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the resources of the country will be developed, and its prosperity will continue to increase?
Still more authoritative and still more to the point is the following extract from a despatch of the Secretary of State for the Colonies to the Governor of the Colony, bearing date the 6th January, 1899. In this despatch Mr. Cham- berlain communicates to the Governor the views of Her Majesty's Government as to the future administration of the leased district, and in paragraph 24, dealing with the question of titles to land, there occurs the following passage:— "The examination into titles should not be of too technical a nature, and where lengthened occupation or improvements can be shown, with no adverse claims from private individuals, a Government title should be granted, even if no other is forthcoming. Security for all reason- able rights in regard to land will be a great inducement to content and loyalty and to the popularizing of British rule."
THE HONGKONG WEEKLY PRESS AND
Convention from being expropriated or dis- possessed of that right.
During the hearing of the case counsel for plaintiffs admitted that Chinese fisher- men had been in the habit of dredging for shells and coral for the purpose of lime-burning from Lantao M.L. 2 (the locus in quo), openly and believing themselves entitled as of right so to do, without interference by any one, from the limits of living memory until the granting of the lease of the above lot.
When looked at, this admission is nothing more than an admission of a habit; and, as such, may be evidence to help establish a right. But until the habit, either by itself or in company with other evidence, establishes a right, it re- mains a habit and cannot be styled a right.
As fishermen have been in the habit from
This direction of the Secretary of State seems to be in accord with the following proposition which was advanced by counsel for the defen- dants arguendo in the case of Attorney-General for British Honduras v. Bristowe supra : to the nature of the right and title acquired by the defendants against the Crown, there is no instance on record where the Sovereign of England, having assumed the territorial dominion over a colony, has ever attempted to oust the rights of private individuals acquired by long possession and long industrial occupa- tion." I have been unable to trace the reference given for this proposition to Dana's edition of Wheaton's International Law, but I believe the proposition correctly states the practice of the British Crown, when assuming the sovereignty of new territory.
I regret that the Crown was not represented at the hearing, since the validity of the lease granted by it to the plaintiffs has been called in question. It would seem that the Crown was entitled to have this suit restrained and its rights on the subject-matter of the litigation determined in proceedings to which it was itself
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Before defendant can successfully set up that he has been expropriated by the granting of the lease of 20th December, 1899, he must prove that he has been dispossessed of a right which he en joyed under Chinese municipal law before 1st July, 1898. Moreover, he must establish that right by recourse to Chinese municipal law. Admitting that the defendant and his brother- time immemorial of taking coral and shells without let or hindrance from the fundus maris belonging to the Emperor of China, he has yet to show that by the municipal laws of China such a proved habit has created a right in him and his comrades which he could maintain in Chinese court.. That proof has not been forth- coming. And since the right must be proved by Chinese law, it follows that no principles of English law may be utilised to prove that by anology or directly, a right existed under Chinese law.
The only other source of law available is publie international law: but that governs the relation of nations inter se, and is not a guide on ques- tions affecting the relations of a sovereign and his subject, which are regulated by municipal law.
Notwithstanding however that the defen- dant has по cause to complain of an OX- a party: Attorney-General v. Barker, L. R. 7propriation guarded against in the Convention, Exch. 177. In that case Cleasby, B., said, at p. 186"I have understood it to be a general rule of law that where the title of the Crown to property comes in question, the Crown has the right to prevent that title being decided in any suit between subjects, and is entitled to have it decided in a proceeding to which the Crown itself is a party."
it may be that, since 1st July, 1898, when the locus in quo became a portion of the leased territorial land and waters of Her Majesty the Queen, the defendant has, as a subject of Her Majesty, acquired certain rights of which the lease of the 20th December, 1899, deprived him. The rights of sovereign and subject in respect of the newly acquired territorial waters may be said briefly to be that the Crown has the right of ownership in such waters and the bed of such waters subject to the public right of navigation and anchoring in them: and that the Crown has also the rights of fishing subject to a right of a common fishery in the subject.
On the whole case, then, I am of opinion that the defendant has established the right to which he makes claim; that the letting of the premises by the Crown to the plaintiffs involves a denial and deprivation of that right and is an expropriation of the defendant within the mean- ing of the Convention; that by the terms of the It is contended for the defendant not that Convention the Crown was unable to confer on
rights of navigation or of anchorage have been the plaintiffs a title involving such expropria- infringed but that the right of a common fishery tion; and that the plaintiffs are consequently has been infringed, because such right carried unable to make title to the premises in exclusion with it a right to the bottom of the sea and there of the defendant when acting in the exercise of fore to the contents of that bottom. That how his right. In my opinion, therefore, the plain-ever was a mere statement of counsel unsupported tiffs are not entitled to maintain this suit against the defendant, and judgment must be entered for the defendant, with costs.
The Acting Puisne Judge said The con- clusion at which I have arrived in this case is, I regret to say, at variance with the conclusion arrived at by the Chief Justice. Having had an opportunity of reading that judgment, I adopt that portion of it which is introductory and sets out the facts of the case.
By a Convention dated 9th June, 1898, it was agreed between the Governments of Great Britain and China that the limits of British territory should be enlarged under lease. In pursuance of the Convention, a certain portion of Chinese territory which includes the locus in que in the present case, was leased to Great Britain from 1st July, 1898.
by authority. There are several reasons against this view. First it is incontestable that the fundus maris in territorial waters is vested ab- solutely in the Crown: this absolute ownership of the soil carries with it the absolute owner- ship of what is found on, in or under the soil: and I can find nothing to countenance the idea that the subject has, by common law or in any other way, a right to joint-ownership in the fundus maris or to participation in its products. "Next, the right of a common fishery enjoyed by the public is a floating liberty of fishery with nets, hooks, etc., and is the right of fishing in the sea and public rivers open to all the public (see Hall on Seashore, pp. 50, 51, 52, 2nd edi- tion). Thirdly, the shells taken by the defendant
were dead shells or the shells of fish des- troyed by natural causes before capture. In As lessee of the locus in quo the Government the case of Bagot v. Orr. 5 R.R. 668, the of Hongkong on the 20th December, 1899, sublet Court, while laying down that prima facie every that locus in quo to the plaintiff firm with the subject had a right to take fish upon the sea right to search for and obtain coral or shells shore, paused before it would establish a general from the bed of the sea, but so as not to inter-right to take shells in the absence of authority fere with fishing and navigation.
Under this lease the plaintiff firmi sues the defendant for damages for trespass and conver- sion, to which defendant pleads that he has a right to take coral and shells because he had that right before 1st July, 1898, is an inhabitant of the leased territory, and is protected by the
to support a claim of a right to take shells. A fortiori, it appears to me, should this Court panse before establishing, in the absence of supporting authority, a general right to take shells from the fundus maris. The distinction drawn between fish and shells is a clear one. A common fishery, being a right to take fish in
[July 7, 1900.
the ses and public rivers open to all the public, does not, therefore, in the light of Bagot v. Orr, include a right to take dead shells.
In my judgment, accordingly, defendant has failed to show either that he has been dispos sessed of a right which he enjoyed prior to 1st July, 1898, or that he has been deprived of any right which scorned to him on and after that date. I am also of opinion that the Crown, sa absolute owner of the fundus maris in question, was not prevented by any known rule of law from granting to the plaintiffs the rights con- ferred by the lease of 20th December, 1899,
I hold, therefore, that the plaintiffs are entitled to ten dollars as damages and to their costs of
the suit.
Judgment for the defendant was given. - Mr. E. Hamilton Sharp (instructed by Messrs. Deacon and Hastings) appeared for the plaintiffs and Mr. M. W. Slade (instructed by Messrs. Wilkinson and Grist) for the defendant.
July 3rd.
IN APPELLate JubisDICTION.
BEFORE HIS HONOUR SIR JOHN CARRINGTON C. M. G. (CHIEF JUSTICE) AND His HONOUE T, SERCOMBE SIMTA (PUISNE JUDGE).
THE MAN ON INSURANCE CASE.
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Judgement was given in this case. The Chief Justice said – This case before the Court on appeal from a judg- ment pronounced by myself on the 26th February last. It is an unhappy incident of the constitution of the Court of Appeal in this Colony that & Judge must, unless he is absent, sit on the hearing of an appeal from his own decision. The least that he can do in such circumstances is to carefully review his previous decision in the light of the further arguments placed before him on the hearing of the appeal, and to make sure, as far as he can, that he has not misapprehended the law or the facts or both, as the case may be. If he finds that there has been such misapprehension, it must be expected of him that he will be frank enough to say so and to rectify his mistake.
This duty of careful review I have honestly endeavoured to discharge in the present case. But I suppose it will occasion little surprise or disappointment when I say that I see no reason, in consequence of this fresh examination of the case, to alter or modify the conclusions which were stated in the judg- ment under appeal. Those conclusions still correctly represent my opinion on the questions which came up for decision in the case, and I desire that the judgment in which they are em- bodied may be regarded, mutatis mutandis, se my judgment on this appeal.
There are only two new points which were raised by Mr. Slade in his argument for the appellant and to which it seems necessary for me to refer.
In the first place it was said that in the case of a company limited by shares, as is the com- pany which is a party to these proceedings, it is not made necessary by statute that articles of association should be registered along with the memorandum of association; that the provision at the end of section 18 of the Companies Or dinance, 1865 on the construction of which the decision turned in the case now under appeal-applies only to proceedings properly requisite and essential to the formation of a company, and cannot therefore apply to articles of association where the regis trations of such articles is optional; and that the certificate of incoporation given by the Registrar cannot be extended in its effect
so as to make it conclusive evidence as to mat- If this ters not necessary to registration. argument is well founded, it follows that the certificate of incorporation given by the Regis- trar to the Man On Insurance Company, Limited, had no relation to and no effect on the articles of association, and cannot therefore be held to make them valid, notwithstanding the admitted defect in their execution.
This argument is ingenious and, if it is to prevail, the ratio decidendi of the judgment under appeal is gone. But I think a little con- sideration will show that it cannot prevail. Let us consider the position of section 18 in the
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