May 15, 1909.]
several years-that it begun in May 1899, ten years after the passing of the preliminary or. dinance of 1889. Mr. Pollock then proceeded to to deal with the agreements, and explained in answer to his Lordship that the second agreement was made because it was advisable to ensure that no rights had been waived by the Government.
At the close of Mr. Pollock's speech his Lordship indicated to Mr. Slade that he did not see any difficulty about retaining the name of the present plaintiff.
Mr. Slade said he could make it quite clear he thought.
His Lordship thought the action must be brought by Sir Frederick Lugard. The agree- ment recognises the existence of this body called the government of Hongkong as it promises to indemnify the Government in the event of certain contingencies. He would however give a more formal decision later.
Mr. Slade contended that the only right of a governor for the time being to stand in the shoes of a predecessor arose from statute. The ordin- ance was strictly limited, and he went on to argue that the schedule was not incorporated in the ordinance. It was perfectly clear that the agreement entered into between the Governor in his capacity as governor was an agreement binding upon the person represented. He con- cluded by saying that the only right of action would be by petition to the King.
His Lordship thought that the other way was the practice here-petition to the Colonial Government.
Mr Slade-Apart from local legislative en- actment it must be by petition to the King.
His Lordship-The Governor exercises all the powers of the King in the colony.
Mr. Slade-I submit it is not so. That would be a contradiction to the Sloman v. Government of New Zealand case where it was decided yon could not sue the government.
His Lordship In that name. That is a highly technical position.
Mr. Slade proceeding said that wherever a minister of the crown madea contract by virtue of his office for and on behalf on the crown he could not be sued upon that contract. It must be by petition of right. Similarly he could not sue upon that contract in his own name unless he was a corporation sole. The only person who could sue upon that contract, when the plaintiff was no longer available, was the person on whose behalf it was made -that was the King.
CHINA OVERLAND TRADE REPORT.
Mr. Fletcher, Clerk of Councils, was called as a witness.
to ask.
Hon. Mr. Pollock (for the Government) to witness-Don't answer the question I am about It will be objected to. Do you find in this C.S.O. of 1889 a minute by the then Governor Sir William Des Vœux dated 27th. November-
r. Slade-You had better stop there. Mr. Pollock-I must complete the question. Mr. Slade-You have asked enough to identify the minute.
His Mr. Pollock-No.
His Lordship-Eveu if you stop there it can't be evidence.
Mr. Pollock-It must general object is.
Mr. Slade - I object.
appear what the
Mr. Pollock-I want to go on with my question.
His Lordship—I don't think it is admissible. to put the question you will see-
Mr. Pollock-If your Lordship will allow me Mr. Slade-My friend is starting to put a leading question as document.
to the contents of that
Mr. Pollock—I must ask the question. taken in the abstract, from one officer to another His Lordship-I cannot see how a minute,
in a official capacity, can possibly be evidence.
Mr Pollock-I am trying to argue this matter without introducing too much, but I am driven
to it.
His Lordship-If the question is put I must take it down.
far.
Mr Slade-I object to the question as put so
Mr Pollock-An objection cannot be taken in mitted by counsel must be taken down by the the middle of a question. Any question sub. Court. This minute asks for the opinion of the Attorney General. This is important in view of the suggestion that the Governor treated Yin Chow as a pestilent fellow with no rights, If I can show that the opinion of the Attorney General was obtained by the Governor and acted upon it will indicate what was the inten- tiun of the Governor.
His Lordship-Now you come to the point whether the opinion of the Attorney General is admissible or not.
Mr. Pollock-Will your Lordship allow me to finish my question?
Mr. Slade-I object to that question being finished. It is enough to show that it is uot question to state the contents of the document. competent for connsel in the form of a leading
Mr. Pollock (continuing the question)--Ask-
sign the reclamation agreement. reference to Chu Chuen being permitted to
After some discussion as to the agreement his Lordship said he thought that Mr. Slade had better take a formal decision that the actioning the opinion of the Attorney General with was rightly brought. The question went to one of the roots of the action and if he decided the question then he would have to go deeply into the facts of the case.
Mr. Slade thought the most convenient course to adopt would be to postpone decision until his Lordship was able to appreciate the points brought forward.
His Lordship said that if the agreement came within the Ordinance then he would decide now that the parties to the action were right. If it fell outside the ordinance then he could not decide that then without going more fully into the case.
Argument was continued and the case adjourned.
Tuesday, May 11th.
The hearing of the case was resumed. The defendant denied that there was any action or ground of equitable relief to the plaintiff and that the statement of claim did not sustain a claim for the relief prayed for.
Mr. Pollock continued his speech and wished to put in the Government Gazette in support of his contention.
Mr. Slade however objected, stating that the Government were taking advantage of an error of their own in order to obtain an advantage over a third party.
His Lordship-It is a most extraordinary position.
Mr. Slade There is nothing like it at home. The hearing was again adjourned.
Wednesday, May 12th. The hearing of the action in which H. E. the Governor was plaintiff and Chu Ping defendant
was resumed.
His Lordship-I am prepared to overrule this question unless I hear good ground to the contrary.
Mr. Pollock-It won't be intelligible unless the whole question is put.
407
His Lordship-I think it is an arguable point. Mr. Slade My submission is that it is hearsay evidence, and hearsay evidence is not admissible. It is exactly on the same footing as if it were a letter written by the Governor. The only material occasions on which hearsay evidence is admitted are in the cases of entries made by deceased persons, and even if that minute fell within these conditions, preliminary proof of the death of Sir William Des Voeux-who is still alive—would have to be given. If a man is living and available as a witness a letter of his cannot be put in unless it is proved in the ordinary way.
Mr. Slade-I ask your Lordship to uphold my objection.
His Lordship-It-s
-seems to me unnecessary on the part of Mr. Pollock.
Mr. Pollock-It is important to show what the motives of the Governor were.
His Lordship-Yes.
The question was then put, and the answer was taken down that the opinion purported to be the opinion of the Acting Attorney General in 1889.
Mr. Slade, in opening the case for the defen- dant, stated that it had been decided that the persons who were entitled to come into the reclamation rights under the Ordinance were schedule in order to obtain a moral right, had to frontagers, and any frontager mentioned in the
contribute to the work which was done in front of his lot and so obtain 999 years lease of the land not needed for roads. Yui Chow refused to enter into any agreement, although Mr. Bruce Shepherd tried several times to get him to sign the agreement. After reading the judgment of the Privy Council, counsel said that his Lordship would have before him exactly the same evidence as in the case dealt with by the Privy to his own conclusion on the facts. he was in a ¡Council, and though his Lordship could come measure bound by the law in the judgment read.
Mr. Pollock-There cannot be any objection | unless your Lordship takes down the question,
Mr. Slade-When the early portion of the sentence shows it is going to be an ex-parte statement of the contents of a document which is inadmissible, I must certainly object to such a statement being made.
Mr. Pollock-I ask your Lorship to take the whole question:
Mr. Slade-I object.
Mr. Pollock-There is no such thing as objecting to a question unless it is taken down. We are not before a jury.
it down and make a note of the objection.
His Lordship-I quite admit that. I will put
Mr. Slade-Before my friend is allowed to and decide it. I object because it is obvious make an ex-parte statement hear my objection from the portion of the question already put that the rest of the question is going to be a statement of the alleged contents of an inadmissible document,
His Lordship-Answer this question? How can I try this case?
Mr. Slade-I don't know, my lord, His Excellency the Governor asks you.
His Lordship-The question has been de- cided between, Yui Chow and the Government in bringing precisely the same case.
Mr. Pollock-No, my lord, we are claiming on an undertaking which the Privy Council said Yui Chow could not sue on.
The hearing was again adjourned.
ILLICIT OPIUM.
bered matshed at Mongkok on Saturday for Excise Officers arrested a native in an unnum. having in his possession a quantity of opium the preparation of opium. The drug was packed without a permit, and machinery necessary for in boxes ready for sale, and it is believed that the with the railway staff. defendant has been doing a thriving business The paraphernalia for outhouse. the key of which was found in preparing opium was discovered in a distant defendant's pocket when he was arrested.
Mr. F. A. Hazeland, before whom the case that it was a bad one and imposed a fine of was tried at the Magistracy yesterday, remarked $500, in default three months' imprisonment.
RECKLESS DRIVING,
Some of the riosha coolies at Wanchai appear to be imbued with extra energy, for of late they have been making the pace so fast that they have been unable to haul up in time to avoid collisions. One coolie, while travelling at a high rate of speed along Wanchai Road knocked a small boy down, and did not wait to see what and he had to be removed to hospital. damage he had done. The boy's leg was broken,
Another accident occurred in Arsenal Street, where a pedestrian was overtaken by a ricsha and run down. In this instance, however, the coolie stopped, placed the injured man in his Mr. Pollock-I ask that my objection beriesha and conveyed him to No. 2 Police noted that a question cannot stop in the middle Station. The victim was removed to hospital,
His Lordship-I cannot see how this can be evidence.
Mr. Pollock-If the words of the Attorney General are left out there is nothing to argue. My learned friend has taken his objection too
soon.
where he is expected to be detained for a couple of weeks. The coolie appeared before Mr. F. A. Hazeland at the Magistracy on May 10th on a charge of reckless driving, and the hearing of the charge was adjourned, bail being fixed in the sum of $10.
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