September 18, 1909.]
CHINA OVERLAND TRADE KEPORT.
253
offender or that the Chinese authorities wished I him from his father and that his indebtedness. I felt, he had come to the conclusion that the ice to punish him for a political offence.
amounted to about $30,000 and his assets to Mr. Slade said the Crown had the man illegal-about $5,00 or $6,000. He denied having ly in custody and did not execute
the
removed any of his stock when he knew he was warrant in a proper manner. The man never insolvent in order to place it out of the was discharged, and the warrant was executed jurisdiction of the Court. upon him while he was in custody.
His Lordship remarked that a Magistrate could sit in a Court only.
* Mr. Alabaster-The Ordinance says room or building. It says nothing about a Court.
His Lordship-But the Magistrate cannot turn a room into a Court without authority.
Mr. Alabaster There is nothing in the Magistrates' Ordinance which appoints a Mag- istrate to sit in a Court only.
Mr. Slade This was not a Court. It was only a courtyard.
His Lordship The prisoner cannot be held to be discharged while he was yet in prison.
Mr. Alabaster-He was just as free as the Magistrate. The Magistrate was in prison and the solicitors were in prison, but they would certainly consider themselves free.
His Lordship A man is not discharged until the terror of the law is removed from him. The terror of the law exists for the man while he is in prison, and he is not free from it until he is out of it.
Mr. Alabaster-A man can be arrested in prison, my Lord.
His Lordship-I am not sure. That is another matter,
Mr. Alabaster-The Court sat in prison for the prisoner's benefit,
His Lordship But it was utterly illegal.
When the Chief Justice asked later what steps had been taken to create a Court in Hongkong, Mr. Dennys replied that the Court had moved into the Masonic Hall and into Jardine's buildings, but no proclamation was ever made. He believed a notice was inserted in the Gazette.
His Lordship said there should have been a proclamation. It was a most extraordinary thing.
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Mr. Slade argued that there could be no double arrest. The first arrest continued until the man was released.
His Lordship-You cannot change the cause of arrest in prison. There must be a period.
Mr. Slade An intervening moment. It is always done with most scrupulous care. It is a farce. The man is allowed to go outside.
That is
Mr. Alabaster-For another reason. because it would be contempt of court to arrest
him in Court.
His Lordship-No, no.
Mr. Slade The man is allowed to go outside the Court.
His Lordship-He must have a free moment. Mr. Slade-It must be a moment when he is technically free from restraint.
Mr. Alabaster—I make the point that there was a free moment.
Mr. Slade- Locked doors,
Mr. Alabaster-He was not in custody. His Lordship-He was in prison. His Lordship indicated that he would an nounce his decision before he delivered judgment.
Wednesday, September 15th.
IN BANKRUPTCY JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR F. PIGGOTT).
UNSUCCESSFUL SPECULATION.
Be So Yut Sang, Mr. Fletcher, Deputy Official Receiver, said an order had been made by the Court calling upon the debtor to show cause why he should not be imprisoned for misdemeanour. It was alleged that while knowing himself to be insolvent he had incurred debts when he had no possible expectation of being able to pay them.. He did not wish to press for imprisonment, as the debtor had explained that he had large dealings in landed property and he had a reasonable hope that if land values had risen he might have been able to pay his debts.
Debtor's discharge was suspended for two
years.
WHOLESALE TIMBER DEALER'S FAILURE.
Sung Cheong Chi came up for his public examination. In reply to the Official Receiver he stated that the business was handed down to
:
The Official Receiver said that the assets, consisting of book debts, were fairly good.
Mr. F. X. d'Almada applied for costs on behalf of a creditor who had protected the estate. They had discovered that timber was being removed and obtained an attachment.
After discussion His Lordship awarded appli- cant $25 and out of pocket costs.
AN UNFORTUNATE SURETY.
In the examination of Yuen Lau Hin, who carried on business as a building contractor under the name of the Loong Hing firm, it transpired that he attributed his failure to having become surety in $5,000 for the compra- dore to the Robinson Piano Company, who had absconded.
Mr. F. X. d'Almada also applied for costs in this action for having taken steps to protect the estate, but on hearing a statement by the Official Receiver he withdrew his application and the debtor was adjudged bankrupt.
Thursday, 16th September.
IN ORIGINAL JURISDICTION.
BEFORE THE FULL COURT.
THE ICE CASE.
Judgment was delivered by their Lordships in the action in which the Hongkong Milling Com- pany, of which Mr. H. Percy Smith is liquidator claimed $100,000 from Arnhold, Karberg and Co. for damages, for alleged failure to supply an ice-making plant according to stated require ments. Sir Henry Berkeley, K.C., and Mr. M. W. Slade, instructed by Mr. John Hastings, appeared for plaintiffs, defendants being re- presented by Mr. MacNeill, from Shanghai, and Mr. G. C. Alabaster, instructed by Mr. H. W. Looker, of Messrs. Deacon, Looker and Deacon.
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The Puisne Judge delivered a lengthy judgment, in the course of which he dealt with the meaning of the word "clear" as appeared in the warranty, and said there was as far as he could see no evidence at all that the adjective"clear" had in the ice trade any other than its ordinary meaning. It would certainly be difficult to say from a certain passage in Borsig's catalogue whether the words "clear and "transparent' were opposed to one another or not. Ou the whole he was inclined to think they were not. The suggestion made on behalf the defendants amounted to this, both parties to the contract were well aware that all can ice was inferior to plate ice. They knew that the Hongkong Ice Com- pany made plate ice which had no core, and that Borsig's plant produced can ice which had a core.. When they agreed the one to sell and the other to buy a can ice plant warranted to produce ice equal in clearness to that of the Ice Company, they had in contemplation that it would produce ice of an entirely different kind from, and for clearness in no way comparable to, the Ice Company's ice. It would follow, from this that when Mr. Rennie made his con- tract with Jardine, Matheson and Company and gave a
similar warranty of clearness for the ice he was to supply, he knew perfectly well that it was a warranty he could never fulfil. He (the Puisne Judge) could not put this construction on the language used and be unable to believe that the parties meant what the Court was asked to suppose they did mean. his much was at any rate certain, either they did not really know very much about the different systems of ice plant and their respective products and were content to give and receive guarantees in a somewhat unbusinesslike manner, or they used words in a sense very different from the usual meaning of those words, or they really believed, whether wisely or prudently or not, that with an up-to-date and scientifically constructed can plant they could turn out ice as clear and transparent in every part as the best plate ice. He was inclined to accept the last of these three alternatives. His Lordship said that after some little hesitation, which he no longer
produced by the Milling Company's plant was not as clear as that of the Hongkong Ice Company. It seemed to him that the warranty must be construed to cover whole blocks as turned out, though it might be possible by minute sub-division to get flakes of ice from the can plant as clear as that of the Ice Company. Referring to the tests, his Lordship said the Milling Company's ice was less solid than the Ice Company's and he must there- fore hold it to be inferior in staying power and consequently in merchantable quality. It followed that the ice produced did not therefore come up to the warranty and he found this as a fact. The plaintiffs never got the ice they bargained for, and he saw no reason why they should be obliged to take a quality of ice entirely different to that for which they had contracted and which they did not want. To put a new sort of ice of inferior keeping quality on the local market in the face of the powerful competition of the Ice Company was a speculation on which they were not called to embark, at any rate at their own risk. The next question was to the damages which plain- tiffs were entitled to recover. There was a clear breach of warranty, and the plaintiffs had claimed for the full price paid for the ice plant, including cost of installation, giving credit for the estimated present value of the plant. This they were entitled to do, or, in the alternative, to return the plant to defendants and recover its cost in full. The plaintiffs were, however, claim- ing as special damages the loss of profit on their contract with Jardine, Matheson and Company, not for the whole term of the contract, but for five years. As to that point their Lordships were still in some difficulty, and they reserved it for further consideration.
The Chief Justice said-I am in general agreement with what has been said in this case by the learned Puisne Judge, but I have to make a few remarks on the way in which the case was conducted. A judge's view as to the conduct of a case must affect his judgment, and in this instance the way in which the case was conducted accounts so far as I am concerned for the delay in delivering judgment. I have delay- ed as long as I could in order to allow impressions to wear off. Now I am not going to deliver a homily on the way to conduct a
case, but what I have to say must be said, and I hope it will be taken in good part and for guidance in the future. The case was fought with an acrimony which was absolutely unnecessary. If
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there ever was a case which should have been fought with sobriety it was this. There were general aspersions made, and made especially by the junior counsel for plaintiff, who in this case seems to have usurped the position of his leader without the permission of the Court. It was a lawyers' defence." Defendants took, as they were justly entitled to, every possible defence in law. It was tactfully and most ably conduct- ed. Then there was a general statement that facts were being manufactured by the defendants. Counsel are bound by their instructions. There was, I know, a peculiar difficulty in this case because of Mr. Rennie's lamented death, but this does not justify suggestions of other facts. His Lordship then examined the evidence in detail, and expressed the conviction that Mr. Rennie had some knowledge of the manufacture of ice, and that there was a contract between the two parties by which defendants were bound. The only other question which seemed to arise was the question of warranty, and here they must take the wholesale trade and look at it as a question of blocks of ice-that was, were the blocks produced by the can system as clear as the ice of the Ice Company. They were not. He could not disguise from himself the fact that although ice for ice they were about the same, perhaps the can ice was a little more bril. liant. The needles did interfere with the passage of light through it and made it less transparent. In conclusion, he held that the case for the plaintiffs was made out, and said the Court had yet to consider the question of special dam- ages. It was a question they could not at pre- sent agree upon, but they hoped in the course of the next week to do so, when they would add it to their judgment in chambers. For the pre- sent judgment would be for plaintiffs with costs of the machine, exclusive of the question of profits, which would be referred to the Regis trar to report. They would add to their judg-
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