September 15, 1897.]
urged me to get information from the Govern- ment in regard to this asset as they are anxious to know whether we are going to derive anyth- ing approaching the mon y expended upon it.
The ATTORNEY-GENERAL-There is one. thing I should like to say in regard to this matter. As Attorney-General I naturally had a great deal to do with the numerous applicants who came before the Committee asking for compensation when the land was resumed, and according to them the value of the land was
from
really extraordinary. It was perfectly marvellous They thought how valuable the property was. they were being dealt with very hardly in having this valuable property taken them, and my humble endeavour on behalf of this colony was to cut down as many as these claims as possible, Aided by Mr. Sercombe. Smith we succeeded in reducing the claims, but in the end the amount paid was no doubt a very large one, Then we were dealing with
the seller. Now we bare to deal with the We suf buyer, who tells a very different tale. it is valuable property. "It is naught, it is naught," says the buyer. So you see the other "Why side of human nature. The buyers say do you demand such prices? Why don't you let us have the property very much cheaper?" That is the kind of human nature which always The presents a difficulty in the matter. reason why those people did not bid was because they wanted to get the property much cheaper than the price the Government were prepared to sell it at, and they tried to make out it was not worth so much. Ask the people who did not bid what was their reason. Surely the Government are not expected to tell what was in the minds of these people when
If the they did not bid.
Government
take my advice they will hold ori to the property until they get a reasonable price for it. In time the demand will be so great that people will be prepared to give a fair price for the ground. I am not a proft s- sional man as to values, but I should think the senior unofficial member will be struck with the idea that a good many people wanted the property much cheaper and they would not bid because they thought they would in a way boycott the Government and make them sell a great deal more. cheaply. best answer I can give. The property ought to be worth a good deal more than when the Government took it over, in its insanitary state as it has been properly I do not drained and put in good order. think the Government are to be blamed because they did not rush at the buyers and insist upon their taking the property on their own terms.
That is the
now
Hon. Ho KAI said that perhaps the price was fair, but the Crown rent had been raised, it being now about ten to twenty times what it was formerly.
After other remarks the CHAIRMAN said that the question had no direct bearing on the. vote before the Committee. Hon. members
had every opportunity of bringing this matter before the Council in the usual way.
Hon. T. H. WHITEHAED-I submit that it is quite in order. On a money vote before the House members according to "May's Parlia- mentary pract,ce are entitled to the fullest amount of information, and I submit that the Government should now give us some explana- tion as to their failure to obtain any bid whatever for the lots put up in the month of May. I have listened with a good deal of attention to the remarks of the Attorney-General, but I am just about as wise now as when I asked the question. I should like some information before
this item is recommended.
The CHAIRMAN then put the item to the Committee and it was recommended.
ADJOURNMENT.
The Committee then adjourned.
THE BENNERIZ CASE. JUDGMENT FOR THE DEFENDANTS.
[SPECIAL TELEGRAM TO THE
PRESS."]
DAILY
Shanghai, 12th August. | A lengthy judgment has been delivered in the Bennertz case by the Chinese Court. It entirely favours the defendants on all points and orders Bennertz to return the steamers.
CHINA OVERLAND TRADE REPORT:
SUPREME COURT.
7th September.
IN APPELLATE JURISDICTION.
CHEONG YAU TO AND OTHERS, APPELLANTS, V. THE BANK OF CHINA, JAPAN, AND
THE STRAITS, LIMITED, RESPONDENTS, In this case the Chief Justice delivered the
following judgment:In this case the appeal is from a judgment of my own which was pro- nounced in the Court in its original jurisdiction on the 21st December, 1896, in favour of the respondents, the plaintiffs in the Court below. The suit was brought by the respondents to re- cover from the appellants, as executors and executrix of Cheong Kai, deceased, the sum of $100,000, the amonut due under the joint and several bond of Leong Koon Sing and Cheong Kai to the respondents, dated the 25th August, 1891, and conditioned for payment to the respondents of $100,000 on-default being made by Cheong Koon Sing in the due performance and observance of the duties, obligations, mat. ters, and things coutained in the said bond.
It cannot be otherwis than casatisfactory for judge to sit on the hearing of an appeal from his own judgment, but, having regard to the constitution of the Court of Appeal in this Colony, the inconvenience cannot be avoided whenever the Full Court is called upon to re- view the decision of one of its judges sitting in a Court of first instance. The most that a
接
judge can do in such a case is to listen carefully and dispassionately to the arguments addressed to the Court on behalf of the appellants with a view of showing that his judgment was wrong, and, if he finds, either on consideration of those arguments or from his own further examination of the case, that he took an erroneous view of the facts or of the law of the case, to be willing to admit the mistake and reverse or modify the judgment. So much I Lave honestly tried to do in respect of the present appeal.
219
sued Kan Sing Toi, but that the effect of that agreement was to preclude him from doing thắt afterwards.
The first of these propositions was not argued by Mr. Robinson, but he stated at the same time that he did not withdraw it. The remaining propositions were re-argued at more or less length. So far as the whole of these grounds of defence go, it seems again sufficient for me to say that the opinion which I expressed with regard to them on the original hearing remains unchanged, that is to say, I do not think the appellants have succeeded establishing them as a defence to the suit.
în
But Mr. Robinson was not content with urging again the contentions of law which had been put forward on behalf of the appellants at the original hearing. He advanced two fresh propositions of law as applicable to the facts of the case in favour of the appellants, and he cited cases in support of them.
The first of these propositions was that, whether the debiting of Kan Sing Toi's ad- vance account was to be regarded as the taking of additional security or of substituted security, the cancellation of that debit entry on the 30th June, 1894, was equivalent to a surrender of the security; that such surrender operated to the prejudice of the surety by depriving him of a security to which he was entitled; and that the surety was therefore discharged, either absolutely, or to the extent of 897,229.23,
the sum for which the entry was actually made, or, at any rate, to the extent of Tls. 30,000, the sum for which Kau Sing Toi. on the 27th
March, 1892, expressly anthorized the entry to be made. In considering this contention it is desirable to indicate the view which I take of the nature of the security in question. This point is thus dealt with in my judgment pro- nounced on the original hearing:-"The ques- tion to be determined is, whether the Bank, in agreeing to debit Kan Sing Toi's account with the amount of the bills of the Kwong Fuk and the Wing Tung Yan Banks, intended to take a further security in lieu of the original security, that is to say, the liability of Cheong Koon With regard, first, to the facts of the case, Sing for the bills, or whether they merely in- it was said in the judgment under appeal tended to take a security additional to that quoting a remark of Mr. Drummond, counsel liability. It is evident that this is in the main for the presont appellants-that the law a question of fact, and it will be gathered from what I have already said that there was no in- formed a very small part of the case, and the main difficulty was in deciding as to the effect tention on the part of the Bank to release the of the evidence." This view of the relative liability of Cheong Koon Sing and to accept a further or additional security in lien of it. I importance of the law and the facts of the case was confirmed at the hearing of the appeal, by think that what the Bank really did was to far the greater portion of the arguments ou agree to have recourse to any margin available on Kan Sing Toi's account as an additional both sides being directed to the character and effect of the evidence. A perusal of my judg-security to the claim which they had against ment on the original hearing will show that Cheong Koon Sing, and that sucli recourse was I then formed a clear opinion on these points not by way of substitution for that claim. And and also that I stated that opinion very fully. it is clear that the taking of security which is It appears to be sufficient for me now to say merely additional to, and not in lieu of; that that, although I followed very carefully Mr. originally taken from the debtor will not dis- Robinson's elaborate argument for the appell- charge the surety. It was said by North J. in ants on this part of the case, I did not find that Clarke v. Birley, 4 C.D. 437, 'It has never it changed or modified the views which I had been held that the mere acceptance of additional already formed and expressed in my judgment. There was, of course, no additional evidence taken at the hearing of the appeal, and I do not think that any fresh light was thrown by the argument for the appellants on the facts as they were presented to the Court of first in- stance. The result, therefore, is that, so far as
the facts of the case are concerned, I abide by my former opinion that they make entirely in favour of the respondents.
With regard to the legal aspects of the case, may be convenient to re-state the proposi- tions of law advanced on behalf of the appellants at the original hearing. They were formulated by Mr. Drummond in the following terms. "That the effect of the arrangement made between the creditor (the Bank), the debtor (Cheong Koon Sing), and Kan Sing Toi was to discharge the surety (Cheong Kai) first, by depriving him of a remedy to which he was entitled, or, in other words, by making a ma- terial alteration of the debtor's position without | the assent of the surety and without any reser- vation of the rights of the creditor against him; secondly, by giving time to the debtor; and, thirdly, (a by discharging the debtor, and (b) by taking substituted security." With regard to the point as to depriving the surety of a remedy to which he was entitled, it was said, iu further explanation, that before the agreement of the 27th March, 1892, the debtor could have'
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security, unaccompanied by a contract to give farther time, would produce the result of re- In this view of the mat- leasing the surety.' ter-to which I adhere-Mr. Robinson's argu- ment must be limited to the effect of the sur render by the creditor of an additional security,
The case principally relied upon in support of the argument was Pledge v. Buss, Johns. 663. The effect of this and other cases relating to the same subject-matter is, as was said by Han- nen J. in Wulff v. Jay, L. R.7 Q. B. 764, very clearly expressed in the notes in Rees v. Ber- rington, 2 White and Tudor's Leading Cases in Equity, 6th ed., at p. 1141. The note re
ferred to is as follows:-"As a surety, on pay. ment of the debt, even a mere endorser of a bill of exchange, is entitled to all the securities in the hands of the creditor, whether he is aware of their existence or not, even though they were given after the contract of suretyship, if the creditor who has had, or ought to have had, them in his full possession or power, loses them or permits them to get into the possession of the debtor, or does not make them effectual by giving proper notice, the surety to the extent of such security will be discharged.
A surety, moreover, will be released if the creditor, by what he has done, cannet, an payment by the surety, ve him the securities in exactly the same condition as they formerly stood in his hands.”
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