thereof. It is Williams which goes a long way towards and said: Get out." Witness, replied:-1 never isleaded to stay, but to go out in a necessary for the defendants to chewintheir plea supporting the defendant's argument in this

case. A patentee brought an action for in-peaceful manner." He walked towards, the that the judgment in the former action by which the plaintiff took nothing was inconsistent with Iringement; the defence was that the patent gate; some more words ensued, the defendant the notion of their liability. Extracts such as was invalid on the ground of user prior to the calling witness a diety name, Witness went across the street,'and got into his ricksha, and there could be accumulated to any extent; the grant of the patent. The plaintiff obtained

in a fit of anger he addressed the defendant idea which they cadeavour to express is that judgment and an order for inquiry into ths pies in order to be effective must show that damages. Pending the inquiry further is saying: This is white (meaning bir son) there has been a previous litigation in which stances of prior user were discovered, and the there is nothing of the wonà about bim,"

defendant petitioned for revocation of the the question in issue in the second action has

Cross-examined by Mr. Barlow, witness said besa threshed out on the merits and decided. patept. It is first to be noted that there was that be was discharged from his firm aa "In fact, this idea has led to the concise'state-, nn veg judicat s'here, for the' right, gave rise to 3181 January. He bad been discharged in meat of the rule in another form-the previous two different equities. An order for revocation consequence of the reduction of staff. He had judgment which is relied.on in this case was of the patent was made. The Court of Appeal every reason to believe that his dismissal was not on the merits, but on a highly technical held nevertheless that the original plaintiff was

recommended by defendant. Witness' nd. construction of certain legislation of the Colony, entitled under his judgment to substantial

mitted that by entering the office of Kang On Now this has led to a second group of cases damages, and that the defendant was estopped

he was trespassing. In which the Courts have declined to apply the on the inquiry from alleging that the doctrine; where a judgment has been obtafeed patent had since been declared to be invalid. by a defendant in a foreign Court based upon Vaughan Williama L. J. said:-" In my opinion it does not matter, what must be deemed to be the statute of limitations of the country, and the English limiting period not having expired, the real truth with regard to the validity of the a suit for the same cause is subsequently patent, either in the past br in the future, or brought in England; the case being bus, to whelber the order of revocation must be lakes which, although the previous judgment was merely to have prevented the patent from can given in a foreign Court, the sciple of res tinuing. in existence, and declared it cull and judicata would otherwise have been applied, vaid for the future, or must be taken to have What the Courts have said is that the former declared it null and void ab initio, and therefore, decision has been upon the merits, and there never to have had any legal existence. Fox, fore that the doctrine of res judicata does not even assuming that it had the latter effect, I am apply; and the second action in England wift of opinion that it could not affect the already lie, although undoubtedly the defendant is existing estoppel, by virtue of which the de- fendants were prevented, figm denying that: baing twice vexed for the same caure.

which by the judgment obtained by the plain tiff in the action, had been' finally, determined

The principle of the standard cases, which has been shortly described thus, "You must ascertain what was the essence of the former

judgment," has been applied by asking the question, "What in fact has the previous judg: ment actually decided?" In Harris ». Qaine, where the former 'action had been brought in the Isle of Man, the limiting period being there three years, this-question-was thus ane swered "The plea shows obly that the Manx Court has decided that the debt is barred in three years; that cannot be an answer to the action in England But if the judgment in the foreign Court has been, nqs that the debt is barred by limitation, but that's right has been acquired by prescription, then the matter is res judicata, for the question of right, that is the merits of the case, has basa decided.

Now, if we apply the same test here, and ask the question,What has the previous judg ment of this Court decided?" the auswer is that the right of action, had bean destroyed by a certain Ordinance. But this action depends on the fact that the right of action has been retrospectively restored to life; and it follows retrospectively restore in this action, which is

the merit of the plaintiff's claim, although riend in the former sciton, bas never been decided.

r.",,

** töluk everything turn on this because it

to be the truth of the matter as between those

Mr. Hazeland-What did you mean when you said, "This is white and not a work,?"

Witness was referring to his (com plainant's) mixed marriage. "I said so in a fit of temper.

Anather witnesi was called, and he denied that the complainant used any threatening and abusive language towards the defendant." He, however, said something disagreeable to defen dant's wife..

The next witness denied that he saw com plainant make a strike at defendant. The latter's attitude was not hostile. As a matter of fact be was hiding himself behind his wife's back. The witness denied that compiainat used any bad wards to defendant or his wife,

Complainant-Didn't the defendant say to you that if you came into this case that you would be fined two days' pay?

Witness-Yes,

parties as regards the questions involved in that action. The judgment of Moulton L. 1. was directed to showing that the revocation could not operate ab initio, on account of the Didn't the defendant convey the message absurd consequences which would follow. But from the firm to the effect that you need not I am content to take Vaughan William L. Jsabay the subpoena, but that you could be ar dictum as being very sound law. But first it is rested?—Yes,

MACAO.

to be remarked that such semblance of inequity Mr. Barlow, having addressed the Court, bis an seems to be involved in the decision writes Worship bound both parties over in the sum of from the fact that the inquiry for damages was 1200 each to keep the peace for a year. Be still peuding; but the case should be looked also fixed the complainant Sto for the abusive at as if the proceedings had terminated language. with the judgment, when the principle seems much alearen For then the case fails well within the principle considered in Brunden v. Humphrey, which is as applicable to a defes dant as to a plaintif he must bring up his whole case at the trial, and if he does got that is his fault, the' question cannot be re-opened. Put shortly, it was the defendant's fault for not having made sufficiently careful inquiries to prior user in order to establish his case The subsequent proceedings showed that the Macao, and blandes, had done so he would have won his case,

THE DELIMITATION QUESTION,

A telegram from Lisbon states that the Chi- Dess Government are said to insist that da rights of Portugal are limited to the town of

territory

maintained.

That was a difficult question to answer, replied the Count. There could be no reason way, the success already attained should not be continued in the next generation. The re- markable development. japan had shown in the past thirty years was due to the influence and stimulation of contact with Europeans and Americans. From this time the Japanese would construct a civilisation for themselves wahout external assistance. to the present.

gress made sa the facilities of commnalcation, telegraphs, telephones, and railways made the world smaller, for placos distant thousands of miles became deighbours. Japan could not perhaps keep in constant touch with the pro- gross of civilisation in the world, but if she “strove hard to emulate other countries under the so-called armed pince, it should not be difficult for berto build up a great, mation in the future. It was this view that he was con- alaatly impressing on the rising generation,

think was your proper share having regard-to--also-that they did not-ack-at-all-after they the public requirements for roadways and were ance on their course which was set be streets; and of course having regard also fore they got away from the Paint The to the claims of other lessees. With the ma

Holstein was proceeding on her regular-courta

In the period of transition, said Mr. Chirol, jority of the frontagers in favour of the scheme from Swatow 10 Boogkong at about eleven Japan's success in building up her civilisation, the Government decided to proceed and deter koots." The night was clear with starlight band especially, her success in the two great mined on what was, and no doubt, forcible there was no moon. The discrepancies in the wars, was universally admired by Europeans expropriation as far as the minority was coo. two stories begin at once the juok says the but those who played an important role in the cerned. Alter referting to the circumstances

owner was hit by the Holstein alt of her after past achievements were mostly mea of the old type influenced by ancient ideas. Would the at the passing of the Ordinance his Lordship bulkhead "just where we go down into the cabis; the stern was wrenched off and sack continued. Suppose in fact that some or many

japanese of the next generation, be able to with four persons on board who were drowned, build on the structure now raised?'" had raised the question that the original com

The remainder of the junk, was towed to the pact on which the Ordinance was based, that the division was to proceed on the principle of shore by another junk which was in company equitable proportion, bad abt been complied with the plaintiff's junk, and afterwards towed with, can there be any doubt that they would, round to Shoukiwan; and there she is, or was, have been entitled to be heard? Assuredly when this action was commenced, on the slips, not. They could not have protested before in witness of the story, as Messrs. Long Hing's the Ordinance was passed because the excellent photographs showed. And a Chinese pian was not in ex stence. Having had much fireman from the Bolstein came and told us practical experience in such matters, I say that he had seen the bit of the stero fanting unhesitatingly that a government would be dowe the starboard side of the ship level with mad which insisted on pressing through a the water, apparently just on the point of sink-day in consequence of the remarkable pro scheme such as this if it had been challenged ing. He also heard cries of "save life; but the as being a breach of their original undertaking master and second mate of the Helalain threw by those with whom the undertaking was en doubts on this story and questioned the leted into. Fortunately nothing of the wort identity of the junk on the sips with that happened, and so far as one can judge the of the junk with which they were in adherents seem to have been satisfied that the collision. For this reason, it is quite true Government had kept faith and that the pro- that the'r ship did strike about where the portions allotted to each were equitable from junk people say she struck theirs but there was the standpoint of each. There is no evidence oo crash, oaly I suppose a bump; and they that such was the case, but it might be well that heard no cries; and as the junk with her sails this very question which is raised between non- set slipped down alongside the Holstein both adherents, should, have been raised among master and mate say they saw the cutline of adherents; and 1 bave no hesitation in saying. sails and her three masts standing: that is to the stern light would have been suspended ignoring of back-section holders had been so that if the question whether the completo say, they saw the pole in the stern on which raised they would have been entitled to a Therefore, according to them, this fuck was not patient heating and further that if there had cut in two at all and the vessel on the slips of only keep end without prejudice to the rest of which we had the photographs is not the junk the scheme proceeding, he would have been with which they collided, and that one has entitled to have the question which is raised joined the fleet of the "Flying Dutchman." in this action very seriously considered by Is order to get at the truth of this preliminary the Government, and, if necessary, by the law fact of identity I proposed two questions to the officers at home. For I wish to say this at assessor. First: Would a junk with her stern onco: That it is a very serious question, and knocked off as shown in the photographs pat enable one not to be so easily assumed adversely to in evidence keep sufficiently adost

her to be towed some seven miles to the the back section holders. His Loidship hald that Sir Frederick Lugard had no right shore? And fortber to enable her to be towed to bring the action, and a non-suit must be round the coast to Shaukiwan? His apswer is: entered.

Yes. As a water logged juok abe would tow a- wash in smooth water a long way ; certainly all of seven miles, Probably some strengthen ing would be done to her by cross beams be fora abs left for Shaukiwan. Second: Would' a steamer of the size of the 1.1. Helstein going at half speed, about seven knots, according to the mate's evidence, coming into contact with a junk sailing slowly across her bows at more or less of a right angle, at a paint just aft of her after bulk bead, do ter no damage at all, merely cause her to swing round and glide past the steamer uninjured? His answer is:. 1 consider that certain top damage would be quality, but men of foolish honesty were un

worthy as a match for a Machiavelli, Dr. Mor- done but not the amount shown in the photo-rison was generally regarded as an authority graphs; as the blow would be a glancing one with the tendency to push the juok away sites not agree to this public estimate. He hoped on Chinese matters, but he (the Count) could impact. The answers show that the assessor.that Emorrison Would study harder and thos thinks either that the damage done to

become a trocauthority on Chinese affairs.:: the junk was very slight and, was deliberataly

At this point Coast Okuma – broké”: inta aggravated when she was brought to Hong. laughter, ADC when his remarks were intere keng, or suffered more demage while she was being towed down, or that the junk on the slips proted Mr. Chirol and Ur. Morrison both smiled. was nof the junk with which the Holstrin'col- After thanking Count Okuma for his remarka, lided. He naturally cannot do more than give the two gentlemen withdraw. expression to his doubts. I must therefore Captain Brinkley, assisted by Professor Shis decide the question on the evidence. I cansotwasawa, interpreted daring the interview, accept the theory ibat the junk is a different Japan Chronicle, one altraurdinary for me to adopt in the altogether, for the cofncidence - would be

absence of anything but sarmise to", guide mo. And if she wan'on the slips she was there because was damaged, presumably by the collision; this would not affect the judgment but only the amount of damages, as to which there would have to be some pre-

THE FIRE AT THE MITSU,

BISHI DOCKYARD.

According to the latest news regarding the fire which broke out at the Mitsu Dishi Dock- yard and Engine Works at Nagasaki, we learn from the Nagasaki Press that one dockyard employé and two firemen were injured severe- ly, whilst several other dockyard hands suffered to a lesser degree.. The las in buildings and property, including some electrical gear destin ed for the Volunteer steamer Umepaka-maru, is estimated at some Y60,000. It will require abour three weeks to clear the site of debris, after which reconstruction of the workshops destroyed will be immediately taken in hand, and, as a number of spara dynamos and parts necessary to replace those lost, are in stock, the resumption of normal business will be very early. The dockyard authorities presented the sum of Y1,000 to be distributed among the various local fice brigade units engaged in the work of subduing the conflagration. The Nagasaki Prest congratulates the local dock Yard upon this praiseworthy and slempia action, as well as opon the fact that their mis fortuna has been so wall met by them as to constitute but a "temporary inconvenience."

LAWN BOWLS,

;

too

Turning to the question of China, Count Okuma said that Englishman carefully studied China and claimed to be thoroughly isformad on Chinese matters, but that was a great mis- take. The japanese word of the same race and used the same characters as the Chinese, and were tons equipped with a grost advantage, the Japanese as a people had been continually studying the Colness for thousands of years and he himself had continuously studied thems for thirty years; nevertheless the judgment of the Japanese proved erroneous from time to time. It was difficult for Englishmen even to, dininguish the features of and Chinese from another until they had studied them for years. Actually Japan and Great Britain were being hoodwinked by the skilful liplomatic tactica of the Chinese officials in the matter of the Fakumen Railway. So it was in the case of the Kwangtong-Hankow Railway. The failure of Japan and Great Britain in

thesp

mattore was dos entirely to their. ignorance of the true situation, of China. There were hundreds of Machisvollis among Chinese diplomatic officials, Those who dealt with. China without a knowledge of this face must be novices in diplomacy. Englishman

word foolishly honest (bakasyafik) and sawers the Japanese. Foolish honesty was not a bad

MAJOR-GENERAL Frederick. Tobson who kas just been appointed colons; of "Tas Buds," in succession to the lata. Lieutenant-General :" Sir Julian A. R. Rainus, G.C.B., passed all his regimental career in that distinguished/regis ment, entering it so far back as the year 1857, clae negative evidence. I have reason to doubt and eventually attaining to the command of the the inference drawn by them on the night in are subsequently commanded the Third ("The

and Hattalion, then at Hongkong, in 1883.||

A very interesting game of bowls was played But taking the doctrine of the effect of reoccupying for some gears. China further Tuesday aftercoon, between leami captalond by taken as to what they saw of the junk as sk8, 92, and from 1897 to 1gas he'commanded the troaction as stated by Lord Justice Vaughan | declines to acknowledge Fortuguese jurisdic Inspector Fenton and Inspector Robertson, The

of the junk was not formally challenged so as Williams, is requires express words to undo find in the waters of Macan. The Daria de match resulted in a win for Mr. Robertson's team led by the steamer. Moreover the identity troops in Ceylon with the raak of major-general

Nolletar, which has a "semi-official-status,

to which he was promoted in the firer mustion.. by eleven points. The is not strictly accurate to say, the point decide rights already acquired, and if there are no

tid; it was only done somewhat superficially through the China war, 1800, saclading the Messrs. Stuart, Langley, Grant and Fanton in cross examination, so that the onow was on hand-to-hand fight with the hordes of Chris ed by the judgment which has determined them.vened in favour of China, and it is understöd

the Holstein; and many points occur to me Here the case meets the principle of the that the British Minister at Lisbon ban, had...a | (skip)~~az points, jo

Masate, Pitt, Walt, Sim and Robertson (skip) which if proved might have gone far to sub and the assault and capture of the Taka" Foru on the plains of Binho, thu action of Trogkan, decision in the solicitor mortgages casas, which, langtby conference on the subject with Senhor also went on the fact that rights had already Alarcão, Portuguese Midister for Foreign 33 points. At the conclusion of the game silver stantials the suggestion, such as a careful 92- been acquired, and could not be undone.

spoons were presented to the winning (same

amination of the junk itself, and sa to the ] (madal with clasp).

Před in the previous action' was that the plaintiffsuch words those rights must stand as acquir; } declares that the British Government has inter results are Appender. Dames of the teams and | to throw the burden of proving it on the plained year. With this gallant * Buffs he wODI

and no cruse of action, or that his action was sbad in faw ; If it had been, then clearly there would be rea judicata; for the merits of a case include its merits on the facts and its merits in

Affair