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Penalty." The defendant not having obtained the plaintiff's consent to establishing himself in business, and the plaintiff's demand for pay. ment of the liquidated damages having been refused, this action, was brought for the re- covery and for an injunction till payment.
THE HONGKONG WEEKLY PRESS AND
the Court could create or carve out a new covenant for the sake of validating an instru ment which would otherwise be void. Earlier in his judgment occurs this passage, which has a direct bearing on the point here: "But if the plaintiff's agreement be good, then in every The defendant by his answer, while admitting such case the Court could carve out of the that he is carrying on the business of a mer- unreasonable distance a distance which would be chant, in the first place denies that such is a reasonable.. Thus, if the covenant were, e. g., breach of clanse 7 of the agreement. This con- not to carry on a business in any part of the tention rests upon the distinction drawn by his whole world, the Court would be asked to uphold counsel between the term "merchant" and the it by construing it as a covenant not to carry on words "general merchant in clause 7, and the business within, say, a limit of two miles, supported by the meanings which (there was which would in effect be making a new cove- some evidence to show) there expressions bear nant, not that to which the parties agreed." in Scotland, where the agreement was And in Mills v. Dunbam (1391 Ch. 1,576) the signed, and of which country the defendant the same judge, after referring during the is a native. I may observe here, in fairness to argument to Baker v. Hedgecock, in the judg- him, that I am quite satisfied that he through.ment (at p. 580) again lays down the proposi- out honestly believed that there was nothing in tion thus-"Where there is a question of sever- the agreement which at all precluded him from ing the good from the bad part of a covenant setting up in business as he did,
or agreement of this kind, the Court must find in the agreement itself sufficient ground for making the severance; the Court must take great care not to create a new agreement for the parties, nor carve out of an unreasonable agree- ment something which would be reasonable, for the sake of upholding what would other
The second ground of defence raised by his answer is that he was engaged to serve the plaintiff in his business only of general mer- chant or tailor, and that the restriction imposed upon him by clanse 7 is in excess of what was necessary for the protection of the plaintiff in
that business, and is "therefore oppressive, un. reasonable, opposed to public policy, and void."
The plaintiff's contention, on the other hand, is (1) that carrying on business as a merchant or as a general merchant, assuming there is any distinction between them, is alike a breach of clause 7; (2) that the clause protects not only the plaintiff's business of W. Down, but also his business of H. E. Reynell & Co.; and (3) that it is not in restraint of trade, and that the £500, mentioned in clause 10, is to be con- sidered only as a premium which defendant, if he started in business, was to pay plaintiff for the knowledge and experience which he would have acquired while in the plaintiff's employ. ment. This last contention, however, was at the hearing practically abandoned, and that part of the case was argued on the general principles applicable to provisions in restraint of trade.
On the second point I hold that the true construction of the clause, when the agreement as a whole is examined, is that the protection which it gives to the plaintiff extends only to his business as W. Down, and not to his business
as H. E. Reynell & Co. But then it is clear from the defendant's own evidence that he did deal with some of W. Down's customers in that part of the business which he, while servant of the plaintiff, had developed: the extent of such dealing is of course not material. It is not necessary, in the view I take of the case, to express any opinion on the first point, viz.,
There were
wise be void.”
There will be judgment for the defendant. After some argument on the question of costs his Honour said he thought costs had better abide by the event and the judgment would therefore be with costs.
JELEBU MINING AND TRÅDING
COMPANY, LIMITED.
The thirteenth ordinary general meeting of the shareholders of the Jelebu Mining and Trad. ing Company, Limited, was held at Singapore on the 29th May, Mr. J. P. Joaquim, Chairman, pre ding. There were also present Mr. A. Reid, Mr. G. Partile, directors, Mr. Yeo Swee Hee, and Mr, E. Schwabe, secretary.
The Chairman explained that this was the adjourned meeting which stood over from last Saturday, and the report and accounts having been in the hands of the shareholders during the prescribed time he proposed that they should be taken as read. The report went fully into the operations of the Company during the last half year, and he had nothing to add to it. If there were any questions any shareholder wished to ask he should be pleased to answer them.
On the motion of the Chairman, seconded by Mr. A. Reid, the reports and accounts as pre- sented were adopted.
The Chairman moved, Mr. Reid seconded,
the retiring director, should be re-elected.
Mr. A. J. Gunn was reappointed auditor on the motion of the Chairman, seconded by Mr. Reid,
This concluded the business of the meeting. -Free Press.
SPECIAL PORTS IN JAPAN.
[June 10, 1896.
land Sea, whenever she thinks necessary in case of an emergency. If she considers it disad- vantageous to allow foreign vessels to call at Moji, she can at any time close the port by prohibiting her own vessels engaged in foreign trade from entering there at the same time. The coal exported from Moji. amounts to 340,000 tons a year. All this coal will have to be sent to Hakata if Moji is not to be a special port, and in consequence Japan will have to lose a million yen in freight on account of coal alone, Hakata being about thirty miles farther from the Kyushu coal fields than Moji. Then the opening of the port being a commercial necessity, and their being no real cause for the fear expressed in military circles, it is expected by many business men that the Government will finally decide to apply the new law also to Moji.—Japan Gazette.
THE JAPANESE MERCHANT.
The longer we live in Japan the more difficult does it become to make any thoroughly accurate analysis of Japanese character. Many men have written many essays on the subject, but the impression conveyed in every case is that of a subjective, rather than an objective, picture. If we could approach the question from the proper point of view, whatever that may be, we should probably find no difficulty in agreeing about the solution, but there are such a multitude of prejudices to be got rid of on the threshold and so many traditional conceptions of cause and effect to be amended, that somehow we never find the proper point of view. The Japanese merchant, for example, is generally regarded by the for- eigner as a very inferior sort of being, lacking the first element of commercial success, namely, a due perception of the value of good faith, hnd deficient also in the capacity of organization and perseverance. A part of this hostile judg- ment has become almost a household word.
Should
Nobody ventures to deny that commercial probity is sadly deficient in Japan, and that commercial progress is correspondingly retarded. Yet, it is difficult to reconcile these theories with some facts that thrust themselves on our observation. Who are they that have derived most advantage from the foreign trade of the country; the foreigners who originated it, who have taken all its risks upon their shoulders and who have provided the capital and the experience neces- sary for carrying it on, or the Japanese who scarcely anything to lose? There can be no came into it with everything to learn and
doubt about the answer. One fact speaks volumes. The bulk of the trade has increased nearly three-fold during the past ninė and it was carried, that Dr. Lim Boon Keng, years, but the number of foreigners engaged
in it has remained almost the same. it not follow that the gains of these men are proportionately greater? There busi- least twice as well as before. But there is no ness having trebled, they ought to thrive at
evidence of such prosperity on the foreign side. Only the Japanese flourish, fare sumptuously, and build up big fortunes. Westward of Yoko- hama proper the Japanese settlement grows perpetually until what was its verge a quarter of a century ago is now its centre. It seems that the lion's share of profit has fallen to the Japanese, whatever may be thei defectar and incapacities when measured by a Western standard. Nor is it in the matter of profit only that the Japanese can show a better record. They are also gradually and steadily encroaching upon the field hitherto occupied almost exclusively by foreigners. It has been a generally received article of faith that what is called "direct trade" must remain for a long time beyond the reach of the Japanese mer- chant, owing to his ignorance of foreign markets and his want of financial facilities. Besides, into force and vessels of Treaty powers can call even the Japanese themselves must recognise at any port where Japanese vessels enter. It that they could not possibly find better, cheaper, is feared, therefore, that it is dangerous to or more convenient commercial intermedi- make such a special port of Moji, which stands aries between themselves and the outer world at the mouth of the Inland Sea and than the resident foreign merchants. At first, forms a juncture of Kyushu, and Sanyo-do. too, the attempts made by the Japanese indivi- Such was the ground of the General Staff duals or companies to shake off the alien that their Department's objection to the opening of middleman proved such fiascos Moji. But speaking.from the point of view of example was expected to be completely de- International law, such a fear is unfounded, terrent. But it was not. The ambition did for Japan can prohibit foreign vessels entering not cease to be effective because its early re- her territorial waters, which include the Insults were disastrous. Little by little the Jap-
THE POSITION OF MOJI.
whether the distinction sought to be drawn between merchant and general merchant in the special circumstances of this case be sustained For in my judgment the defendant's plea as to restraint of trade is made out. The restriction imposed by the clause is larger than is reasonably necessary for the fair pro- tection of the plaintiff; it is therefore-accord- ing to the latest authorities on the subject, to which I was referred by counsel on both sides-unreasonable in intendment of law, and The law relating to the entrance and clear- accordingly void. It was, I think, not seriously ance of vessels engaged in foreign trade and disputed by plaintiff's counsel that a restraint to the importation and exportation of goods of the defendant from trading in Japan," by such vessels outside open ports having could not be supported. The plaintiff carried been issued with the consent of the Diet, says on business as W. Down at Hyogo only; even the Yomiuri, the Government has selected as H. E. Reynell & Co. he carried on business various ports for enforcing the law therein. only at Hyogo and Yokohama.
But Moji alone is not included in the selec- therefore other treaty ports-for that is all that tion, owing to objections raised by the Army Japan" in such agreements between British Department. Though the law is at present subjects really means where the plaintiff's applicable to Japanese vessels only, all the ports interest could not require that the defendant to be made special import and export ports should not trade. It is true that in a somewhat under this law are, it is said, to become similar case at Shanghai in 1888 (Lane, Craw-open ports, when the revised treaties come ford v. Phillips) tl.e expression China Was on the analogy of Baines v. Geary (35 Ch. D. 154) cut down to Shanghai and the other ports in which the plaintiffs had business dealings dur- ing the defendant's employment by them; but counsel for the defendant here referred me to the later case of Baker v. Hedgecock (39 Ch. D. 520) where Judge Chitty commented on Baines v. Geary. He said that he was not quite sure whether he read the judgment aright, but be did not think Mr. Justice North had intended to lay down any such principle as that
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