February 1, 1908.]
vanish in the distribution in bankruptcy, as the result of my decision is that they are not secured creditors; but the estopper is required for quite another parpes. It is not a simple case of estopper at all, but an exceedingly complicated one. It is to cure a defeat in the claimant's title, to make a lender the possessor of a document which may be treated as a security, and this is to be tested by just the sime methods as if it were a document of title proving him to be the actual purchaser of the goods. Ibis defect is the absence of ascertain ment; the absence of severance of the bags of flour on which the advance was made from the balk of flour in the godowns. In this respect I must put the new claimants as on a level with the old ones; that is to say, that they were shown the bulk, and that they also, seeing a great quantity of flour, were satisfied that there was enough to cover their intended advance. It is here that so much play was made with Woodley v. Coventry, because the estopper in that case had actually to do with the fact that the goods were not ascertained by Coventry, and it is bere that the argument became, as appears from what I have already said, so insidious. The simple facts are these. Kwong Yik Wo, in intending to borrow from several | claimants on a certain specified number of bags of flour, takes them or sends them to his Hop Yik godowns, where all the flour is stacked, and either he or Ho Lam, acting on his behalf as his agent, points out to them a quantity of flour saying there is enough flour to cover your advance." The olaimauts take no further steps as the law requires es to ascertaining, but are satisfied that there is enough and more flour, aud lend their money. As one witness said in bis evidence, "Elo Lam pointed out to me more than enough; I did not separate any for myself.
Ther + 0зa be no estopper bere. They have simply been themselves negligent, and the law makes them pay the penalty. It seems indeed expressly designed to prevent such frauds as were committed in this case. I am therefore of opinion that the Official Receiver was right in rejecting the proof of these claim ants, and the appeal must therefore be dismiss.d with costs.
IN ORIGINAL JURISDICTION,
THE LIABILITY OF COMPRADORES.
An interesting argumont, arising out of the action, Chan Kee r. David Sassoon & Co. Ld., was heard before his Lordship. The argument was adjourned from Chambers to the Court. Mr. M. W. Slade, instructed by Mr. C. D Wilkinson (of Messrs. Wilkinson and Grist) appeared for the plaintiff, and Hon. Mr. H. E. Pollook, K.C., intruoted by Mr. H. W. Locker (of Messrs. Demoop, Looker and Deacon represented the defendants.
Mr. Slade said this was an adjourned matter from Chambers in which the question to be decided was one of the utmost importance to all compradores and merchants whose liabilities were regulated by documen's in a similar form to the oue in question, and there were not a few in the Colony.
His Lordship-Is that so? I should rather like to get that point clear.
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CHINA OVERLAND TRADE REPORT.
107
special jury in this Colony would be with said he had no doubt what the verdict of any
of Chinese customers of the firm. The con- tention, as I understand it, of his en ployers, is that he is the insurer of all their trans-regard to the case. actions with Chines.
His Lordship-That was rather the inter pretation which I thought was possible.
Mr. Slade H insures the firin against loss of any kind in any transictions with Chinese. Cunsel then read material parts of the prov.so as follows:-" The compradore shall, on demand, pay to the mortgagees (bis employers) any deficiency in the price of goods which will be sold, or agreed to be sold to Chinese customers of the mortgagees.
and also all losses, costs, charges or expenses which shall be incurred or sustained by the mortgagess in connection with any transsotion or business which shall be entered into or effected by the mor gages with say Chinese.
whether such losses, costs, charges and expenses chall be incurred or sustained by reason of breach of contract or otherwis howsoever.' Counsel Fubmit'el that reading the 1st clause by itself, without any regard to the relation of compradore and merchant 84 it was known in this Colony, that the words of that clause mads the compradore the insurer against every 1st, however arising, which fell upon the merchant in his transactions with Chinese customers; whether tha loss arose from the default of the Chin-se customer, or from the default of the merchant, or the unbusinesslike method of the merchant carry. ing on his business, or the ill-luck of the merchant in a market going against him. On the words of that clans the compradors was the absolute insurar against any loss of any kind or description which the merchant could suffer in a ooutract with Chiasse. Counsel took a concrete example: Supposing," he said, "a merobaut imported goods into this Colony, not under contract, at say, a price of $200 a bale, and in consequence of the market falling be was unable to sell them at a higher price than $100, and be sold them to the Chinese at that price." By the words of this clause there was no doubt that he could recover from the compradore the loss of $100 per bale which he had suffered by means of the falling market.
Mr. Pollock-That loss would not come out of the compradora's pocket.
Mr. Pullock submitted that the words "with- out the consent or knowledge" were immaterial. The firm had full power under the terms of the agreement to enter into contracts with Chinese although the compradore had no knowledge of such contracts. It followed as a necessary inference that the firm were entitled to be allowed a free hand as regards their dealings with the Chinese, and were entitled to exercise reasonable forbearance towards customers,
His Lordship-Supposing they entered into contracts unknown to the compridore, how would he collect his commission P
Mr. Pollock-He would know when the goods were delivered, and would get it from the customers.
His Lordship-But if the contract breaks down befo e delivery ?
caro.
Mr. Pollock-I quite see that is a possible agreement, the compradore must be bound by Whatever the effect of the clauses of the
them.
His Lordship reserved his decision on the point.
THE SITUATION IN MANCHURIA.
C
(FROM OUR CORRESPONDENT.)
Mukden, January 25th Yes, but is Manchuria a Chinese province.P" replies a French investor to his solicitous agent in's southern Chinese city. Emphatically yes in theory, and if good faith shall prevail among the nations. But in fact the query of the cautious Parisian banker stirs many au echo elsewhere, aud list those echoes, as they may, should baget a wild surmise", it is well that the t.uth should be told. Magna est varitma, et prevalatis," and that it should prevail in the earnest hope of those who live in the Eastern Provinces and who know that what Manchuria needs just now is a general understanding of her affairs, and, on the part of the diverse interests meeting there, patience, mutuality, consideration and frankoess: -difficult traits these to find, or expect to find associated in Mr. Blade-Undoubtedly it would. Proceed-diplomatic dealings. Nevertheless all will be ing, Mr. Slade put the supposition before the well with Manoharis, granted thorough know. Court of a merchant entering into an agreement | ledge and fair play. to import goods for Chinese, the price being taken in dollars while the cost to the merchant for importing from abroad was sterling. Hy sold at a price which would cover him on the rate of exchange of the day. But if the merobant desired to gamble and did not fix his exchange at the time he made his contract, and exchange went against him so that the contract dollar price which he received eventually from bis cus. tomer did not cover mentioned be coull recover the amount be bim. by the clause had lost from his compradore. Such instances might be multiplied indefnitely. the olauss mentioned was a clausa insuring the merchant against all logs in transactions with Chinese howsoever such loss arose. Counsel submitted that those were the plain words of the clause,
Chang. His territory is more heterogeneous No easy task is that of H. E. Hau Shih.
than any other viceroyalty in Chins, and what- ever course of action ue pursues is sure to meet with censure, either openly expressed, or brought by more indirect channels to bear. His rea-nt trip concluded this month through the northern provinces, Heilangkinug and Kirio, brings the situation freshly and tho
retrospect, indicates the present status quo as roughly to mind as a whole, and followed in
well as those questions remaining yet unsettled in Manchuria.
During the 42 days of his absence from Mukden, H. E. Han was busily engaged in reorganizing sad instructing the central goverameats at Tsibaibar and Kirin, studying and unles、 Messrs. Sassoons Counsel made | local conditions and collecting materials such admissions as wold clear this matter for his recent memorial to the Throne. Mr. Slade—I happen personally to know of up it would be again submitted to the Court in In both provinous be found finances one other, and all compradores' agreements an action they wou'd bring for rectifiostion of comparatively low, prepared by Messrs. Deacon. Looker and D-a- or Deacon and Hastings, or whatever office it was at the time, would be substantially in the same form.
Ono,
His Lordship-That is not an exceptional form in the Colony?
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Mr. lade-No. Bat a great many have adopted old Mr. Deacon's form.
His Lordship-In this peculiar language Mr. Blade-Yes.
Mr. Pollock-It is a form which has been gradually evolved.
His Lordship-I quite see the process of evolution, and the extreme importance of the question caused me to adjuru the matter to
Court,
Mr. Slade -It is a matter of the utmost im- portance, and the clause in which the coutro- versy turns is the first proviso for redemption | in the mortgage. Oar contention—that is, the contention of the compradore-is that he is only liable for the cons-quence of defaultsof some sort—using defaults in its widest saILI
| the agreement. The meaning of the words wAR certainly never explained to the compradore. All be intended to agree to was to be responsible for defaults on the part of Chia-se customers of the firm, and no more. There W 48 no evidence before his Lordship at the moment, but that was the position of every compradore in the Colony. In clause 2 of the agreement the customary position of the compradore was recognised: The remuneratiou to be | ceived by
re the compradore shall conviat of the customary commission or percentage which the company agree to permit him to demand and coll et from Chinese purchasers of the firm and Chines- s-llers to the Company." His Lordship - Wouldn't a reasonable inter- pretation be this: that the liability which is sp oified to make good in the mortgage arises in tuose cases ia which the compradore is entitled to commission or pro-stag»?
Mr. Slade Yus. That is exactly what the contention of the other side is, that this is an insurance contract, Proceeding, Mr. Siada
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attributable
state of affairs the chiefly to poor harvests of last autumn, although other influences also contribute. Daring his ten days sojourn at Tsibsihar and Kirin respectively, he distributed the offices of government in three departments, the Finance, Hom», and Foreign Baresas, this organisation being similar to that already in force under Governor Tang Shao-yi in Fongties. Additional materials were also gathered in Kirin province regarding the Chientao boundary question, and these have been compiled with the complete materials of the Chinese onse which is now on file in Poking awaiting the presentation of the Japanese papers.
The Viceroy speaks with distinct apprecia- tion of the courteous treatment and attention everywhere accorded him by the Bamian civil and military authorities in facilitating his long reilway journey, as well as in extending to him many civilities at their ragious stations, particularly in the city of Harbin, where II. H. pent a day ea route from Tulhalhar to Kuangekangisu,
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