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His Honour-Here, it appears, there was a promissory note given by the defendant to the plaintiff. The defendant comes into court and sets up in defence that it was an illegal transac- tion, a gambling transaction, and relies on 4 and 5 William IV. Prima facie, always when promissory notes are given, it is for a person | who asserts an illegal construction to show that no money was passed or that the transac- tion was a gambling transaction. Here it is said that the pr. missory note was given to obtain the release of a person over whom the plaintiff had no control at all. Judgment for the plaintiff.
P. E. SAGNOL V. W. S. BAILEY AND CO. This was a claim for commission. Mr. P. W. Goldring (of Mr. G. K. Hall Brutton's Office) appeared for the plaintiff and Mr. A. C. Holborrow (of Messrs. Deacon, Looker and Deacon) for the defendants.
His Honour in giving Judgment said:- This is a claim for $130 as commission. Owing to a misunderstanding when the action first came on, on the 23rd March, the defendants were not represented. Thinking the defendants had received due notice to appear, and having waited from 2.15 p.m. to 3 p.m., I took the case and gave judgment for the plaintiff with costs. Subsequently an application was made for a rehearing, and considering the grounds for such reasonable, I consented. The plaintiff has not satisfied me that any of the work for which he claims commission was work in accordance with the terms of his contract with the defendants, work he himself brought in to the firm. He says that work was brought in to Messra Bailey and Company by him, but he tendered for work for which he bad been asked to tender. That seems to me to be the extent of personal exertion, For such work, I take it, he was paid at the rate of $150 per month. It was not by personal exertion that he brought the work to the defendants. Judgment for the defendants with costs.
Friday, 31st March.
IN APPELLA E JURIS. ICTION.
BETOBE SIR H. S. BERKELEY (CHIEF JUSTICE) AND MR. T. SERCOMBE SMITH (PUISNE JUDGE).
TANG TSZ U. V. THE ATTORNY GENERAL.
Judgment was given in this case. At the hearing Messrs. M. W. Slade and H. G. Calthrop, instructed by Mr. John Harston (of Messrs. Ewens and Harston) appeared for the appellant; and the Attorney General (Hon. Mr. E. H. Sharp, K.C.) and Mr. H. E. Pollock, K.C., instructed by the Crown Solicitor (Mr. F. B. L. Bowley) for the respondent.
The Chief Justice said it was an appeal from a decision of the Land Court disallowing the claim of the appellant, one of several rival claimants, to the absolute ownership of a por. tion of the foreshore at Cheung Sha Wan, formerly within the territories of the Emperor of China, but since the date of the Kowloon Extension Agreement, part of the Colony of Hongkong, and officially know as The New Territories." The foreshore claimed extended for a length of about two miles along what is now part of the northern shore of Hongkong Harbour, and comprised an area of about150 acres, This foreshore, of little or no value before the Kowloon Extension Agreement, had since its inclusion, in Hongkong Harbour become of very high value. In the claim presented to the Land Court in 1901 the value was placed at $50,000; but it was stated at the Bar in the course of argument on appeal that the value now exceeded $2,000,00. In the course of his long written judgment, His Lordship decided that the appellant's case had failed entirely, and that the appellant who formerly held a certain area of the foreshore in Chang-sha-wan Bay under licences from the Chinese authorities which required him to reclaim the foreshore, was obliged by the law of China to reclaim such foreshore within the prescribed period of six years from the date of the licence, and having failed so to do, lost by lapse of time all right to the foreshore on the 26th August. 196. Consequently the appellant had at the time of the cecession of the New Territory (on the 1st July 1898) no right of any kind in respect of the
THE HONGKONG WEEKLY PRESS AND lands which he claimed, and could not there- fore require the Hongkong government either to grant him any right to the land, or to award any compensation in respect thereof.
Mr. Justice Smith first set out the Convention of the 9th June 1898 between the Emperor of China and Queen Victoria, which ceded to Britain the New Territories. He referred to the provision of the Convention against the expropriation of inhabitants in the New Territories, and set out the Order in Council dated the 20th October 1898 declaring that the New Territories were part and parcel of the Colony of Hongkong. This required that measures should be taken to reconcile the dominion of the Crown with rights of ownership. To effect that object Ordinance 4 of 1900 was enaoted on the 23rd July, 1900—the Land Court Ordinance.
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The constitution, of the Land Court under that ordinance and the powers of that court were then dealt with.
The learned judge next referred to the application for leave to appeal; and to the notice of motion on behalf of the appellant to adduce further evidence a second time, which was refused. He also gave a summary of the judgment of the president of the Land Court. Before proceeding to examine the merits of the claim he dealt with certain preliminary points. He held that the nature of the proceeeding was in effect an action to establish title and that the burden of proof lay on the appellant. He minutely dealt with the question of the proof, admissibility and effect of the docum nts adduced as evidence, such as the official despatches or letters between Chinese departments, petitions of (hines, general and local statutes of the Chinese Empire, regulations of the boards and records of the courts of China. He held that official despatches and p titions were not admissible in evidence, that the general and local statutes were admissible as part of the evidence of the experts who produced them and that where the evidence of the witnesses was
conflicting the Court might examine and con- strue for itself the passages quoted. The regula tions of the boards were held to be admissible as public documents.
As regards the awards and judgments of the courts of China the question arose whether they were judgments in rem or judgments in personam. In quoting Story and Smith's Leading Cases, the Puisne Judge adopted Story's wider language in preference to the narrower language in Smith's Leading Cases, so as not to deprive the plaintiff of what in deciding a nice point of law would have been evidence for him. He adopted the view that most of those judgments were judgments in rem and therefore conclusive against the world.
His Honour also dealt in detail with the admissibility in evidence of the forty odd documents which constituted the exhibit BN1 and having dealt with this point pro- ceeded to examine the terms “ reclaim," re- clamation," "assessed to land tax,'
""entered on the tax register." cancelled" and "exercise the right of ownership," which were translations of the various Chinese terms about which there was a difference of opinion.
The next point dealt with was the procedure on appeals from decisions of the Land Court which was to follow as nearly as might be the procedure in case of appeal against the decision of t'e Puisne Judge. He pointed out that this was an appeal on questions, of fact and questions of law, and that so far as the question of law was concerned no special cas had been stated, as required by
ection 36 of Ordinance 4 of 1873.
Having dealt with these preliminary matters he explained the origin and existence of the four documents of claim relied upon by the appellant and known as AO and AS, and AP and AT. He selected AT as a test document. "The appellant's case rested on this document. It read as follows :—
"Foreshore sealed receipt for landholder.- The Provincial Treasurer of Kwong Tung in the matter of issuing a sealed receipt. I, the Treasurer, have received, in reply to my des patch, a minute from their Excellencies the Viceroy and Governor approving that land holders should voluntarily report their families', fields/banks, make payment, apply for acquisition be granted in the first instance a sealed receipt to hold as proof, be permitted to cultivate as usual/
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[April 8, 1995. use labour to reclaim, and that they should coms again in each separate ones to exchange the sealed receipt for a Treasurer's certificate under which to exercise ownership and pay tax accor ding to class. Now Landholder of District, being of the household
of the
has district,
borough, the tything, member of family ·
.. parish and the applied for the acquisition, in at the place named. of sand water white banks in all four kẹng and has paid in all tion for loss on exchange Taels 6.4, which sums, as the regulation fee Taels 80 and as compensa- having been received and weighed by a deputy of the Branch Office, it is proper, as a árst step, to issue a sealed receipt in respect of the foreshore thus voluntarily reported permitting the applicant to cultivate as usual/use labour to reclaim according to the four boundaries and dimensions, and to wait until an accurate survey has been made, when he should take with him this sealed receipt and exchange it for a Tres- surer's certificate. A necessary sealed receipt. Boundaries as under-East, Sham Shui Po; West, Lai Chi Kok Custom House; South, the res; North, salt fields the taxed pro- perty of the same family, Issued on the 12th day of the 7th moon of the 18th year of Kwong Sui (28th August 1890).”
The Puisne Judge examined this document minutely. Attention was drawn to the phrases in it "in the first instance,"
""come again to exch nge it for a Treasurer's certifiest-,** hold ·
acquisition." The document prima facie did rs proof," permitted " and applied for
not confer ownership. It was clear that the holder of the document was to take active steps to exchange it for a Treasurer's certificate. But before the exchange could take place there was to be an official survey. The appellant argued that as this official survey had not been made he could not carry out bis part by exchanging his sealed receipt for a Treasurer's certificate. To this it was replied that before the survey could be made the appellant's duty was to report that the land was fit to be surveyed. This he had not done and His Honour held that this report by the holder of the doonment was a necessary preliminary to the official survey for the purposes of placing the land on the tax register.
The learned judge then proceeded to enquire whether there was any limit of time within which such report had to be made, and stated that the answer to this question depended on the suswer to another question alimit of time within which the land par
was there
mited to be reclaimed was bound to be re- claimed and entered on the tax register?" After examining the evidence of the skilled witnesses on both sides, the evidence of the appellant in the court below and the law of Chíns bearing on the point, he held it proved that the land covered by the appellant's documents of claim was required by the law of China to be reclaimed or cultivated and entered on the tax register within six years of the date of issue of these documents, namely by the 20th August 1896.
After explaining the Chik Lo tax he went into two arguments advanced by the appel- lant's counsel (1) that unreclaimed land rightly paid taxes at Chik Lo rate and (2) that Treasurer's certificates were legally issued in respect of unreclaimed land. Both these arguments were rejected as unsound. examine the documents of claim, stating that After this digression he turned again to
prima facie they did not confer ownership which acorned only upon the receipt of a tree- surer's certificate accompanied by payment of taxes. He then dealt with the evidence on the question of how ownership was acquired, and after examining the expert evidence, the. appellant's evidence and the law of Chins on the subject came to the conclusion that the holder of sealed receipts such as the appellant's documents of claim in this case did not acquire absolute ownership of the land permitted by such sealed receipt to be reclaimed. After making a few more remarks upon the tenour of those doon. ments he wound up on this point thus
"As I think it would be rash to apply to the document AT any term bearing definite legal meaning in English law, I must express myself in the following periphrasis concerning it. It is a preliminary document permitting reclamation of certain sandbank, and in course
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