April 2, 1905.]
1
of time is to be exchanged for a further and final document called a Treasurer's certificate. After six years from the issue of AT, the sandbank must be reclaimed, entered on the land tax register and pay tax. If the re- clamation is accomplished within the allotted time, the holder of AT must raport that fact, whereupon the officials will have the sand. bank surveyed Ownership is not immediately soquired by the holder of AT, but is conferred when, after reclamation and entry on the tax register, the Treasurer's certificate is obtained in exchange."
Before proceeding to notice in detail other arguments put forward by the appellant the learned judge established the proposition that only reclaimed land could go on to the tax register.
It wan asserted for the appellant that the judgments of a foreign court were the beat proof of the law of that foreign country. By English law, however, foreign law must be proved as a fact by skilled witnesses, so the judgments contained in BNI were not admissible per se, as proof of the law of China. He showed that the Chinese magistrates could not have called sealed receipts, which are the appellant's documents of claim, titledeeds, or Kai as the Chinese character is. He also showed that the word "certificate" as used by magi. strates in respect of the same sealed receipts, was a misnomer and that the Treasury receipts mentioned in Rule 11 of the Sha Tin. Kak Rules, were not the same as sealed receipts or as Treasurer's certificates. He next dealt with the argument that the Chinese magistrates had recognised that the appellant was the owner of the land, which he was permitted under his documents of claim to reclaim. He showed that the the same phrase "exercise the right of ownership' W&S used in respect of Chinese title deeds and breaming licences and sealed receipts, and that the phrase was one of varying import, the exact meaning of which must be arrived at by the examination of the document in which it occurred, or to which it related, so that the phrase "to exercise the right of ownership according to the certificate " did not mean more than to exercise such rights as the certificate or sealed receipt conferred. Another argument of the appellant was that he had, with the sanction of a Chinese magistrate, granted a perpetual lease of the land he now claimed to Chinese company for building purposes, and that the recognition of this lease by a Chinese magistrate proved that he had such an estate in the land which he was permitted to reclaim as to enable him to Carve out of that estate • lease. The Court pointed out that though the magi- strate might have recognised the existence and registration of this lease it did not follow that the appellant had a legal right to make such a lease. The right to make such a lease was never investigated in the Chinese courts and therefore the magistrates were never called upon to decide whether or not the appellant had an estate out of which this lease could be granted. The mere fact of registration proved no more than that the lease was duly registered. It did not prove that the appellant had any right as against the Chinese Government to make such a lease. It was also pointed out that the Chinese word for lease was used to describe such various documents as "breaming licences," "sealed receipts" and "lease" proper. The term therefore seemed to be one of varying import depending upon the document to which it was applied. Because it was applied to the appellant's documents of claim it could not be said that these documents of claim were leases, and that therefore the apellant as Crown lessor had power to sublet. The three main argu- ments of the appellant hitherto noticed were: — (1) That his documents of sisim conferred sbsolute ownership (2) that they conferred an estate out of which a perpetual lease could be given (3) that a Tresaurer's certificate was issued and taxes at Chik Le rates were paid, in
respect of unreclaimed land.
CHINA OVERLAND TRADE REPORT.
fixed by rule No. 9 of the Sha Tin Kuk rules: and that the six years' limit pre- | scribed for the reclamation of sand banks was not abolished with regard to the Ban On Distriot.
iron top of the store, crockery and other The plaintiff claimed for store and $28.50; for shelves $7; for crockery and for meals outside $10; also posts of
action.
The defendant contended that he had put the stove out carefully, and had not broken It. He admitted he was in the wrong.
His Honour-It is quite evident you were in- the wrong, for you should never have taken out the stove whether you were labouring under an error as to your rights or not. The meals out- side I consider unnecessary and a luxury, so-I give judgment for $39.85 only and costs. I am sorry that it is not a good deal more.
POLICE COURT.
Monday, 27th March.
BEFORE MR. F. Á. HAZELAND (FIRST POLICE MAGISTRATE.)
REX V. PUNCHARD, LOWTHEB AND COMPANT. His Worship delivered judgment in this case as follows:-
The defendante, Mesars. Parichard, Ļowther and Company, were summoned before me for unlawfully using cargo bosts in the waters of the Colony without a licence contrary to Ordinance 10 of 1899, and the regulations made under the authority of the saíd Ordinance.
It was contended by the defendants that the cargo boats, the subject matter of the charge, were the property of the Lords Commissioners of the Admiralty, and not the property of the defendants.
Having dealt with these subsidiary arguments the court proceeded to enquire what was the result of the appellant not having fulfilled the conditions under which he was permitted to reclaim. The appellant's argument on this point was that the Chinese government had no right to re-enter on the lands comprised in his documents of claim, that such a right of re-entry was not expressed on the face of these documents, and was too severe a messure to be implied in law, for the law leaned against forfeiture. On the other hand the respondent argued that the appellant's documents of elsim were on the face of them mere permits, that they were issued upon conditions which attached to them by the law of China that, such conditions not having been fulfilled the rights conferred by the permits had lapsed. The oral, affidavit and statutory evidence on this point having been examined indetail by the learned judge, he came to the conclusion that the law of China as propounded by the Crown's skilled witnesses was more consistent with both the conditions annexed by that law to, and the general tenour of, the appellant's documents of claim, than was the law of China as propounded by the appellant's skilled witnesses. The judgment ended as follows:-On the evidence I hold that AS and AT were voidable by the Chinese Government on the 20th August 1896. But though that Government did not exercise its power of svoidance the right to avoid passed to the British Government and can be exercised at any moment. In my opinion that right of avoidance has not yet been exercised. The reason for this is that until it had been held that such a right of avoidance existed, the Crown was not in a position to exercise Its right It may now rescind AS and AT, the right to rescind not
"Until the completion of the works to be having been abandoned by the Chinese Govern- carried out under this contract, all temporary ment. One of the skilled witnesses for the re-buildings, appliances, plant, and machinery of spondent declares that under the circumstances all description provided by the contractor for existing in this case the land reverts to use on the works shail, from the time they are Government. The Chinese Government it is placed on any part of the site set apart by the clear was never divested of its ownership of theivil Engineer-in-Chief for the works at Hong- soil. It permitted the appellant to enter on kong, become the absolute property of the Lords the soil for the purpose of reclaiming it within Commissioners of the Admiralty (but subject a prescribed time. That time expired and the to the use thereof by the contractor or any conditions of occupation remained unfulfilled. other person or persons-employed on his behalf) The permission to occupy came to an end and shall not be removed from any of the sites therefore when the allotted term had passed and without the previous consent in writing of the conditions imposed by the permission were
the Civil Engineer-in-Chief. On the fiual unperformed. In such a case I can not see that completion of the works the whole of the tem- there was any necessity for any active steps on porary buildings, appliances, &c., &o., referred the part of the Chinese government to cancel to in this clause shall be removed by and at the or avoid the documents of permission. It seems
cost of the Contractor, and upon such removal to me that the rights conferred by these doon. shall revest in and become the property of the ments having elapsed by effluxion of time, the documents themselves became more waste paper
It will be observed from the above section of having no value. If the documents of claim
this agreement that before any property vests AS and AT are only voidable, I am of opinion in the Lords Commissioners of the Admiralty that the judgment appealed from must be up-
it is a condition precedent that it should only held. If they are of no more effect than expired vest "from the time they are placed on any permits, the appellant equally fails, for his part of the site." By no stretch of language documents esased on the 20th August 1896 to or juggling with words can a cargo boat used confer on him any right even of entry and con- for conveying materials to these works be ditional occupation. The appeal should be disregarded as having been “placed on any part missed with costs.
Saturday, 1st April.
IN SUMMARY JURISDICTION.
BEFORE MER. T. SERCOMBE SMITH
(PUISNE JUDGE).
J. ALLEN V. F. LOOK.
Mr. G. K. Hall Brutton appeared for the plaintiff, who lives in a fiat in Wild Dell, Wanchai Road. The defendant formerly renteď another fist adjoining the one occupied by the plaintiff. Both plaintiff and defendant are em- ployees at the Naval yard. The two had a dispute shout who, had the right, to occupy a kitchen. As regards the subsidiary arguments of the The plaintiff, who had possession, refused to plaintiff, the court hold it was not proved vacate the room, and the defendant, assisted that the Chinese land register conferred title: by his boy, thereupon remored all the that the Crown was not now estopped by reason | plaintiff's things out of it. The stove at that of its argument in the court below from argn- time was still hot, the plaintiff's dinner haring ing that the appellant was not owner of the been cooked on it. It was shifted on to the land: that the time limit of thirty years from landing, and the defendant pulled down the the date of application to reclaim was not piping, some shelves, etc. He broke the cast
|
La support of this contention the solicitor for the defendants put in a copy of a section of the contract made between the Lords Commissioners of the Admiralty and the defendants. Messrs. Punchard, Lowther and Company The section is as follows:--
Contractor."
of the site."
I am moreover of opinion that it was not in the contemplation of the parties at the time of making this agreement that vessels used in conveying materials should be included in the
said section.
Assuming for the purposes of argumant that there is an ambiguity as to the meaning of the words "placed on any part of the site" is in a rule of construction that an ambiguity is to be construed most strictly against the promisse and in favour of the liberty of the promiser.
I am therefore of opinion that the cargo bosts, the subject matter of this charge, are the property of the defendants and not the property of the Lords Commissioners of the Admiralty.
By the regulations made under the Ordinaãçe it is deduced that all cargo bosts must be duly licensed.
I therefore convict the defendants. As the present proceedings are, in the nature of a test case, I propose inflicting a nominal penalty of $5.
Mr. Wilkinson, solicitor for the defendants -I beg to make an application, under Section
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