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Sir Henry Berkeley-By sushority' of the magistrate.
The Chief Justice-There are some cases in which a magistrate sots ministerially.
Mr. Blade-The sot of a magistrate would be judicial in such case, so I think I am wrong. A good instance of the kind is this: A man has a right, on fulfilling certain conditions, to imus. a warrant of arrest or for the arrest of property under a mean process of this Court, and an irregular process is issued, a process which is irregular can be set aside for irregu- larity under the rules. Then the applicant is liable.
Sir Henry Berkeley-Only after it is set
aside.
Mr. Blade-After it is set aside, when it is set aside, and if it is void of an issue.
Bir Henry Berkeley contended that on consideration of paragraph 7 of the statement of claim the warrant would be found to be a good warrant; it had not been impesobed. There was no evidence whatever to show that there had been personal interference by Reuter, Brockelmann and Company with the Pan Ya magistrate or the person who issued the warrant. All that plaintiffs could prove was that the Pun Ya magistrate, having placed what might be called bailiffs in possession of the shop and goods, Reuter, Brookelmann's agents in Canton, finding that they were to be at once subjected to's boycott, withdrew execution from the shop. Finally, Conasel said he would submit with some insistence that this case should not have gone as far as to make it necessary for him to take the necessary points with regard to libel and the other points he took, because when the case concluded he moved for a n nsuit, inasmuch as plaintiffs had not established that the wrongs complained of were sotionable by law in the place where they were committed, or in Hongkong.
The Chief Justice-Our decision will be reserved until after the long vacation, but now that this case is over I have one word to say. There are certain paragraphs in the shorthand writer's notes the summing up, on psg 11 and 12, which I don't think ought to remain there. I therefore order that they be struck out as being irrelevant to the issue, and containing an unwarrantable imputation on the Court.
[This refers to a discussion which took place in Court nearly two months ag between the Hon. Mr. Pollock, K.C., and His Honour the Chief Justice.]
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Wednesday, September 9th.
IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
THI HONGKONG AND SHANGHAI BANK SUED,
Action was brought by Lan Man Cho, otherwise Lau Hok Shun, to recover from the Hongkong and Shanghai Banking Corporation 34 title deeds which, plaintiff alleges, are his property, and are wrongfully detained by the defendant.
Mr. M. W. Slade, instructed by Mr. J. Sooft Harston (of Messrs. Ewens and Harston) appeared for the plaintiff, while the Hon. Mr. H.E. Pollock, K.C., instructed by Mr. H. J. Gedge (of Messrs. Johnson, Stokes and Master) represented the defendants.
The statement of claim set forth that the plaintiff was a gentleman residing at Shanghai, The defendants were wrongfully in possession of documents, the property of the plaintiff, and, although plaintiff had demanded them, the defendants had refused to give them up. The claim was for the delivery of the said documents or $600,000 damages.
The statement of defence said that defendants' position was lawful. The documents were handed to the defendants by the Wang Fang firm, in which firm plaintiff was a partner, for he purpose of securing the re-payment to the defendants of certain bills of exchange with interest. The said bills were drawn in the usual way of business of the aid firm, for the purpose of obtaining money from the defendants for the use of the said Arm, the proceeds received from the defendants on the sale of the said bills being paid by the drawers (who acted as agents for the Wang Fang firm in the negotiations, to the mid firm. If (which the defendants did
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THE HONGKONG WEEKLY PRESS AND
not admit) the documents were the property of the plaintiff, and were not the property of the Wang Fung irm, the plaintiff authorised the firm, or in the alternative negligently put it in the power of the firm by with the possession of entrusting them the documents, to charge the documents as security in the manner, aforesaid. Some of the bills were still unpaid, and there was owing to the defendants in respect of such unpaid bills for principal alone the sum of $1,340,450.83. In the alternative, the defendant raid that the proceeds of such unpaid bills has been applied for the use or benefit of the Wang Fang firm. The defendants were in the circumstances entitled to a charge, or in the alternative to a lien as bankers, or in the alternative to retain such documents for the purpose of securing repayment to them of the ssid principal and all interest dus thereon, which principal and interest was due and owing to them by the said firm, and by the plaintiff as a partner therein. The
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defendants did not admit that the documents or any of them were the property of the plaintiff, and denied his right to recover them. Further, they said the Court had no jurisdiction to determine the title to land or to a charge or lien on land which was situate in a foreign country, namely at Canton in the Empira of China. Proceedings were now, sad were at the
time of the comméncement of this action, pending between the parties to this action in China, before the Namhoi Magistra's at Canton, in connection with the right of the defendants to retain possession of the title deeds, Ja the said proceedings before the Namhoi magistats, wherein the defendants in this sotion were plaintiff and the plaintiff was defendant, the plaintiff in this action had put in certain pleas by petition, thereby submitting to the jurisdiction of the said magis. trate in connection with the title deeds of the said land. Under these circumstances the institution and continuance by the plaintiff of this action was verations and embarrassing to the defendants and was an abuse of the process of the Court. The defendants farther made a counter claim for the payment by the plaintiff to the defendants of $1,840,450.83, together with interest thereon at the rate of eight per cent. per sunum,
Mr. Slade said he ought to have mentioned that an appearance was entered by the d-fen- dants is this action conditionally, but without their having obtained leave to file a conditional appearance, and without their taking any steps apon that conditional appearance to set aside the writ or anything done thereunder.
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[September 14, 1908.
of mortgage was drawn up conveying. property?
the
His Lordship Where was the deposit inã¿ Mr. Pollock The deeds were brought to defendant bank here. Obviously the effect of the charge would bave to be determined acöörd- ing to the law of Chink because the title to the land would be registerable in China. To put it shortly, the land register of this property was not within the Jurisdiction. The fand itself was without the Jurisdiction, and Counsel submitted that the only authorities which possessed jurisdiction to deal with the_title to the land were authbrities outside the Court
the Chinese authorities.
His Lordship-It seems there in a registration law.
new
Mr. Pollock-I think your Lordship knows there is a certain register kept in China ?
Mr. Slade-I don't think the Court onu take judicial knowledge of the law in China.
His Lordship-If your proposition is good it stands quite irrespective of registration.
Mr. Pollook-Whether this Court could, ná` it were, issue a mandate to the Chinese authori- ties to direct them in this matter-to direot them adopting the plaintiff's point of view, that the plaintiff is entitled to this property free from any charge of the Hongkong Bauk or not. His Lordship-Surely the only question is whether a charge exists or not.
Mr. Pollook-This would be obviously question affecting the title of property in China; that is to say, your Lordship's decree, whatever it may be-whether in favour of the plaintiff or the defendant-will affect the right of property outside the jurisdiction.
His Lordship-Assuming there is a regis- tration law in China, the question of title can only be influenced by the man in possession of the title deeds.
Mr. Pollook-The title deeds are merely the symbols of property. If they were not recognised as symbols, the Bank would say they
were mere pipers.
His Lordship-There are a number of caseN in which the Courts, have dealt with mortgages relating to foreign lands.
Mr. Pollock-I don't think there is any dass which would go to the extent of giving the Court jurisdiction. We sab sit your Lordship must take cognisance of the fact that there are some authorities in China whose business would be to determine on application whether a charge would be registered or not.
His Lordship-That does not advance your proposition in the least. "Supposing there were none, you must treat the question precisely as you would supposing this was a charge on land in England.
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Mr. Pollock-I submit not. It seems to us that the question is whether this Court can assume jurisdiation. If the Bank cannot prove they took those deeds and took them with all the necessary authorities, then, of course, the Bank's claim cannot be maintained. The Bank's. position all through is, as it were, an inroad on the title of the plaintiff.
His Lordship-I think the matter falls with- in the jurisdiction
Mr. Pollook thought, seeing the pleadings had been read, that he should take the point of jurisdiction. The first point of jurisdiction was a question which did not seem to require any evidence to support it. His Lordship would see in the statement of defence that this honourable Court had no jurisdiction to determine the title to land, or to charge or lien on land situate in a foreign country. Although it was a fact that this claim of the plaintiff was for the return of certain deeds handed to the defendants, his Lordship
Mr. Slade then opened the plaintiff's case. would appreciate that the question of the title to the land was involved, that was to say, to the He said the plaintiff was a Chinese gentleman, a scholar of very high attainments and a very extent of whether or not the defendan's had
successful business man. For some five years, any charge, or lien or security upon the land which was represented by these deeds. By from about 1890 to 1895, he was the farmer of Counsel the Waising lottery in the Province of Kwang, of emphasising that point, Way referred to the prayer of plaintiff in the tang under concession from the Viceroy of the statement of olaim. Plaintiff claimed the Two Kwang provinces. Toward the end of that delivery of the said documents to him, or concession, which was for five years, plaintiff was desirous of going north on business, $600,000 damages. It was obvious that these deeds-pieces of paperas apart from the and he entered into an arrangement with seven property which they stood for and represented, men- all of whom were men of position and all were of very little value; but, obviously, the of whom were reputed to be wealthy men- that reason why the alternative olsim was made for they would act as his agents on certain terms $600,000 was because that would be the value for the completion of the then existing lottery. the plaintiff would put upon the property concession, and, further, they were to apply represented by the deeds. The defendants said for, and work in conjunction with himself, « concession which they hoped to obtain for the these deeds were deposited with them
On the expiry security, and that the deeds were deposited by next period of six years, people who were authorised by plaintiff. The in the end of 1895 of his term, his agents, the point really raised was what was ordinarily Wang Fung Co., applied for the new concession, called an equitable deposit of deeds as represent but without success. It was granted to two As his merchants who, after working it for about, a ing the property included in the deeds. Lordship was aware, such things were constanti, year. failed, and in 1836 the Wang Fang Co, done; deeds were deposited as secárity, and that obtained the concession of these lotteries for formed what was known as an equitable charge period of seven years, which expired in Jandy on the land represented by those deeds. It was 1904. In the concession in which he was farmer, not in every case that a formal document plaintiff owned the whole of the property and
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