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His Lordship-Oh no, I cannot allow such an arrangement to be made in Court. You can come to any arrangement you like between yourselves, but you cannot appear for a person who is not a party to the suit.
Mr. Seth I have no authority to employ a solicitor without an order of the Court.
His Lordship-I do not see how I can help yon, Mr. Gedge. If plaintiff gets judgment I do not see how it affects you now,
Mr. Gedge Quite so; I have nothing to do with the property.
His Lordship-I think it is a futile claim. Plaintiff then spoke to purchasing the salt, and at the conclusion of his examination
His Lordship said--It will be the most cou. venient course to make a note in my book that as I find the man was adjudicated a bankrupt I refuse to allow Mr. Gedge to cross-examine as he has had no instructions from the Official
Receiver.
THE HONGKONG, WEEKLY PRESS AND
Mr. Gedge-If the Court now decides that this salt belongs to the plaintiff, it will be given up to him or rather the proceeds of it. This is not just to the large body of creditors; it is not just to my client or the creditors. I can:{" prove by evidence now and by cross-examining this witness that plaintiff did not pay for the salt at all.
His Bordship I am quite willing to listen to any application the Official Receiver might make, but I cannot listen to you because you are nothing. It is a curious position altogether
Mr. Mounsey-We can show that the plain- tiff did pay for the salt.
His Lordship-Well, the Official Receiver makes no application. He knows all about the case, and if he makes an application to me I will
take notice of it.
.
Mr. Gedge-I have witnesses to call if he chooses to be represented.
His Lordship-He cannot be represented to- day; that is perfectly clear. It is not for me to say what application should be made; that is obvious.
Mr. Seth, who had gone out of Court, now returned, and his Lordship asked-Have you any application to make about this case? are the only person who has a claim to the perty. I cannot listen to Mr. Gedge.
You
Mr. Hastings said the charter party was ad- mitted by the defendants. It was dated 4th May, 1895, and was between Butterfield and Swire, the charterers, on the one part, and Captain Harry Wilson of the other part. The Stanfield was chartered for two separate trips from Sandakan to Hongkong for the purpose of carrying cargoes of timber. The only pro- vision in the charter party that the Court would be concerned with was the one re- lating to the payment of freight. By that ❘ provision the defendants agreed to pay freight
the vessel
22 cents of as follows:- the Mexican dollar for each and every cubic fout of timber delivered to the defendants at Hongkong." For each and every cubic foot delivered" were the words on which the case turned. One of the trips had already been made. The timber on arrival here was measured by three persons, one on behalf of the plaintiff. one on behalf of the defendants, and one on behalf of the Godown Company at Kowloon.
on
་་
$6
His Lordship-The question is narrowed down to a very fine point, isn't it? It is a question of local custom.
**
[October 24, 1895.4
The plaintiff's evidence, taken on commission, was then read. He spoke of entering into the charter party, and to bringing the first load of timber to the defendants at Kowloon godowns on the 2nd September. The specification of the contents he drew up differed very little from that made by the Kowloon Godown Company, The defendant's specification differed consider. ably, and he had received only $4,076.87, while he calculated the total freight amounted to $4,822.20.
Inspector Stanton produced the standard, measures of the colony, and Chinese assistanta at Kowloon spoke to the accuracy of the company's specification.
Mr. Arthur Turner, architect and surveyor, said the proper way of finding the cubical con-- tents of a round log was to take the girth in the middle, find the superficial area at the section, and multiply that by the length. If the logs tapered it was a fair way to measure the girth at the middle or to take the 'mean. It was the best way to take the diameter of the circle and square it, and multiply that by 7854, and then multiply by the length. The cubical contents of the log were then ascertained. He had checked the contents of the logs contained in the specification, and few of them only were wrong in a slight degree. The total difference was about 35 feet. By the rule he had mentioned the whole of the timber in the log is measured. The defendants” rule for measuring timber was different, and the result of that rule was that in buying,round timber it had to be cut up in a square, and so there was some waste. By the trade measure- ment about 23 per cent. of the timber was lost, and "each and every cubic foot in the log" was not measured. That was a fair rule between vendor and purchaser, because it allowed for loss in squaring the log. Of course a ship could earn much more in freight, by carrying square logs than she could by carrying round logs. If round logs were sold the correct area would have to be taken.
Cross-examined by Mr. Master-Witness had had no experience in the measurement of timber for freight. There was a universal custom in measuring timber for sale and purchase, and it was the trade measurement.
Mr. Hastings said the plaintiff was not paid according to his measurement, but according to an entirely different one, and he wrote to Messrs. Butterfield and Swire on September 14th asking to be paid according to his measure- ment. Messrs. Butterfield and Swire replied that they were willing to pay according to the cubical measurement made in the customary manner in this port." Those letters contained the pith of the dispute in this case-whether freight should be paid according to the ordinary cubical measurement or by some other measure- ment stated by the defendants to be the Hong-, kong customary measurement. The result of the calculation made, by the defendants by their own method was that the cargo contained 18.075 cubic feet. According to the plaintiff's specifi- cation the total carried was 21,432 cubic feet a difference of about 3,300 cubic feet, which meant a loss to the plaintiff of over $700. The cargo consisted of 795 round, logs, a number of square logs, and a number of planks but there was no dispute about the measurement of the pro-square logs and planks, and the only dispute was as to the measurement of the round logs. The method of ascertaining the cubical contents breadth, and depth; but there was a complica- of a solid object is by multiplying the length. tion in the case because the logs were round. The proper way of ascertaining the cubical contents of round logs is by first ascertaining.
Mr. Master, for the defence, said the words each and every cubic foot" had a special'signi- / the girth at the middle, then ascertaining the superficial area at the section and multiply.ficance to the trade. It was the same as "per cubic foot," and did not prevent the timber from being measured according to trade custom; but the timber could not be measured by any formula the plaintiff chose to adopt at the last moment in order to get more freight; the timber. must be measured only according to well known usage. The plaintiff had been used to carrying timber and therefore, he must have known what the trade custom in Hongkong was if he did not know he ought to have made himself acquainted with it. If Mr. Turner's formula were adopted too much time would be taken up in measuring trade logs, and the measurement adopted by the defendants was the one adopted by everybody connected with timber. Counsel then quoted several cases in support of his argu- ment and called his witnesses.
Mr. Seth I ask your Lordship to stay execu tion in this case.
His Lordship-I haven't got as far as the execution yet. What you want is an adjouru- ment, isn't it?
Mr. Seth-Yes. I ask your Lordship to ad journ the case in order that I may call a meeting of creditors:
Mr. Mounsey-I object to an adjournment. His Lordship Oh, yes, of course, I know, and I am extremely sorry for you. But I must adjourn the case until Tuesday. The creditors will have to pay the costs of the adjournment I cannot do it in any other way, as Mr. Moun- say has been put off so long, and it is perfectly clear that Mr. Gedge has no lucus standi.
Mr. Seth-I do not know whether I can bind the creditors to pay the costs because I am acting without their authority.
Mr. Mounsey-The witness who is in the box now will be taken to the gaol as soon as he has given his evidence. as there is a warrant against him.
His Lordship-They're a nice lot all round. (Laughter).
Mr. Seth-I do not feel justified in binding myself to pay the costs.
His Lordship-The case must go on then. I draw your attention, Mr. Official Receiver, to the fact that the bankrupt has sufficient funds of his own to pay a solicitor with that is a thing to remember in the course of the bank ruptcy.
The evidence was then proceeded with and judgment was given for plaintiff.
16th October.
WILSON v. BUTTERFIELD AND SWIRE.
This was an action brought by Mr. Harry Wilson, master of the British barque, Stanfield, against Messrs. Butterfield and Swire to recover $755.33, balance due on a cargo of timber de- livered to defendants under a charter party.
Mr. Hastings appeared for the plaintiff, and Mr. Master of Messrs. Johnson, Stokes, and Master's office) represented the defendants.
was
it by the length, and another to take the mean girth by measuring the girth at both ends and in the middle. The correct results were obtained by taking the girth at the middle of the logs. The defendants had set up a method of finding the cubical contents of the logs which they referred to as the Hongkong trade cubical measure- ment. The effect of the trade measurement was that the whole cubical contents were not
This was the case for the plaintiff, as Mr. call evidence as to the proper method of measur- Hastings said it was necessary for him only to
ing a enbic foot.
Mr. H. M. Brown, clerk in the employ of Messrs. Butterfield and Swire, said he had been managing the timber department for more than four years. Their timber steamer Mennon arrived from Borneo about every three weeks, and the Godown Company at Kowlcón usually discharged her. Freight was charged on the a figures made out by the Godown Company Ha remembered the Altaire coming with timber from Sandakan in January, 1894, and two-fifths of the cargo was round logs. The cubic contents were calculated according to the rule in Table 2 of Hoppus, and freight was paid on that calculation.
ascertained, as slabs at the edges of the logs were cut off and a square formed in the centre; therefore when they made use of the trade measure they merely measured the area of a log cut square out of the log. That might be a very fair and good rule as between a vendor and a purchaser of timber because the sides were not of so much value as the centre, and there- fore this rule was used simply for the purpose of calculating the valuable contents of the timber. But as between a carrier and the owner of the timber such a rule was not at all fair and reasonable, because the carrier had to carry the side pieces as well as the centre pieces. Then again such rule was certainly not admissible in this case as it was in direct contradiction to the words of the charter party, which were very plajn—the plaintiff was to be paid ¶ for each and every cubic foot of timber delivered." Those words would not permit of the introduction of such a rule as the defendants wished to set up in this case. The question was, what is the cubic foot mentioned in the charter party? Counsel submitted that the only way of mea- suring a cubic foot was by the standard mea sures of length laid down by the Government of the colony, and not by any other method adopted by the defendants.
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Cross-examined-The freight was paid in accordance with the bills of lading, and was subject to re-measurement in Hongkong. There was no clause in the Memnon bills of lading about the Hongkong trade custcm as far as he knew.
Mr. Newton, employed at the Kowlcon Godown cargo was
Company, said
the eld
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