428
VICEROY CHANG OPPOSES THE OPENING OF WAICHOW.
Sometime ago the Grand Council at Peking considered the opening of Waichow in the Kwangtung Province as a Treaty Port and in consequence instructions were sent to Viceroy Chang to make the necessary investigations regarding the suitability of the place as a Treaty Port and to furnish a report on the matter. His Excellency has recently forwarded his report to Peking. In it the Viceroy states that Waichow is a place in close proximity to Hongkong and could be turned into an important commercial place, but unfortunately there is very little produce in the district and the people are poor. The rivers are not at present navigable and .accessible to vessels; they require to be dredged. Moreover the district is full of bandits, brigandage is rife and there would be great difficulty in capturing the outlaws if anything should happen. Besides, extra-territorial rights have not yet been given back to China and the power and privilege of deciding all international are entirely in the hands of the foreign Consuls In all the Treaty Ports. The more treaty Ports are open, the more restraint will be placed on China, through international questions which may arise. It would be better
matters
not
in His Excellency's opinion to open any more Treaty Ports; but if the present case cannot be avoided then extraordin- ary care should be taken in considering the matter. The Viceroy repeats in conclusion his view that the opening of further Treaty Ports
should not be considered.
EMIGRATION
то MEXICO PROHIBITED.
The Wai-wa-pu has sent telegraphic instruc- tions to Viceroy Chang to notify all the officials in the Kwangtung Province to prohibit labourers from proceeding to Mexico.
The cablegram further states that they have received information that certain foreigners have without authority gone into the interior of China and are inviting labourers to proceed to Mexico.
The Wai-wa-pu has cabled to Minister Wu Ting Fang to communicate with the Mexican Government and ascertain whether the recruiting has been sanctioned by the Government. The Chinese Minister has returned a negative reply. The Viceroy has in consequence issued notifica- tions to all the officials to stop the recruiting.
SWATOW-CHAOCHOUFU RAILWAY.
The Board of Posts and Communications has been again pressing the Swatow-Chaochoufa Railway Company to replace its numerous Japanese staff by Chinese. As matters are at present writes the Swatow correspondent of the N.-C. Daily News, this is impossible. The concern is practically mortgaged to the Japanese by reason of the amount of its indebtedness to them on account of construction and stock; and the employment of Japanese may be regarded as part payment of interest. The reply of the Company to the Board is that the line is still on its trial, and needs further dovelopment and
extension, and that for these reasons it is impossible to dispense with an expert staff at present. This contention is quite legitimate. The impression abroad is that the line is not paying in its passenger receipts alone, and that a large development of its goods business, not only with Chaochoufu and the intermediate stations., but also with places up river, is necessary in order to make the line a success. The Company has in prospect the establishing of a service of light-draught steam-launches up river to Kayingchou. This can be only s temporary measure, for the natural line of development is over-land to the same place, and beyond that into the coal bearing districts! towards Tingchoufu.
The latest official return of Chinese in the Transvaal shows that at the end of August 151,762 coloured persons were employed and 17,270 Chinese; according to the Transvaal Chamber of Mines, the number of Chinese employed at the end of September was 14,655. The death rates per thousand for the quarter ended June 30 were 32-035 for natives and 16.002 for Chinese,
✪
سم
THE HONGKONG WEEKLY PRESS AND
SUPREME COURT. Wednesday, 9th December.
IN SUMMARY JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR F. PIGGOTT).
A COMPRADORE'S LIABILITY.
S. J. David and Compary, merchants, brought action against Chan Ut Chai, a compradore formerly in their employ, for the recovery of $648,816 the amount of damages due under agreement. Defendant counterclaimed for the return of his security $55,000 alleging that he had fulfilled the terms of his contract.
Hon. Mr. Pollock, K.C.. instructed by Mr. Jackson, of Messrs. Johnson, Stokes and Master, appeared for the plaintiffs, while defendant was represented by Sir Henry Berkeley, K.C., instructed by Mr. J. Scott Harston.
Plaintiffs claimed that part of the considera- tion of their employing defendant as compradore was that defendant agreed to make good any deficiency in the price of goods, sold or agreed to be sold by them to Chinese while he was compradore, irrespective of whether the sale was with or without defendant's consent. The plain- tiff had incurred losses in relation to or arising out of contracts entered into with Chinese and the defendant's liabilities as compradore amounted to $648,816.67. which was admitted by the defend- ant in a declaration made in support of a petition in bankruptcy.
that
In the statement of defence defendant denied that he ever agreed to pay to the plaintiff any deficiency in the price of goods, loss, profit, commission or any losses sustained by the plaintiffs as alleged in the claim. Defendant said he was not liable to pay the claim or any part thereof and denied that the plaintiffs losses amounted to 8648,816.67 or to any sum nearly as large, and declared that he, as compradore was not liable to pay it.
or any part of it and lost all plaintiffs had
their rights against the defendant by entering into agree. ments in the early part of August 1906 and the early part of September 1906 to give time to the Chinese concerned for taking
of delivery the goods the plaintiffs had contracted to sell. He was liable to pay no more than the difference between the price at which the said goods were contracted to be sold and the market price, and the market price at the dates on which delivery of the said goods should have been taken, and was not liable to pay anything in the case of goods which the plaintiffs had not in hand at the due date for the delivery thereof. Goods imported by the plaintiffs to meet their contracts were destroyed or damaged by the typhoon of 18th Sept. 1906 and in other storms, and the plaintiffs had re- ceived monies in respect of such destroyed or fendant nor had they brought into account in damaged goods, and not credited same to de-
their claim against the defendant certain monies received by them under agreements of com. promise with purchasers.
The counter claim stated that defendant
repeated the allegations contained in the state- ment of defence under and in pursuance of the agreement. The defendant deposited with the
plaintiff 855.000 as security for the due per- formance by the defendant of his obligations under the agreement, and he said that those obligations had been performed.
stated that defendant's agreements, as comprat The reply to the defence and counter claim
dore with the plaintiffis, and his obligations were 1902 and a further agreement on April 27, 1905, defined in two agreements, one dated January 30, and that the defendant was liable to pay the plaintiff's claim in that action. Plaintiffs further contended that the losses amounted to 8648.816.67. Referring to the counterclaim, plaintiffs stated that $55.000 was deposited by defendant with the plaintiffs where the money remains, as security for the due performance of his obligations, which defendant had not fulfilled.
Mr. Pollock made a preliminary submission that defendant was bound to begin, and read the paragraphs on which he founded this submission Defendant confessed he had admitted that he owed such and such a sum to plaintiffs. It was immaterial to them whether it was in a document or verbally, Defendant having admitted that
he owed this money.
[December 12, 1908
Sir Henry Berkeley-He did so mistakenly. It is not an admission.
Mr. Pollock-It is an admission and he has to show why he should be relieved from it. Where you have it that he has admitted liability to us in aunt certain amoand goes on to say that he did so mistakenly the burden lies upon him to show he was mistaken.
His Lordship-No. His evidence would be to show that he mistakenly believed he was liable.
* You would not get any further.
Sir Henry Berkeley-My friend is not quite ingenuous. He has not read the particulars of that admission.
His Lordship-You are not suing on that admission. It is only incidental evidence.
Mr. Pollock-It is, at all events, a matter of record.
Sir Henry Berkeley-There is no admission on the pleadings.
His Lordship-The Court cannot sanction a matter of bad pleadings.
Mr. Pollock-You can say~---
His Lordship-If you sued him on the admission I agree with you, but your cause of action is the compradore's agreement, and to strengthen your claim you put in evidence that he admitted it. It is part of your chain of
evidence.
Mr. Pollock-If a man admits a thing and says I have made a mistake, surely the burden is on him of showing he was mistaken.
His Lordship-It is a piece of evidence which you hope to make the best of.
Mr. Pollock-Surely you can plead as a matter of fact that the man has made an admission.
Sir Henry Berkeley-But he qualifies it. His Lordship-The pleadings are badly drawn.
Mr. Pollock-That he admits it is on record. His Lordship-Nothing could be on record. Mr. Pollock-Supposing a man admits a debt, can't you plead he has admitted it? That is the point. It is for him to show why he should be relieved from it.
action
His Lordship.-That makes your depend upon it.
A
Mr. Pollock.-No, not entirely. We say we are entitled to judgment unless he can show why he should be relieved from it. The only way he can be relieved is that there was mistake which ought to entitle him to relief. We are entitled to go for him on the double ground, firstly on the admission! and secondly on the general principles.
His Lordship-Supposing he goes into the box and says I drew this up in a hurry. That is an end of it.
Sir Henry Berkeley They have the parti- culars of the admission.
His Lordship-You have not advanced your
case.
Mr. Pollock-It is for him to get out of it. His Lordship-Supposing we see the admis- sion first. It may be it has been made an
issue.
Mr. Pollock-That is what I submit. Sir Henry Berkeley-No, it hasn't. Mr. Pollocks reads.
Mr. Pollock-If he says I was induced by Mr. David to make an admission, surely the burden is on him-
His Lordship-Only the burden of showing he was mistaken
that.
can
Mr. Pollock-Surely it goes further than
how His Lordship--I don't see
you shift the whole case on his shoulders by that. I don't see what is to be gained by it. If you like to rest your case on that admission, it is different.
Mr. Pollock-I would put it not merely as incidental but as a double ground.
His Lordship-I don't see how it would benefit you. The onus of the whole case would still be on you.
Mr. Pollock quoted authorities in support of his point.
His Lordship however decided that it was only evidence and that it was not sufficient to shift the onus of proof on defendant.
J
Mr. Pollock, in opening, explained the method of business as to contracts, etc., and pointed out that when the defendant found he could not carry on he filed his petition in bankruptcy, but as there was only one creditor an order in bankruptcy could not be made.
The hearing was adjourned.
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