1
June 11, 1898.]
were necessary for the purpose of the motion, and he suggested that the question with re- ference to the costs thereby incurred should be deferred.
6th June.
IN APPELLATE JURISDICTION.
BEFORE SIR JOHN Carrington (CHIEF JUSTICE) AND MR. JUSTICE Wise (PUISNE JUDGE).
LI SHU V. TSOI HEUNG PO AND ANOTHER. This was an appeal by the plaintiff from the decision of Mr. Justice Wise given on March 22nd. The suit was brought in the original jurisdiction to recover $5,000 for money lent to two defendants. Judgment was given in default of appearance against second defendant, and with regard to the other defendant judg. ment was given for him with costs.
Mr. Francis, Q.C., (instructed by Messrs. Deacon and Hastings), appeared for appellant and Mr. Slade (instructed by Mr. Ewens) for respondent.
CHINA OVERLAND TRADE REPORT.
9th June.
Mr. Slado, in opening the case for respondeut, said that when his learned friend opened his case on Monday last he quoted to their lord. ships a number of authorities to explain what the duties of a Court of Appeal, in on appeal from a single judge sitting aloue, were; and from those authorities he drew what he (Mr. Slade) ventured to submit were one or two true deductions, and one deduction for which not a shadow of authority could be found in any one of them. That proposition was that their lord- ships ought to go through the entire evidence in the case and then compare it with the decision of the Court below, and if they found the decision of this court agreed with the decision of the court below, they should dismiss the appeal, or if they were doubt- ful they should dismiss the appeal, but that if they arrived at a decision-without any regard for the opinion expressed by the judge who heard the case in the court below different from that arrived at by the judge who heard the case in court below, then they should grant the appeal. There was no autho. Mr. Francis said this was an appeal under rity whatsoever for that proposition, but there the provisions of the Supreme Court Re-
was an authority--an authority which his learned construction Ordinance from the decision of friend quoted-absolutely dead against it. He Mr. Justice Wise given in the Original Juris referred to the case of the Colonial Trust Com- diction of that court in the case of Li
pany v. Massey. 1896, Queens Benchi. After Shu v. Tsoi Heung Po and another. Judy quoting from the decision in this case. Mr. Slade meut was delivered on the 22nd March
said that from that decision it clearly appeared last. The hearing of the case commenced on
*that the burden of proof that the judgment was the 17th January, 1898, and continued on the
wrong lay upon the appellant, and it further 18th, 19th, and 20th. Then the further hearing appeared that if the judgment of the judge was adjourned till the 7th of March, and it in the court below was founded upon the went on continuously till the 15th of March, demeanour
or credibility of the witnesses occupying ten days. The notice of motion
whom he had before him in the witness box the asked that the judgment delivered on the 22nd Court of Appeal would be very loth to disturb March should be reversed or in the alternative his judgment. The report of what a witness that a re-hearing or new trial should be
said might be a very untrue criterion of a ordered. Of course under the provisions of the
man's evidence. A man might have given his Supreme Court Reconstruction Ordinance there eridence well or he might have given it badly. were no provisions in detail as to the nature of He might have been a taciturn witness or he the appeal which was granted by that Ord- might have been a garrulous witness. He might inance. It simply provided that an appeal have spoken carefully or he might have spoken should exist as of right, and as their lordships recklessly. They could not see from a written were aware, there was no appeal or court of report how a witness gave his evidence, and appeal in Hongkong in any shape or form until
that must necessarily be a very powerful iu- after this. Ordinance of 1873 was passed; 80gredient in determining the judge whether to that the only guide they could have must be by believe a witness or to disbelieve him. His analogy from the practice of Court of Appeal learned friend said that the judge in the court under the Summary Jurisdiction Ordinance, below decided the case upon the wrong prin- where some detailed provisions had been made, ciple. He said that if the judge in the court or by analogy to the procedure in appeal in
below had considered the case up side down he courts in England. Under section 1 of the would have come to a different conclusion. Summary Court Ordinauce, where the appeal That was the substance of his arguments. was practically based ou a question of fact-
He said the judge ought to have considered and "the whole of that case was only on
first of all whether the money was lent, and questions of fact-the full court could deal then having come to a decision on this point with the case solely upon the evidence he should have decided whether the promissory originally taken or could re-examine any
notes were forgeries or not. He said the judge witness previously examined, and hear any had decided the case ou a subsidiary point. He further evidence, or might hear the case de decided that the promissory notes were forged. novo. Therefore it was that this notice of and it having been proved to the satisfaction of motion had been framed with an alternative the judge that the promise to pay was a in the first instance simply as an appeal for a forgery, what became of the cause of action ? reversal of the judgment on the materials It was the only part of the case on which they before the court below, but that if after hearing required an opinion. His learned friend said the whole argument their lordships should they admitted this was money lent, but that think it advisable, there should be a re-
was pure imagination on the part of his learned hearing or a new trial. After citing cases friend. He admitted that money was paid by dealing with this point Mr. Francis said plaintiff, but it was a repayment by him that this suit was brought originally for of money lent. Whatever view their lordships money leht on two promissory notes. The
might take of this evidence, he submitted it was petition filed in September, 1897, said plaintiff impossible to arrive at the decision without Li Shu was a banker carrying on business at
grave doubt. If that was their attitude of mind, 46, Winglok Street, Victoria. Defendants in
he submitted that on the authority quoted by the case were Tsoi Heung Po and Tso Cheung. his learned friend and himself their lordships Defendants were then or were recently trading must then dismiss the appeal. and carrying on business in partnership at Canton under the style or firm known as the Fu Shun Tong. Plaintiff lent to defendants on the 26th February, last year, the sum of $3,000 and on the 27th February, last year $2,000, and defendants by two several promis- sary notes made and dated respectively Febru- ary 27th, 1897, and March 2nd, 1897, promised to repay to plaintiff the said sums of $3,000 and $2,000 with interest at the rate of 14 per centum per annum within 20 days of the dates. When, however, plaintiff demanded payment defendants refused, and neither plaintiff nor anyone on his behalf had yet been paid. Mr. Francis read over the evidence given before Mr. Justice Wise, and the hearing was adjourned. ·
Mr. Francis contended that their lordships had according to all the cases cited to re-con- sider the whole of the material that was before the learned judge in the court below and no- thing else. It was no portion of the material before the learned judge in the court below what his own judgment was. If they arrived at the conclusion that to judge in the court below was absolutely right they confirmed his judgment. If they came to the conclusion he was wrong then they reversed his judgment. If after considering the material before the learned judge in the court below they were doubtful as to what their decision ought to be then they affirmed his decision, and then, and then only, did they look to his decision. In
465
conclusion Mir. Francis formally moved their lordships for a reversal of the judgment of the judge in the court below.
Their Lordships reserved judgment.
SPANISH-AMERICAN WAR.
IMPORTANT DESPATCHES FROM THE PHILIPPINES.
THE MOVEMENTS OF THE INSURGENTS.
:
COLLISIONS WITH THE SPANIARDS.
TWO SPANISH GOVERNORS TAKEN
PRISONERS.
EXPECTED SURRENDER OF THE GOVERNOR-GENERAL.
7th June.
The despatches brought from Manila by H.M.S. Swift, which arrived in the harbour yesterday afternoon, were exceptionally interest- ing. They lend one to conclude, however, that in consequence of the straits to which he has been reduced it is not at all improbable that by the time the first batch of troops arrives from San Francisco the Governor-General of the Philippines may have surrendered and the A meri. cans and their native allies may be in possession of Manila. In this event a bombardment will be obviated and the many quaint and beautiful buildings which the city contains saved from destruction. A detective in the employ of the Americans reported to head-quarters last week that the Governor-General wanted to surrender, but that his officers prevailed upon him to consent to hold out a little longer. What may be termed the beginning of the end was com- menced by Aguinaldo and his troops Monday, the 30th ult., since when they have done everything they can to weary and annoy and harass the Spaniards, already in anything but a fit condition, on account of bad feeding, to do justice to themselves in the field. Agui. naldo is reported to have completely routed them yesterday week, when he took 400 prisoners, including 28 officers. On Wednesday he took 250 prisoners and captured four field pieces, and on Thursday he was beseiging 150 Spaniards in old Cavite Church. Rather than bombard the church, which has walls four feet thick, he had decided to starve them out, and no doubt by now they have fallen into his hands. The battle last Wednesday took place in sight of the fleet on the coast between Manila and Carite. The insurgents have taken close upon 700 more rifles from the enemy.
|
On
In a communication to Consul-General Wildman, Aguinaldo's secretary reports that the insurgent forces have captured the province of Cavite, except four towns, and taken the Governor prisoner. The Governor of Batangas is also in Aguinaldo's hands and other towns are in possession of the insurgents, who are ad- vancing from the other provinces. The Sec- retary adds that the number of Spanish prisoners is about 1,200 and the number of natives who are prisoners in the hands of the Spaniards about 800.
An American officer writes that the insurg- ents are treating their prisoners very well.
Since his capture the Governor of the pro- vince of Batangas has attempted to commit suicide.
2,500 men from San Francisco are expected at Manila on the 16th. On the way they will reduce the Ladrones and coal there.
Some of the Spanish vessels which were shut np in the River Pasig have with the permission
Admiral Dewey and the Governor-General been got out and allowed to change their flag, and have been placed alongside the men-of-war, so that when the last struggle comes they may be utilised for the housing of the foreign resid. ents, other than Spanish, in Manila.
The volcano, Monat Taal, is in eruption.
THE SITUATION AS VIEWED IN MANILA.
[From our own corresponDENT. ]
Manila, 2nd June, A few days ago the Spanish were unpleasantly 'enlightened as to the value of the hopes they
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