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Colonial Cases

Fang Choo Ho v. Cushny, 1861

[land title - appeals]

Fang Choo Ho and others v. Cushny

Consular Court, Shanghai
1861
Source: Source:The North-China Herald, 25 May 1861

 

H.B.M. CONSULAR COURT, SHANGHAI.

April 29th, 1861.

FANG-CHOO-HO, CHAOU-SOO-SAN and WANG-YIH-YUEN,

versus

ALEXANDER CUSHNY.

Before W. H. MEDHURST, Esq., H.M.'s Consul,

T. J. ASHTON, A. J. HOW, R. ROTHWELL, T. MONCRIEFF, Assessors.

Plaint. - Defendant has obtained Foreign Title Deed for certain land under a fictitious purchase, the said land being the property of the Sing-own-ne-an Guild, and which they have sold to John L. Maclean, Esq., who holds the original Chinese Title Deeds for the same, and a Deed of Sale made by them to him.

The parties being before the Consul, the Plaint has been read to the Defendant, who has been asked whether he admits or denies the truth in the whole or in part.

The DEFENDANT, in reply, says: - I deny the claim entirely, and lodge a protest against the summons being issued [document handed in].  I deny the claim and fall back on my possession of the title deed.

[Protest accepted, but overruled, and case ordered to proceed.]

CHAOU-SOO-SAN, Manager of the Hing-ngau Guild being duly warned, states: - I have sold the land in dispute to Mr. Maclean, and dispute Mr. Cushny's possession of it accordingly.  I can prove the sale by a deed of sale with which I handed over the original title deeds of the property.  2nd moon, 19th day, I sold the land for Tls. 4,500.  I have received the price for it Taels 4,500); part on the 1st, part on the 2nd, and part on the 3rd day.  I know nothing of any sale to Mr. Cushny.  I never saw the Tepaou.  He has no connection at all with the Guild, he only sees that it pays its taxes.  I have already complained to the Taoutae of the sale as a fictitious one.  I first heard of the sale to Mr. Cushny on the 25th.  I have not seen the documents that passed between Mr. Cushny and the Tepaou.  When I settled with Mr. Maclean I sent to the Tepaou to get the document signed, but he refused.  Woo-lien-tang is the Tepaou of the district.  I did not ask him myself, but one of us wrote to him and got no answer; on the 27th I wrote to the Taoutae.  On the 19th I sold to Mr. Maclean, on the 23rd or 24th I heard of its sale to some one else, and on the 27th I wrote to the Taoutae. I am not quite sure it was about the 23rd or 24th I first heard of the sale to Cushny.  I first heard of the sale from one of the other two Plaintiffs.  His name is Fong-sze-ho.  When we wrote to the Tepaou he refused to come.

Examined by Assessor. - The managers of the Guild are appointed yearly by the subscribers through two of the body - merchants attached to the Guild.  I hereby produce my appointment for this year.

Examined by Defendant. - Fang-teen-ho has gone home to his family.  My appointment is dated in the winter months and acts for the ensuing year.  Fang-teen-ho has never had any office of any kind in the guild, he kept a shop and got into debt, and had to go away.  A man in trade can never hold office in the Guild.  I heard before the 19th from Wang that the Tepaou had been negotiating for the land for Mr. Cushny, and that the Tepaou was told that the price was not sufficient.  I don't know Mr. Jenkins and I don't know of his having made any application to the Guild about the land.  The Tepaou is the only man I heard of applying for it before it was sold.  Fang-teen-ho went away four years ago. (The form of application, dated March, 1861, is signed by Fang-teen-ho in the Archives.) I know Fang went away four years ago, because he stopped his taxes and his shop was shut.  Wang told me that the Tepaou had been repeatedly urging the sale to Cushny, but was told that it could not be, as a sale was being negotiated with Teen-chang-hung (Mr. Maclean).

WANG-FEI-TSUI, Master of Fang-choo shop, a manager in the Hung-ngau Guild, being duly warned, states: - I am not a manager - but I am a sort of permanent Secretary and conduct all the business.  I have the same power as a manager, as the members of the guild are few.  On the 9th month last year Mr. Maclean's compradore came to me about the purchase of this land.  Mr. Cushing's man came and applied in the 12th month - this man was a Tepaou named Woo-lien-tang.  At the time Mr. Cushny's application was made, I had not settled with Mr. Maclean.  In the 1st month of the year it was settled for between Mr. MacLean and Chaou-soo-san (1st Witness).  In the second month the Tepaou came again and I told him that he must go and see Chaou-soo-san about it as I had no voice in the matter.  I repeatedly told them all that I had no voice in the matter.  About the end of the 2nd month I heard that the Tepaou had sold it to Mr. Cushny.  The Tepaou had no authority either from me or any one else, he did it on his own authority.  The Tepaou had no title or property at all over the land, all he had to do was to see the taxes paid on it.  The land has original title deeds, they were given to Mr. Maclean.  (See enclosures in letter to Consul of 3rd April).  I acknowledge the ones produced as being the original ones.  The land was sold by myself, Chaou, and another one now outside, about the 17th of the 2nd month.  I told the Tepaou myself that it had been arranged to sell it to Mr. Maclean, and the Tepaou said it must mot be sold to him but to Mr. Cushny.  No bargain money was given by either party as far as I know - the man Chaou may know.

Examined by Assessors. - There are some two or three Tung-tzses in the Guild.  When anything is wanting we always go to the old man Chaou.  I don't know of any warrant.  Old Chaou has been chief for 5 or 6 years - year by year being requested to keep on.I know Fang-teen-ho, his shop has been shut 2 years, he left last year about the 3rd month for Ningpo.  I think he was one of the subscribers to the guild - a share-holder - he was a manager when he was here, he is not now.  It was the Tepaou who sold the land to Mr. Cushny, nit Fang-teen-ho; when the man Chaou heard of this sale immediately steps were taken to report it to all the officers.

Examined by Defendant. - There are two Tepaous, the correct one is Woo-lien-tang.  The earliest application on behalf of Mr. Cushny was made in the 12th month, no application was made by the American interpreter about the land.

WANG-YIH-YUEN, manager in Hang-nga guild, - This land was negotiated for to Mr. Maclean in the 9th month of last year, the bargain was concluded in the 1st month and the money paid in the 2nd month.  The medium of communicating was Chang-tsui-tung, he was formerly Tepaou.  I received the money.  There are 3 managers in the guild, I am one of them.  The first witness is one, the other named Loo is now in the guild; the land belongs to the guild, there are title deeds to prove it, (these produced in Court, are the deeds.)  I knew Fang-teen-ho, he is now dead.  He had a shop in the 6th year of Hien-fung, he closed the shop in the end of the 6th year, he died in the 7th year, and his family returned in the 8th year.  He was formerly a manager, he has no relations left, he was a manager when he died.  The American interpreter never made any application about the land.

(Plaintiffs here require that the despatch to the Taoutae which was supposed to have been forwarded by H.M.'s Consul should be produced in Court, there being no more witnesses to call.)

BRITISH CONSULATE.

SHANGHAI, May 1st, 1861.

SIR, - Referring to your letter dated 11th ulto. Relative to the disputed title to land purchased both by the Chang-le and Tien-chang Hongs, I beg to acquaint you that a Court has been sitting for some days past to adjudicate the case, but no decision has as yet been come to.  Meanwhile I beg you will order the Chi-hien to issue an injunction for the appearance before me on Monday next of Fang-teen-ho, the man whose name appears on the deed of sale to Chang-le and who is an important witness in the case.  Particular care will be necessary in establishing the existence and presence of this man in Shanghai, as he is declared by the vendor to Chang-le on the one hand to be alive, and at this moment in Shanghai; while the three vendors to Tien-chang, on the other hand, agree in making him out to be absent, one of them stating that he left for Ningpo many years ago, a second that he died some years ago, and a third that he removed hence only lately.  I have also to request that you will direct the Chi-hien to inform me distinctly, who is the person properly authorized to sell land for the Hing-wha guild, whether the permanent official manager, the yearly directors, the keeper of the Guild House, or the five Hing-wha firms who are understood to be the overseers of the whole concern.

You will also oblige me by directing the attendance on Monday of Chang-tsui-tung, the old Tepaou, and Wang-chang-sing, the man in charge of the Guild building.

I have, &c., W. H. MEDHURST, H.B.M.'s Consul.

(Defendant desires to call the Taoutai and Tepaou.  The Tepaou not having arrived he proceeds with his statement, and the Court rules that the Taoutai's seal on the Title Deed is sufficient to make it a formal document without citing the Taoutai to appear.)

J. L.  MACLEAN being duly sworn, states: - I several months ago desired my compradore to look out for several pieces of land, it was about last August.  He advised me of a lot in which I was disappointed, he then advised me that this piece of land was for  sale.  I desired him to make the necessary arrangements to purchase it, about new year he said it was all settled.  I told him when he could bring all the documents complete I would have it registered at the Consulate, in the meantime authorizing such payments as he deemed safe.  He came to me with everything complete with the owners to sign the deed of sale, and one I supposed to be the Tepaou (he had previously registered land for me) to sign and seal in my own house.  I brought the deed of sale to Mr. Alabaster, who looked at the Tepaou's seal and desired me to call in two or three days when I should have my title deeds.  The Tepaou was Chang-tsui-tang.  I asked of it was necessary to bring the original title deeds and he said it was not - this must have been about the end of March.

I then next day received a note from Mr. Alabaster stating that there was an informality about it and returning the title deed.  I came down to see that it was and he said that the deed had not got the proper Tepaou's seal, and that the land belonged to Mr. Cushny who held the title deed.  I then addressed H.M. Consul on the 3rd April (a letter read in Court.)  I have purchased only 18 mow, and Mr. Cushny's purchase includes 24 mow, fort the other 6 mow I have been negotiating but as it is grave-land they cannot sell it just yet, but have handed me the original deeds as security that they would sell it to me when they did sell it.  The new Tepaou's name is entered in the deed of sale on the disputed land, and I have tried to get him to come and seal it, but he will not come.  The first witness and third were the two men that came to my house and signed the title deed, they offered to bring the other but he was not wanted.  As H.M. Consul had no time to look into the case, I requested the men to apply to the authorities to address him officially on the subject.  I should like to have hjis despatch published.  I wish to state as my grounds for standing the trial, that new title deeds granted under error cannot surpass the original deeds held by me.  I did not make any application to the Consulate before purchasing as I considered it useless and not customary, as any Foreign Consul can settle land in this part of the Settlement as well as H.M. Consul.  On the 23rd March, I imagine was the day that the sale was finished.  Chang-tsui-tang was present and sealed the paper.  He was the last man through whom I purchased land, we have had no notice of his being superseded.

SHANGHAI, Aperil 3rd, 1861/

THOMAS TAYLOR MEADOWS, Esq.,

H.B.M. Consul, Shanghai.

SIR, - I have to inform you that I have lately purchased a piece of land (or hired according to local custom,) situated in front of the London Mission, belonging to a Chinese guild; that on application to Mr. Alabaster to have the same duly registered in my name I was informed that it required the stamp of another Tepaou Oong-ling-ting, and that the stamp of the Tepaou on my deed of sale, Chong-soey-tong, was useless.  Subsequently he has informed me that the land has already been sold to Mr. Cushny and registered at the Consulate, consequently it would be now impossible for me to procure the deeds for the land.  As I had paid 2,000 Taels on account of this purchase I sent for the vendors of the land, who immediately came accompanied by the old Tepaou, and they most solemnly assert that they have never sold the land to any other person than myself, and moreover positively refused to sell to Mr. Cushny when requested by Oong-Ling-tong, as they were under negotiation through the old Tepaou to make the sale to me, and requested to be confronted before H.M. Consul's with Oong-ling-tong, and the self-established owners of the property, from which Court they would most willingly adjourn to mandarin examination to prove the verity of their statement and enquire into the conduct of all concerned.

In support of their assertion I may state that I hold the Chinese title deeds, which I now enclose; that I have repeatedly sent for Oong-Ling-ting without avail; that the said Oong-Ling-ting had handed Mr. Cushny's order for payment to the old Tepaou Chang-soey-tong, requesting (as the latter informs me) him to give it back to Mr. Cushny as he did not wish to commit himself by collecting money that might cause further trouble.  I enclose copy of this order, and considering it is dated on the same day as Mr. Cushny's title to the property was registered at H.M. Consulate it seems peculiar that such has not been cashed yet, but handed to a Tepaou who Mr. Alabaster cannot recognize.

It seems to my humble judgment that in the event of Oong-Ling-tong having affixed his seal to a deed of dale whereof the owners were not consenting, he will have practiced a fraud undetr cover of his seal and obtained the unwilling sanction of the same by the seals of H. M. Consul and H. E. the Taoutai.

On the other hand, should the vendors of the land to myself as per enclosed deeds prove their absence of ownership, they will have committed fraud by receiving monies from me for which I hold their receipt.

With the knowledge that you have always been anxious to protect the respectable Chinese from coercion while in this settlement, I have less hesitation in respectfully requesting you to institute a fair enquiry into this case; and if the sale to Mr. Cushny have been merely a fictitious one, I plead the title deed granted to him may be cancelled as it could not in such case be legal.

I remain, Sir, &c., JOHN L. MACLEAN.

ALEXANDER CUSHNY, being duly sworn, states: - I settled to purchase the land on the 5th March with Tepaou Woo-lien-tang.  I had been in negotiation three months before through the Tepaou with the parties he represented as owners.  Fang-teen-ho was one.  I have also been in negotiation with Mr. Jenkins.  I made application to the Consulate to purchase the land in December (letter read dated 27th Dec.).  The next day I heard that the owners did not wish to sell it unless another piece was added, and I wrote again (read, dated 28th Dec.).  I brought the deed of sale to Mr. Alabaster and some days after I received the title deeds.  I have paid two orders, and I was to have paid the remainder when some graves were removed.  I have since taken possession and placed boundary stones, cutting a road through and mortgaging the land.  I believe neither of the two orders have been cashed.  I ordered them not to be cashed before seeing you about it.  Some days after I got the Consulate title deeds, I heard of a doubt.  I heard that some one else was entitled to sell the land, named Swa-hey-ling.  I have never seen Fung-teen-ho, I have negotiated entirely with Woo-ling-tang.  I understood that Fang-teen-ho had the power of selling the land on account of the guild.  Mr. Jenkins never mentioned who he looked on as the owners.  I don't know who it was but I believe they are the proper persons, as he is a man well up in China.  I paid at the rate of $365 per mow, amounting altogether to $8,300 odd.  I admit the paper produced in Mr. Maclean's letter as one of my drafts.  I gave the Tepaou an order for $100 as bargain money, which was eventually returned to me.

CHANG-A-WOO, Coolie in Cushny's employ, being duly warned, states: - I first commenced in 11th or 12th month of last year with the old Tepaou, in the 12th month the new Tepaou commenced working.  With the old Tepaou the price was too high, he used to say that Mr. Maclean had been in negotiation for the land.  I went to the guild and saw an old short man who was in charge of the place; I don't know his name, he is still there.  I did not negotiate the price with him, only with Woo-lien-tang.  I don't know Fang-lien-ho; I know the name for I heard the old Tepaou say that he was in charge of the guild.  There were several people in the guild.  Fang-teen-ho is a shopkeeper outside the great East Gate, Woo-lien=-tang told me so, I never saw him.  There was another application written with several names on it, if was afterwards changed for the one I see.  I asked the Tepaou why he changed it, and he said that of all the 5 or 6 names this was the head, and that it should alone remain.

Cross-examined by Defendant. - The Tepaou told me the Fang-teen-ho went away about the 12th day of 2nd moon to Ningpo on business.  I don't know if Fang-teen-ho received more, but I know of two orders given to the Tepaou with some reservation as to graves.  I swear that I never saw Fang-teen-ho.  I told the Tepaou to be careful putting a man's name that was not in Shanghai, and he said it was all right and brought the paper signed.  I did not see him sign it.  I don't know why Fang-teen-ho does not come back.  I have heard the Tepaou say that Fang-teen-ho can come back and clear away the graves and take the money.

Adjourned to 29th April.

WOO-PING-CHUEN, alias WOO-LIEN-TANG, a Tepaou of the 3rd constabulary, being duly warned: - In the 1st month Vice-Consul Meadows told me that Cushny wanted land, I then went to see the land with Cushny.  He told me to enquire the charge.  I went to the guild and saw a man named Wang.  This man told me that he could not give an answer, but that he must consult with five other men who were in the guild - one of them is the 2nd witness, one is Fang-teen-ho, another is So-yuen-ling, Chang-vau-jin and Chang-ta-cha were the others.  They would not believe it, they said I wished to buy for a Canton man, so they came with me to the gatekeeper of this Consulate.  They then said that they would sell for 3,000 Taels not less, including graves.  They said if you can get more - get more.  This occurred in the first few days of the 2nd month.  Then I went back to Cushny and concluded a sale for 8,833 dollars.  We then all went to Fang-teen-ho's shop to write the deed of sale.  I then gave them a draft and the deed they were to write and it was afterwards given to me written out by the man Wang - it was about the 3rd or 6th of the 2nd month.  I then said who is to receive the money, the 2nd witness said you must settle withy Chang-tsui-tung.  I declined going to Chang.  Fang-chu-he said I must, as he was the man to be consulted.  I afterwards went to Chang, and he said he was very willing to sell the land, but could not come to any agreement about it - Chang said that two men in the guild would not consent - the 1st and 3rd witnesses - and then I said if you will go with me I will go and see them.  We went, but the men declined having any thing to do with me.  I went back to Chang who said that he could not settle it, and that each man had better go his own way; eventually I could not get them to receive the money.  They refused to have anything to do with it.  Fong-teen-ho has a shop outside the East gate.  I believe he is in his house now, but I have not seen him for the last four or five days.  This Fang-teen-ho was one of the yearly managers of the guild with just the same power as a fixed manager.  This deed of sale was given me by a man named Wang - the man I first mentioned.  There was no one in particular present when Wang gave me the deed of sale signed by Fang.  It was given me on the 15th or 16th March, and must have been written that day.  When I took the deed I had no idea that there were original title deeds belonging to the land.  I did not hear that Mr. Maclean was in treaty for the land at the same time.

Examined by Assessors. - I was in communication with Mr. Jenkins about it on the 12th March.  There were two of the deeds of sale brought up on 3 or 4 days before the conclusion, the 2nd after the 1st had five names, the 2nd one name.  The reason the change was made was that there was to be a yearly manager, and as long as he agreed with the other three it was all right.  As regards handing in original title deeds, I do not know the practice of bringing them forward, as I have not been here long; but the old Tepaou, my uncle, never produced them.  This deed produced (Mr. Maclean's) is the original title deed; I have never seen it before.  It is no doubt a correct title deed, judging from its appearance.  I have purchased land for Foreigners before, but I have never had the original title deeds produced.

Examined by Defendant. - The five names on the 1st deed of sale are - Soo-fang-tsoo, Fang-teen-ho, Souy-yung-shun, Chang-wong-shin and Chang-ta-cha.  One is Leusin, the 3rd witness.  I received no orders to have the original title deeds of sales to be produced by any one in the Consulate or the Native Authorities; the few I have had to do with, I have not had to produce them during the year I have been Tepaou.  A sale by Fang-teen-ho is equal to a sale by the five men, as Fang-teen-ho is yearly manager by their consent.  I believe him to be here, but am not sure.  The five men did not sign the first deed, it was only written out in preparation.  When I received the money orders I gave them to Chang-tsui-tung.  He then wished to return them.  I said you must take them to the Chang-li hong (Mr. Cushny).  He afterwards gave them to me and I returned them to the Chang-li hong.  The deed of sale was given me by Wang (the gatekeeper).  I did not see it signed.  I have no proof that Fang is the manager - this is the generally accepted opinion.  The old man (1st witness) is the permanent manager.  I asked the five men to name some one to name a chief.  They said there was none; that in the 2nd month the chief had refused to accept salary and there was none.  I then s aid there must be the yearly manager.  They said that Fang-teen-ho was the yearly manager.  Teen-ho is the name of his shop, and his surname is Fang.  I don't know his name.

TAOU-SING-YUEN, - Writer in the Consulate being duly warned, states: - I have been here 5 years as Teacher.  I have never known an instance of the original title deed being called for; there has been no means of establishing the facts, except the Tepaou's own statement.  The signatures on Cushny's deed of sale were on when the paper was brought here; I forget about the Tepaou's seal, if it was placed here or before it came here.  I have seen Mr. Maclean's deed of sale when it was brought in, it also was signed before I saw it; it had two names of Tepaou's - one the present Woo and one Chang-tsui-tung.  As his seal was not accepted Woo was sent for.  He came and said he could not seal it, as he had already sold it to another.  The custom here has always been to hand in such deeds of sale.  They are said (sic) to the Taoutai and the sale is complete, no question are ever asked.  The blanks in the new foreign title deeds are always filled in here and a note sent to the Taoutai requesting his stamp.  The title deed is sent in triplicate, the deed of sale never goes in.  The title deed is a transcript of the deed of sale nearly.  The deeds of sale were never sent in duplicate.

(2 Letters from Taoutae read by Consul.)

Source:The North-China Herald, 1 June 1861

BELOW will be found the conclusion of the trial, with [?????]  [?????] Land Title, interesting to both foreign and native residents at this port.  This decision, if confirmed, will exercise an unfortunate change in the rights of native landowners, who will become liable to ejection at the caprice of the Tepaou, a dangerous power to place in the reach of a petty officer, and a tempting invitation to foreigners to avoid the customary trouble and delay in arranging land values with unreasonable owners; at the same time, we would hail with pleasure a return to the old system of causing the appearance at H.B.M. Consulate of the owners and our chaser, the Tepaou retiring into his proper position as witness to the deed of sale and measurer of land for the due collection of taxes, instead of the present innovation of the Land Regulations in accepting his seal to a document as the "ne plus ultra."

H.B.M. CONSULAR COURT, SHANGHAI.

April 29th, 1861.

FANG-CHOO-HO, CHAOU-SOO-SAN and WANG-YIH-YUEN,

versus

ALEXANDER CUSHNY.

Before W. H. MEDHURST, Esq., H.M.'s Consul,

T. J. ASHTON, A. J. HOW, R. ROTHWELL, T. MONCRIEFF, Assessors.

CHANG-TSUI-TUNG, formerly Tepaou of Yang-king-pang, being duly warned, states: - On the 9th month of the year before last, I stopped acting as Tepaou.  I only acted as middleman in this transaction.  I acted as middleman at the request of Mr. Maclean.  The guild did not ask me to act as middleman.  I first commenced negotiating about this land on the 9th month of last year, and continued to negotiate till the 1st month of this year.  I settled it with the old man (1st witness) and Wang-yih-yuen (3rd witness).  Wang-yih-yuen wrote the deed of sale when it was finished.  I don't remember the date the deed of sale was written, but it was a few days after it was settled.  I had no idea of any other person carrying on any other transaction about the land.  I sent again and again for the regular Tepaou to sign the deed of sale, but he would not come; I don't know why.  At the time of the deed of sale, thee original deeds were eventually produced, as Mr. Maclean doubted as to their being the owners, and the deeds were produced to convince him it was originally sold to the guild by a man named Shih.  I don't know Fang-teen-ho.  I never knew of such a man at all.  The only ones I had to do with were the men I named.

Examined by Assessors. - I did have conversation with Woo-lien-tang, and Woo-lien-tang said that Cush by wanted the land.  I said that the proper persons to sell the land were the managers of the land, not the Tepaou.  I spoke to him two or three times in the 1st month.  The Tepaou did show me and offer me an order of Cushny's, and when I refused because Mr. Maclean had bought the land, he wanted me to induce the others to accept it.  There is a Teen-ho shop in the north of the city.  I don't know whether there is - don't know anything about such a name.  I heard that Mr. Maclean's money was sent by two coolies (Tls. 2,180) by Chang and Wang to a man named Fang-chu-ho.  That is the nearest name to Fang I remember.  The man Fang-suy (2nd witness) is a shop keeper.  The money was sent to him because he was one of the yearly managers.

Examined by Defendant. - I never went with Mt. Cushny and Woo-lien-tang in December last to point out the plot of ground, and offered to negotiate it.  I did not go, nor any one belonging to me.  I was imprisoned on the 2nd day of the 12th month on a complaint from H.B.M. Consulate, and as I was sick I was let out on surveillance on the 25th of the 1st month.  I have been at home ever since sick.  I did carry a draft to the room of Cushny's Compradore; it was the beginning of the 3rd month.  I was not sick at the time.  It was my son that was sick in the 1st month when I was bailed out.  I was not ill when I negotiated for the land, my son was ill at the time.

(Letter from then Consul to Taoutae with reference to Fang-teen-ho and others and the Taoutae's answers here read.)

Draft translation of letter from Taoutae Woo to Mr. Consul Meadows, 11th April, 1861.

I have received the following petition from the District Instructor Chaou-shou-shan and the Hing-wha official Wang-y-yuen:-

We have for years acted as managers of the Hing-wha Guild House.  The cemetery property of the Hing-wha corporation is situated outside of the North gate of Shanghai, in the 3rd constabulary.

In connection with it is a public burying-ground, a surplus piece of land, measuring some seventeen mow or more.  We negotiated with the British firm Teen-tseang (J. L. Maclean) for the sale of this lot, through a go-between Chwang-tsuy-tung, and two others Wang-y-yuen and the Fang-choo firm, the last two of whom originally purchased the property for the guild.  The price was agreed on, a deed of sale was drawn up, and delivery was made by these men.  The original deed by which the property was transferred in the 7th year of Taou-kwang, being in our hands; and the Teen-tseang firm being desirous of having the property on terms to which they and we agreed, we thus concluded the sale and handed in a deed in support thereof to the British Consulate.

All of a sudden the Tepaou Woo-lien-tang states he had sold the property to the British firm Chang-le (Cushny) and forthwith had a deed drawn up, but did not receive the purchase money.  It was of course out of the question for us to put up with such an unauthorized truncation in land of which we have long had the possession under recognized deeds, and which therefore we were properly authorized to transfer.  We therefore at once handed all the original papers to the Teen-tseang firm for delivery to their Consul, and we have now to lay before your Excellency a specific charge against the Tepaou for the daring fraud which he had committed in order to benefit his own purse, and which has brought about the persistent refusal on the part of the Chang-li firm to yield up the land; and we beg you will write to the Consul informing him our deeds are legal and correct, and requesting him to allow the Teen-tseang firm to have the land, and to hand back the fictitious deed of sale granted to the Chang-le  form for formal cancellation.

The above petition having come before me, I conceive that the conduct of the Tepaou Woo [line missing] faith of recognized title deeds, is daring and fraudulent in the highest degree; and I am bound in duty to lose no time in clearing the matter up in order to prevent litigation.  I have accordingly notified the magistrate of the fact, and I have now to request you will permit the Teen-tseang firm to have the land on the faith of the document properly belonging to it, and forthwith direct the fictitious deed to be returned to you and sent me in order that I may have it cancelled.

Draft translation of note from Magistrate Lew to Consul Medhust, 30th April, 1861.

I yesterday received your note enquiring who is the head of the Hing-gau guild and who the Annual Manager, and to-day I got a second note requesting me to order the Tepaou, Woo-ping-tsuen, and the prisoner Chwang-sing-tsung to appear before me at 10 a.m. to-day.

In regard to the first point I have learnt as follows from a messenger who I sent to investigate the matter.  The manager (Tung-sze) of the Hing-gau guild is Chaou-shoo-shan, who has hitherto had direction of the official business of the Hing-gau corporation.  The directors of the yearly business of the guild are Wang-y-yuen and Foo of the Fang-choo firm (the 3 plaintiffs), who have an assistant named Loo-yung-shing.  One of the men whose attendance you require, Chwang-suy-tung, I have repeatedly bambooed the police for not taking up, but they have always pleaded that he is too ill to be moved with safety' so I have held them responsible to produce him the moment he is better on pain of being severely punished themselves.  I have, however required him to be brought before you in company with the other man Woo-lien-tang at the time you name, to await your orders.

C. ALABASTER duly sworn. - Mr. Maclean came with a regular deed of sale and asked if it was all right.  I was busy and said I would see, I think Mr. Maclean asked me of the title deeds were necessity.  I am not sure of that.  I handed it to the nearest teacher to see if it was all right, and he said to me, the Tepaou's seal is wanting.  I returned the deed to Mr. Maclean saying it was informal.  Mr. Maclean then w rote asking what the informality was.  I wrote back saying the Tepaou's seal was wanting.  I subsequently sent for the Tepaou to find pout why he would not seal it, and then found that the land had been sold to Mr. Cushny.  I then informed Mr. Maclean of it.

Examined by Consul. - The Taoutae wrote a despatch about the case; he said a petition had been sent him, he quoted it.  I forget the despatch now.  I think the Taoutae asked to have the deed cancelled as irregular.  I have never asked for the original title deeds.  The Tepaou's stamp is sufficient.  There is generally the seal of one Tepaou.  I have seen one with two seals.  I have seen one case in which the Government Tax collector put his seal.  When Woo-lien-tang came he said he would not put his seal as the land was sold to Mr. Cushny.  The seal on the deed of sale was there when it was brought to the Consulate.

Examined by Defendant. - I know that Chang-tsui-tang is in gaol on one plaint from this Consulate; Mr. Meadows gave him a paper to get land for Mr. Carter, which paper he used in other cases - this paper has not been recovered.

Examined by Plaintiff. - There are two Tepaou-ships in the British Consulate, one does not sign the deeds issued in the other's land.  In passing title deeds of sale it is my duty to see the Tepaou's seal; when satisfied with that the deed is sent to the Taoutae with whom the responsibility lies.  I fill in the forms on the title deed from thr bill of sale.  We have received notice of application for land from other Consuls but have not sent any.

I am not aware of Mr. Major having lost his land from an application to the U.S. Consul.  I don't remember any question having previously arisen as to two Englishmen having the same lot.  There was one case of an American getting land because the Englishman had not had it registered.  Since this case has been in court I have opened a book for the registration of applications to purchase; have searched without success for any similar book among the records of the Consulate.

Court adjourned re-opened 11th May.

WANGH-TSUNG-HEWEN, gatekeeper of the Hing-ngau Guild, being duly warned, in answer to Consul, states: - The Tepaou came to my place in the ninth month of last year, about the beginning of the month, and I took him (Woo-lien-tang) to the several hongs interested in the Guild.  Nothing was settled then.  2nd month they came to a settlement; they met myself, the Tepaou (Woo-lien-tang), and four other hongs, and arranged for Tls. 2,700.  The four Hing-men are Fang-teen-ho, Loo-yuen-shing, and Chang-fang-jin.  There was discussion as to the responsibility of receiving the money; they thought they had no right to take it, it being public money.  Chaou (1st witness) then came forward and offered to receive the money, and name the shares also.  After that I don't know what the result was.  I had nothing to do with it.  I don't know whether Chaou received the money or not.  The Teen-ho is a shop opened by two persons, one is Fang and the other Chwang.  I saw Fang myself then, he was one of the four.  The Chwan-teen-ho is not here; he went away the 7th month of last year.  Fang-teen-ho is now outside the Court room door.  There was no foreigner present at all.  There was one foreigner came twice to see the land.  I cannot recognize him; he came once (9th month) last year, and once this year.  Only one came.  When the Tepaou came about the land, he mentioned that it was for the Chang-li hong.  I saw no deed of any kind entered into; I saw no one else make out any deed, I have not heard of any deeds being made out.  None besides the Tepaou came to me about this land.  Chang-tsui-tung never came; I am sure he never came for I am always there, and it would have been my duty to take him to the other hongs.  The only man that ever talked about it is the Tepaou, Woo-lien-tang.  The land had original title deeds, I think from three to five.  The deeds are generally carved on a stone, but there was a fire which destroyed the stone.  The deeds were sent in to the authorities.  I don't know where they are, I have not seen them for many years.  I have been three years in the present guild and twenty in the other guild on the French Concession.  I can't say I ever saw these deeds; I have seen the box in which they were kept, and I have seen the copies on stone.  I never gave Woo-lien-tang any deed of sale or any paper at all.  These hongs take it in turn to look after the affairs of the guild.  Teen-ho's incumbency reached from the 10th month of last year to the 10th month of this year.  He has not been a firm long and therefore would not receive the money.  The only deed I saw was a draft got by the Tepaou, who wanted Fang-teen-ho to write it.  Fang dared not do it, and said he would take it to the other men and give an answer in two days.  No answer ever came.  The 2nd day I was told that the only man with authority to sell the land was the 1st witness Chaou.  Fang-teen-ho did not tell me that it was Sen-fang-choo.  I don't remember the particular words written one.  I took it and gave it to Teen [words missing.]

Examined by Defendant. - I did accompany a foreigner to put down the boundary stones about the beginning of April; the Tepaou told me to go.  I told Fang-choo and went.

Examined by Consul. - I did not get any deed from Fang-teen-ho and give to the Tepaou.  I don't know who wrote the deed in Court.

Woo-lien-tang being confronted with the witness persisted in his statement that the wiriness had given him the deed.  He had also measured the land, taken him to the other hong, and finally given him (Woo-lien-tang) the deed, and says: - That the witness Wang lies; that he lies because he is afraid of being punished for giving it to him.

CHUEN-SHE-SAU. - (Persists that he could not write) I am a Chinchu man and can't speak the dialect.  My name is not Fang.  (The last witness Wang here comes forward and says that Chuen's name is Fang.) My name is Fang.  I said my name was Chuen because he is the responsible man in the shop and I am his partner.  There was another Fang in the shop who has gone away.  The shop has a share in the guild and I as partner have a share.  I look after all the decoration of the guild at festival times.  I have no authority selling land.  The only persons having authority are the 1st and 2nd witnesses and the 4 hongs.  Eighth month of last year there was an enquiry about the land, and Fang-choo came and told me so - it was the land at the back of the guild, but I don't know who wanted to buy it.  No price was mentioned by Fang-choo.  There was some talk of 3,000 Taels, the other hongs would not have it.  I never saw the other hong about it.  Wang did come to me about the land; they all came to my house to negotiate, and they agreed that the 1st witness Chaou was to be the judge.  I never saw any deed.  The Tepaou never sent me my deed.  I never gave Wang my deed.

(Woo-lien-tang here is called, and states positively that he did send the witness a draft, and that the man Wang comes forward and says that he himself gave witness the draft.  Woo-lien-tang states that he received it back by Wang.)

When the hong negotiated at my house they agreed to 8,000 and odd Taels.  I afterwards heard from Fang-choo that Mr. Maclean had settled for that.  I don't know whether any deed of sale was made out, but old title deeds were given I believe to Mr. Maclean.  I did hear of money being received by Fang-choo and Suo-yuen-ping, but I don't know how much.  There was negotiating with Mr. Cushny, but it was not brought to a point before settlement with Mr. Maclean.

(Witness keeps looking round at the plaintiffs, evidently being afraid to speak out in their presence, but being Plaintiffs they cannot be requested to leave.)

The deed in Court is a false one - i.e., the one that was given to Mr. Cushny.  I have never seen it.  Woo-lien-tang wrote the deed now in Court (Cushny's).  The hongs did meet at my house and the Tepaou produced a draft.  An answer was to be given the next day, when old Chaou came forward and said the land had been already sold to Mr. Maclean.  It was a long time ago that this consultation took [place.  I don't know when it was.  The Tepaou did come to me once and said I have settled that land for you.  I said, I am alone and cannot agree to the sale.  The Tepaou did produce a deed of sale; we all saw it, but Chaou objected to it.  I know it is false because I don't know of any one having written it.  The deed shown to us had all four names on it. - Teu-fang-chun, Soo-yeu-pun, Teen-ho, and Chang-fang-jin.  The deed was not changed for another.  It was afterwards taken away by Woo-lien-tang.  It was not signed.  I have not seen any deed with one name.  I don't know Chang-tsui-tung, he has not been in my shop.

Examined by Defendant. - I have not received any money and did not give the deed to the Tepaou.  I don't know whose signature is on it.  I don't know that Mr. Cushny's name is on the deed of sale.  I have not been to Mr. Cushny's.  There is money due on the land.  I don't know who bought it.  I never signed any deed of sale.  I am the yearly secretary this year.  Fang-choo is the manager.

CHAOU is here called and says: - That the witness's name is Fang-shi-san-yuen of Teen-ho shop.  The man I meant by Fang-teen-ho is a different Fang, he went away.

WOO-LIEN-TANG here states: - That Wang did give him the deed of sale now in the Consulate.

(Witness continued) I cannot write, I can only make a mark.

Defendant read his statement of the case after the evidence and handed it in.

The hand-writing of the Tepaou was here produced and disagreed entirely with that on the deed of sale in the Consulate.

JUDGMENT.

The Court is unanimously of opinion that the title deed held by Defendant is good in itself and has been legitimately and formally procured.

(Sighed) W. H. MEDHURST, Consul.

THOMAS MONCRIEFF, R. J. ASHTON, THOMAS ROTHWELL, A. J. HOW, Assessors.

The DEFENDANT after premising that the very contradictory and confused evidence produced in this case as to the bona fide proprietorship of the land only proves the wisdom of the framers of the Regulations in having placed on the Taoutae the entire responsibility of ascertaining and defining the real proprietorship in the event of a sale to a foreigner - states:- The plaint against me being on a criminal summons hearing, that I have obtained a foreign title-deed for certain lands under a fictitious purchase, thus accusing me of fraudulent dealing, I claim that the suit be dismissed on the ground that the charge is not proved.

If, however, the Court elect to go further into the question I submit for their consideration:-

1st. That my title deed is good ,and however obtained,entitles me to the land by the Land Regulations, Nos. 11 and 111 of which having described all inquiries as preliminaries to the final settlement and title deeds.  No. VIII expressly lays down without reservation that "the interest in a lot shall always be held in Law and Equity to reside in that person in whose name the Title of Record appears."  The word "always" barring any exception, on account of fraud or on any other ground, and the words Law\ and Equity shewing that the right conferred is good against both claims for damage in money, and for possession of the land.

2nd. That my right to possess the land is affirmed also by English law, which lays down as an invaluable principle, that "a bona fide purchaser, for a valuable consideration, without notice of and no party to a fraud shall not be affected in Equity," and as the Plaintiffs have not connected me in any way with my fraud, if any have occurred, they cannot disturb my possession.

3rd. That supposing a fraud and consequent loss to the Plaintiffs, proved, any claim in law for money damages would lie not against me, but against those whose neglect or fraud caused [line missing.]

4th. That the [line missing, crease] were aware of the land being offered to me, and permitted me to buy it, without objecting or giving notice of the rights which they now claim; and that, therefore, I would have the right to hold my purchase against them, without an English title deed at all, on the first agreement to sell, even if they proved their sole right and successfully disowned their agent.

5th. That the plaintiffs' evidence and that of Chang-tsui-tung is so unreliable, that no proof has been given of anything, but great negligence on the part of Woo-lien-tang, and that it is still liable to be inferred that the guild agreed to the sale to me, committing the trouble of conveying it to Fong-teen-ho as manager for the year, and thereafter preferring Mr. Maclean's terms to mine, were easily persuaded to sell again to him.

6th.  That if my present possession were proved illegal, I have still as first applicant the right to purchase the land, Mr. Maclean's negotiations giving him no claim, inasmuch as it is only through his contempt of the Land regulation s, that they have reached their present stage.  A proper observance of these would have led to his receiving notice of my previous application; and if I were to withdraw my claim to purchase, justice would still require that Mr. Maclean should have no priority over the four gentlemen who withdrew their inquiries after my application, in deference to the Regulations.  To suppose it otherwise would be to make Mr. Maclean's neglect of Regulations the very means of giving him a priority of right to their benefits, over those who observed them.

Regarding the first and second considerations \submitted to the Court as sufficient defence, I need not enter farther into the question.

SHANGHAE, 24th May, 1861.

  1. H. MEDHURST,
  2.  H.B.M. Consul, Shanghai.

  3. SIR, - We, the undersigned, FANG-CHOO-HO, CHAOU-SOO-DAN, and WANG-YIH-YUEN, Plaintiffs v. ALEXANDER CUSHNY, Esq., Defendant, in the case of a disputed purchase of land. As heard at your Court on the 28th and 29th days of April, and 6th and 11th instant, beg to inform, you of our wish to appeal to Her Majesty's Chief Superintendent of Trade in China,. Against the decision given by you on the last-named day, basing such appeal on the following grounds:-
  4. 1st. - That the judgment of the Court is wrong in finding "that the title deed held by the Defendant is good in itself," as the Land regulations only sanction a title deed procured after certain preliminaries have been gone through, the following of which have not been complied with
  5. Section 2 requires that the intending purchaser "shall settle with the CHINESE PROPRIETORS the price and conditions of Sale," and should lodge with the Consul "the Chinese Proprietors' agreement or deed of sale in duplicate accompanied by a plan."

    The Defendant has never done this, only lodging as deed of sale from a man who is proved not to be the Chinese Proprietor, and it is clearly proved that he has never settled the price with the parties proved and acknowledged by the Taoutae to be the "Chinese Proprietors."

  6. Section 2 also requires that these deeds of sale (from the Chinese Proprietor) should be forwarded to the Intendant of Circuit, while the Consulate Executive have only forwarded a Printed form with the blanks filled up at his office, purporting the sale to be made by a man proved not to be the owner, and who, in the evidence, declares his incapacity.

    Section 3 provides that the Intendant shall only issue his title deed on "the deeds of Agreement or Sale aforesaid (from the Chinese proprietor) having been completed and the purchase money paid."

  7. Now the deeds required from the Proprietor (so far as Mr. Cushny is concerned) are not yet completed and the purchase money has not yet been paid; but, on the contrary, the orders on Defendant's Comprador are returned to him by the very man employed to conduct the sale.  As the title deed is issued by the Defendant only on "official report of this being done," it follows that a title deed issued without the due report cannot be valid under regulations.  It cannot be a good title deed either if the effect of it be to deprive the Plaintiffs of the legal estate in, and ownership of, their land, as in all Courts dispensing English law a contract founded on fraud can never be carried out or enforced.
  8. 2ndly. the judgment is wrong also in finding that the deed "has been legitimately and formally procured."  This ground of appeal is supported by the same breach of Land Regulations as are urged in support of the first ground of appeal.
  9. 3rdly.  - That the judgment ought to be reversed, on the ground that the sale is not yet completed within the requirements of the Land regulations, the purchase money not having been paid; and it is still open to the Intendant to cancel the matter as far as it may have gone, when he finds that so far from "the sale being regular," in accordance with requirements of Section 3 of regulations, the sale is simply nugatory and useless, as being between parties, one of whom has no power to contract or no interests to dispose of in the land.  Also, on the ground that the Consul has been officially informed by the Intendant (the proper officer) on the part of the Chinese Government, that the sale is illegal, and that the recognition of the deed by him has been obtained by fraud and misrepresentation of the gravest kind.

    That this is not a question of whether Mr. Cushny had not the first right to buy from the Plaintiffs the land in question, but simply whether the foreign deed at present in existence can be a good one, based upon a deed of sale from a man having no estate in the land, and protested against by the Chinese authorities as illegal and having been obtained by fraud.

    We have the honour to be, &c. GANG-CHOO-HO, CHAOU-SOO-SAN. WANG-YIH-YUEN.

    Source:The North-China Herald, 8 June 1861

  10. ERRATUM.

In publishing the Consular Court Case of Fang-Choo-Ho and others versus Cushny in our last issue, the Judgment should have been inserted after the Defence and not before, where it was inadvertently placed.

Source:The North-China Herald, 7 September 1861

APPEAL CASE.

IN THE CAUSE OF:

FANG-CHOO-HO, CHAOU-SOO-SAN, WANG-YIH-YUEN v. A. CUSHNY.

The Hon'ble F. W. A. BRUCE, C.B., H.M.'s Minister Plenipotentiary, &c., Peking.

No. 88.

BRITISH CONSULATE,

SHANGHAI, 17th June 1861.

SIR, - The Plaintiffs in this case having appealed against the decision of the Consular Court, I beg now to submit my statement of the grounds on which that decision was formed, together with all the documents connected with the cause, namely:-

    1. The Minutes of Proceedings.
    2. The Plaintiffs'' Appeal.
    3. The Defendant's Counter-statement.
  1. The documents above described having been put into print by the parties interested, I forward them in that shape as more easily readable
  2. Such a number of Chinese appeared in the course of the enquiry, and as they are so variously designated in the minutes and other documents, I will, for the sake of perspicuity and easy reference, give a list of the principal actors in the dispute, with all their several aliases.

    Plaintiffs.

    1st. - CHAOU-SOON-SAN, the first wintriness; also called Chaou.

  3. 2nd. - FANG-CHOO-HO, the second witness; also called Fong-sze-ho, Wang-fei-tsuy, Soo-fang-tso, Fang-tsuy, Sen-fang-choo, Choo-fong-choo.
  4. 3rd. - WANG-YIH-YUEN, the third witness; also called Leu-sin.

    Defendant.

    ALEXANDER CUSHNY; also called Chang-le.

    Vendor to Defendant.

  5. CHUEN-SHE-SHAN, the 12th witness; also called Fang-teen-ho, Fang-ting-ho, Fang, Fang-she-san-yuen, Fung-teeng-ho, Teen-ho.

    Purchaser from Plaintiffs.

  6. L. MACLEAN; also called Teen-chang.
  7. Tepaou of the District.
  8. WOO-PING-CHUEN; the 7th witness; also called Woo-leen-tang, Oong-ling-tang.
  9. Ex-Tepaou of the District.
  10. CHANG-TSUY-TANG, the 9th witness; also called Chang-tsui-tang, Chong-tsui-tong.
  11. Doorkeeper of the Guild.
  12. WANG-THUNG-HEUEN, the 11th witness; also called Wang.

The case was one of alleged fictitious sale of a piece of land belonging to a Chinese Guild to the Defendant, the Plaintiffs claiming to be managers of the guild, ands as such to have sold the land to a third party, Mr. J. L. Maclean.

There was no doubt as to the proprietorship of the land.  It has long been known as the property of the Hing-wha Guild, a Fuh-keen corporation, and the plaintiffs were doubtless some of the managers of the Guild or more or less connected with its affairs.  Their object was to prove that an unauthorized sale of Guild property had been made to the Defendant, so as to leave them free to complete their sale to Mr. Maclean; they endeavoured to show that there was no such person as Teen-ho, the vendor to the defendant, in Shanghai at the date of the defendant's purchase, and that when Teen-ho was at Shanghai he was not a manager of the Guild.  But the evidence before the Court did not at all support their position.

On the contrary, taking it as a whole, - that is, duly considering the suggestive falsehoods told by the witnesses when within the limit of their prepared story; the palpable untruths elicited when they got beyond this limit; the difficulty found in procuring some witnesses whose depositions were material to the point at issue; and the tell-tale demeanor of those witnesses, - it was of such a nature as to prove satisfactorily to the Court that Teen-ho did exist; that he made a sale to the Defendant; that when he did so, he was a manager of the Guild; that the other managers (the Plaintiffs) were more or less a party to his negotiations; and that his sale was the earlier one in point of date.

Assuming that the Court was right in coming to these conclusions on the evidence before them, the next point to be considered was, whether the sale by Teen-ho, with the privity of the plaintiffs, should be made to yield to a sale by the latter, because they produced the original title deeds of the land, and because Teen-ho repudiated his own sale.  Teen-ho's attendance was procured with such difficulty, his evidence presented such a tissue of unmistakable prevarications, and his demeanor under examination showed so evidently that he was speaking under intimidation, that the effect of his appearance on the Court was rather to induce a belief that he did make the sale to the Defendant with the knowledge of the Plaintiffs, and that he and they were leagued together to repudiate it, in order to secure the larger our chase money payable by Mr. Maclean.  His repudiation, therefore, did not amount to much in favor of the prosecution.

The value of the original title deeds in land transactions between Chinese and Foreigners is a question which can only be settled by reference to the Shanghai Land Regulations, a copy of which I enclose.  In these the process to be observed in procuring land is clearly defined, but no provision is made for the production by the purchaser of original title deeds at the time of report for registration.  The only documents required to be shown at the Consular Office are the bill of sale in duplicate and a plan of the ground, and these papers have to be transmitted by the Consul to the Taoutai, with whom lies the onus of examining into the history of the transaction before confirming it by his Official seal, and allowing the purchased money to be paid.  The object the framers of the code had in not making it obligatory on the purchaser to bring with him the original deeds when presenting the bill of sale, was, I presume, to remove from him or his Consul the obligation to establish the proprietorship of the land; and those who know the duplicity of the Chinese character, and the difficulty of discovering the validity of a Chinese legal document, can well appreciate the wisdom of this precaution. 

The Defendant in his purchase from Teen-ho through the Tepaou, carefully pursued the process laid down, in so far as it has been established by subsequent practice in the Consul's and Taoutai's Offices.  Mr. Maclean, on the other hand, in his purchase from the plaintiffs failed to do this; and assuming as the Court did, that the title deeds were the property of all the managers, they had no alternative but to declare in favor of that sale in which the proper formalities had been attended to.  The Taoutai, it is true, applied for leave to cancel his seal to the Defendant'[s deed; but he did so at the simple request of the Plaintiffs, and not upon such a minute investigation into the merits of the case as would have justified the Court in accepting his mere opinion as of any worth.

The above were the grounds on which the Court decided that the Defendant procured his land from a person or persons who had a right to sell it, and that the deed he obtained in confirmation of the purchase had a validity which could not be questioned.  The plaintiffs in their appeal confirm this finding as unwarranted by the facts.  They state (see 1st and 2nd grounds) that the Defendant had not gone through all the preliminaries laid down by the Land Regulations.  To this I reply that Teen-ho, by his own admission, had like themselves a voice in the disposal of the property, that he confessed to having been consulted by the Plaintiffs as to the sale of it to the Defendant; and that their sale to Mr. Maclean was marked by even less regard to the Regulations then the one they desire to ignore.  If, therefore, the Court be borne out in their opinion that the transaction on the part of Teen-ho amounted to a sale, it certain had the advantages of the transaction for which the Plaintiffs claim priority in the matter of attention to prescribed formalities.

The Plaintiffs also declare (see 3rd ground) that the purchase money had not been paid; but this objection cannot stand, for the Defendant paid for his purchase in Compradore's orders, the usual mode of payment in Shanghai, and one which is sufficiently definite to enable the payee to recover in the event of a refusal to cash the order when presented.  The Defendant states (see his evidence, 13th line from the commencement) that he paid two orders, and was to have paid the remainder when some graves were removed; but accompanying his counter-statement he has sent me an official letter declaring that that sentence must have been wrongly reported, as he did not intend to convey such a meaning.  The sentence he explains, should bread thus: "I have paid orders, one convertible into cash at once, the other to be cashed when the graves are removed," and I believe this was the real state of the case.

In conclusion I may observe that the trial of the cause took up four days, during which four assessors and myself gave its our most patient and careful attention.  The evidence was most confused and contradictory, so much so, that, as I have said, we had to form our conclusions as much from the falsehood as from the truth elicited; and I can scarcely think that we could all have fallen so unanimously upon the same verdict, unless there had been good foundation for our convictions as to the merits of the case.

I have to request that you will decide on this appeal at as early a date as you conveniently can, as other transductions have been entered upon in connection with the property in dispute, and their validity will depend on the judgment to be decreed.  I have the honor, &c.,

W. H. MEDHURST, Consul.

JUDGMENT IN THE CAUSE:

FANG-CHOO-HO, CHAOU-SOO-SAN, WANG-YIH-YUEN v. A. CUSHNY.

I have read and considered attentively the papers in this cause, together with the Plaintiffs' statement of the ground of appeal and the counter-statement of the Defendant.

The evidence fails entirely in substantiating the charge of fraud against the Defendant, Mr. Cushny; while, on the other hand, the prevarications of the Plaintiffs, and of their witnesses, and their efforts first to prevent the examination of Fang-teen-ho, and then to intimidate him, are such bare-faced attempts to pervert the course of justice, as to deprive their statements of all credit.

The Defendant is provide to have applied in the manner prescribed by the Land Regulations for the piece of groaned, and to have negotiated the purchase through the Te-paou of the district, with a person whose position as manager id established by the evidence.  It is further proved, that the other managers (the Plaintiffs) had knowledge of these negotiations.

The deed of sale was duly transmitted to the Consulate by which the usual application was made to the Taou-tai, who by his official seal, confirmed the transaction and recognized the Defendant as Purchaser.

As it is not customary to require possession of the original title-deeds, I am of opinion that their absence does not invalidate the Defendant's title.

I therefore confirm the decision of the Consular Court in favor of the Defendant, with the costs of the appeal.

I have only to observe, that this case proves the necessity of conforming to the course pointed out by the Land Regulations in purchasing land.

FREDERICK W. AS. BRUCE, PEKING, 16th August, 1861.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School