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Colonial Cases

Tai Wan Wa and Sun Ping San v. Adamson, Bell and Co., 1884

[sale of goods]

Tai Wan Wa and Sun Ping San v. Adamson, Bell and Co.


Supreme Court for China and Japan

Rennie CJ, 23 September 1884

Source: North China Herald, 26 September 1884


LAW REPORTS.
IN H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.
Shanghai, 23rd Sept., 1884
Before Sir Richard Temple Rennie, Kt., Chief Justice.
TAI WAN WA & SUN PING SAN v. ADAMSON, BELL & Co.
  The hearing of this case was opened at 10 a.m.
  Messrs. Drummond & Latham appeared for the plaintiffs.
  Mr. R. E. Wainewright appeared for the defendants.
  The pleadings were as follows:-
  The petition of the above-named Plaintiffs shows as follows:-
- The Plaintiffs are Chinese subjects residing in Shanghai and are Silk merchants.
- The defendants are an English firm of merchants carrying on business in Shanghai.
- On the 18th day of June, 1884, the Plaintiffs, by their broker, Yung Ta Shing, agreed to sell to the defendants, and the defendants agreed to buy from the plaintiffs, thirty bales of new silk, as follows: - 20 bales Gold Kelin chop at Tls. 326.25 per picul; 10 bales Choz Kelin chop at Tls. 316.25 per picul.
- The plaintiffs have always been ready and willing to deliver the said Silk to the defendants, and all conditions were fulfilled and all things happened and all times elapsed necessary to entitle the plaintiffs to have delivery taken by the defendants of he said silk and to receive payment thereof.
- The defendants have refused to take delivery of and pay for the said silk or any part thereof.
  The plaintiffs claim
- That the Defendants may be ordered to take delivery of and pay for the said silk at the rate aforesaid.
- That in the alternative the defendants may be ordered to pay to the plaintiffs the difference between the contract price of the said silk and the market price thereof on the day on which the defendants refused to take delivery thereof, with interest thereon at the rate of eight per cent per annum until payment.
- That the plaintiffs may have such other further relief as the nature of the case may require.
  The answer of the above-named defendants to the petition of the above-named plaintiffs:-
The defendants admit the truth of the allegations contained in the 1st and 2nd paragraph of the petition.
- With reference to the 3rd paragraph of the petition the defendants say that they (n)ever entered into any contract to buy from the plaintiffs or any other person or persons the silk mentioned in the petition or any silk whatever; but they admit that Ying Ta Shing, mentioned in the petition, sent thirty bales of silk to their place of business for examination, and they say that afterwards at their request the said Yung Ta Shing took the  said silk away.
- Save as aforesaid, the defendants deny all the allegations in the petition.
  Mr. Drummond said the pleadings were very brief, and he did not think it was necessary to read them.
  His Honour said it w impossible for him to gather from the petition and answer what were the real issues.  The only question raised at present, he understood, was - Contract or no contract? He would be glad to know whether any other points were to be raised.
  Mr. Wainewright said no.   It was a mere question of whether there was a contract or not.
  Mr. Drummond said he had simply to point out that the petition stated that the plaintiffs sold the defendants thirty bales of silk on certain terms.  The plaintiffs stated in their answer, simply that they never agreed to buy from the defendants, and therefore, he submitted, the sole issue that could be tried between the partied on the pleadings must be based on a conflict of evidence as to what occurred between the plaintiffs and the defendants, or the defendant's agents,  when the contract was settled.  That was a clear and simple issue, and he would produce evidence to show that the sake of the silk by the plaintiffs to the defendants was done in exactly the same manner as had been the custom in similar sales for five-and-twenty years - they had one witness who would go back as far as that - and probably from the commencement of foreign merchants doing business in Shanghai.  The plaintiffs alleged that the defendants, having purchased these thirty bales of silk from them, as they were bound to do, and refused to pay for them, in consequence of which the plaintiff had lost the difference between the market value on the day on which the contract as entered into between them, and the market value on the day on which the defendants notified the plaintiffs that they would not take it.  There was a considerable fall in the market between those dates, and the plaintiffs were entitled to recover damages to that extent.  There had been a further fall since, but that the plaintiffs did not feel justified in claiming.  There were other cases of a similar nature against the defendants, but it was not necessary for him to go into these.  The only case the Court had to deal with was that before it. He submitted that the only question that could be entered into in this case was whether there was a contract or not; if any other defence was intended to be raised by the defendants, whether technical or otherwise, it should have been put in the answer, or notice of it given to the plaintiffs.
  His Lordship said he understood Mr. Wainewright to say that the defence was solely that there was no contract.
  Mr. Wainewright said his contention was that there was no contract under the 17th Section of the Statute of Frauds.  There had been no satisfaction of any of the conditions prescribed by that statute.
  His Lordship thought if that was Mr. Wainewright's contention, he did not think the answer stated the defence properly.
  Mr. Wainewright thought it was not necessary to plead the statute law of England.
  His Lordship said the answer should at least state that there was not contract "binding in law."
  Mr. Wainewright contended that a contract which was not binding in law was no contract at all.  "No contract" of course meant "no legal contract."
  His Lordship said the Court was entitled to have a fair statement of the defence which was to be set up.  But it had been quite impossible for him to gather from the defendants' answer what the defence was; it had been impossible for him to imagine that the Statute of Frauds was to be raised.  The answer only said that there was no contract. He did not mean that the defendants could not raise the defence on the pleadings, but if the plaintiffs said they had been taken by surprise he should be prepared to consider it.
  Mr. Wainewright said as a matter of fact he did not think they could be surprised.
  Mr. Drummond said he could show that the Statute of Frauds must be distinctly pleaded.  He produced authorities to this effect.
  Mr. Wainewright admitted that that was so according to the rules in force in England, but apprehended that it was not necessary under the rules of the Court.
  Mr. Drummond said the rules of this Court were not quite so explicit, but under the 47th of the Rules of the Supreme Court, under the Order in Council of 1865, he contended that the Statute of Frauds ought to have been pleaded in the answer.
  His Lordship was clearly of opinion that it ought to have been pleaded.  He had not the slightest doubt about it.
  Mr. Wanewright said in that case he must amend the answer, though he still submitted hat it was unnecessary.
  Mr. Drummond asked that if the answer was to be amended, an adjournment might be granted, and the plaintiffs allowed the costs of this day's hearing.  The alteration would raise a very important question of law, and he would require time to go into it.  He had never thought it possible that such a defence would be raised.  It appeared to him too monstrous to suppose that that could be done by any respectable English firm in Shanghai.  But if such a defence were raised he should require time to meet it, and he therefore asked for an adjournment and the costs of this day's hearing.
  Mr. Wainewright said he would not follow his learned through his denunciations of him, or anything else.
  Mr. Drummond denied having uttered any denunciations of Mr. Wainewright.
  Mr. Wainewright said he meant as to its being too monstrous for a respectable firm to make such a defence.  He would not go into that; but he would state that he had twice mentioned to his learned friend that he was going to raise this question.
  Mr. Drummond said Mr. Wainewright had not mentioned it to him.
  Mr. Wainewright said he had twice mentioned it to Mr. Latham.
  Mr. Drummond said Mr. Wainewright's own clients had told him that they did not intend to do anything of the sort - that it was mere layers' talk.
  Mr. Wainrwright said he must deny that.  Some of his client's coolies might have said so, but his clients could not have said so.  He proposed to amend the petition by inserting after the words "no contract," in the second paragraph of the answer, the words, "valid under the Statute of Frauds."  He could not, however, see how his learned friend could be taken by surprise.  They must have known whether or not they had a valid contract.  "Contract," of course meant "legal contract." There was no other kind of contract.
  His Lordship did not think that was so.  The wording of the 17th Clause of the Stature of Frauds implied that there were contracts which could not be enforced by law.
  Mr. Wainewright said his evidence, he hoped, would show that there was no contract at all, either verbal or legal or illegal.  
  After some further argument,
  Mr. Wainewright said he did not acquiesce in anything his learned friend had said, but he did not see any use in carrying the argument any further.
  The case was adjourned for one week, and the costs of the day's hearing were granted to the plaintiffs.
  His Lordship - If I may venture to give a piece of advice I should say - honesty in the pleadings above everything; and so long as I sit here any concealment, I think,  will recoil upon its authors.  I shall always enquire what the real issues are beforehand; and I have express power to settle such issues when I please.
  Mr. Wainewright - I do not wish to conceal anything.  I do not wish to take my friends by surprise in any way whatever.  It never occurred to me that it was necessary to tell them anything about the law of contracts - I thought they knew all about it.
  His Lordship - Putting aside your adversaries, I shall always get what information I can as to what the issues are, and if I do not gather from the petition and answer what are the points to be raised I shall always enquire at the commencement of the case.  It will save a great deal of time and trouble, because if I do not know what the issues are I cannot tell whether the line taken by counsel in opening the case is material or not, or whether the evidence is material or not.  I must have it disclosed, and I have a perfect means to get at you by the settlement of issues beforehand.
  Mr. Wainwright - Oh, yes, my Lord, but I have got nothing to be "got at" about.
  The Court then rose.

North China Herald, 8 October 1884
LAW REPORTS.
IN H.B.M.'s SUPREMECOURT FOR CHINA AND JAPAN.
Before Sir Richard Temple Rennie, Kt., Chief Justice.
TAI WAN WA & SHUN PING SAN v. ADAMSON, BELL & Co.
  The hearing of this case was resumed from the 23rd inst., when it was adjourned for amendment of the answer to the petition.
  Messrs. W. V. Drummond and T. Latham appeared for the plaintiffs and Mr. R. E. Wainewright for the defendants.
  Mr. Drummond pointed out that the amended answer which had been filed was slightly different from the answer as Mr. Wainewright had proposed at the last hearing to amend it.  The second paragraph now read that there was no contract "fulfilling the conditions of the Statute of Frauds," whole Mr. Wainewrighht had proposed to inset the words "no contract valid under the Statute of Frauds."  But Mr. Drummond supposed that there was no intention to convey any thing different.
  Mr. Wainewright - Not the slightest.  The wording as it stood was more in conformity with the Judicature Act; that was all.
  Mr. Drummond said that under the pleadings as they stood, it appeared to him that the sole issue was whether the 17th Section of the Statute of Frauds applied in this case.
  His Lordship - Is that so, Mr. Wainewright?
  Mr. Wainewright - I apprehend that is the first issue.  Assuming that the Court holds that it does apply, I apprehend that he will go on with his case.
  His Lordship - You do not deny a contract?
  Mr. Wainewright - The evidence will show that there was a conversation which probably amounted to a contract.
  His Lordship - Then there is nothing in the case except a legal question.  Why should we ho into evidence at all? Then does it not come to this, that we are having an argument upon a demurrer? I understand you (Mr. Drummond) to argue that the Statute of Frauds has no application in this case.  If you succeed in that, I apprehend that the plaintiffs would succeed.
  Mr. Wainewright - That is for my learned friend.
  Mr. Drummond - It seems to me that an agreement is admitted.
  His Honour - That is what I understand, Mr. Wainewright.
  Mr. Wainewright - Yes, my Lord.  I deny that we entered into any agreement which was binding, having regard to the Statute of Frauds.
  His Lordship - Then does it not come to this, that we are having an argument about a demurrer? I understand you (Mr. Drummond) to argue that the Stature of Frauds has no application in this case.  If you succeed in that, I apprehend that the plaintiffs would succeed.
  Mr. Wainewright - I do not admit that, because if the Statute of Frauds is held not to apply, then I take it that it is still for the court to say whether the plaintiffs have committed a breach of the contract.
  His Lordship said the pleadings said nothing about that.
  Mr. Wainewright, after some further argument, said his contention was that there was no contract valid either under the Statute of Frauds or the lex loci or the lex fori.  He admitted that this was not stated in the answer to the petition; but he said it was included in the answer as it originally stood.  He had, in compliance with his Lordship's ruling, made an amendment on the spur of the moment, which did not cover the contention that the contract was invalid apart from the Statute of Frauds; and he asked leave to further amend the answer by inserting the words "or otherwise," so that it might read that the defendants denied that there was any contract valid under the Statute of Frauds or otherwise.
  A long argument ensued between his Lordship and Mr. Wainewrght, his Lordship principally enlarging upon the point upon which he had already given his decision at the first hearing, with regard to specifically referring to the Statute of Frauds in the answer.  Finally his Lordship refused to allow the answer to be further amended.
  Mr. Drummond then proceeded to argue his case.  He said the 4th and 17th Sections of the Statute f Frauds dated back to the time of Charles II and had continued to be the law up to the present time; and they had been the subject of innumerable cases as to their exact meaning and construction; contracts falling under the 17th Section had been held to be contracts which had to be decided by the lex loci, and were valid if in accordance with the law of the place in which they were entered into and executed.  On the other hand, with regard to contracts which fell under the 4th section of the Statute of Frauds, although they might be perfectly good according to the law of the place in which they were made, action could not be brought upon them in an English Court of Law, because the words of the Section forbade it.  In other words, it was a case to be decided by the lex fori and if it did not comply with the requirements of the 4th Section, no action could be founded upon it, although it might be perfectly good in itself. The basis of this Court's jurisdiction was the Treaty of 1858, and the clauses which covered the whole matter were the 15th, 16th and 17th.
  His Lordship said, as at present advised, he did not think he had anything to do with these clauses.
  Mr. Drummond said he was coming to the Order in Council in a moment; but this Court must be presumed, he thought, to have no powers except such as were granted by the Chinese Government and accepted by the British Government.  Article XVII was as follows:
  ARTICLE XVII - A British subject, having reason to complain of a Chinese, must proceed to the Consulate, and state his grievance.  The Consul will enquire into the merits of the case, and do his utmost to arrange it amicably.  In like manner, if a Chinese have reason to complain of a British subject the Consul shall no less listen to his complaint, and endeavour to settle it in a friendly manner. If disputes take place of such a nature that the Consul cannot arrange them amicably, then he shall request the assistance of the Chinese authorities that they may together examine into the merits of the case, and decide it equitably.
  The Order in Council of 1865 was based on this treaty, and the Court was erected by virtue of, and in accordance with the provisions of this Treaty.
  His Lordship said it was impossible for him as judge to look back to what was before the Order in Council.  The authority he possessed was conferred upon him by the Order in Council, and he had simply to consider the Order in Council.  He did not consider that he had anything to do with the Treaty.  It was not for him to consider whether or not the Order in Council was in accordance with the Treaty; he had simply to consider what were the Orders in Council under which he was appointed, and abide by them.
  Mr. Drummond said that was for his Lordship to consider.  But in any case he was not going to ask his Lordship to do anything in violation of the Order in Council; but he was going to ask him to give a decision which would be consistent with both the Order in Council and the Treaty.  
  The contract in the present case was one which had to be governed by the lex loci, and the lex loci in Shanghai might be held to mean the ordinary course of trade in Shanghai, for mercantile usage was often looked at in law in this light.  In this view of the matter the trade in Shanghai, and the manner in which it as conducted, became of great importance.  If, however, it were held that the mercantile usage of Shanghai was not sufficiently settled to amount to a lex loci, then the Chinese law became the lex loci.  The Stature of Frauds therefore did not apply.
  His Lordship failed to see that there was any lex loci here at all.  He asked if the lex loci of a German was not German law, and of an American, American law, and of an Englishman, English law.
  Mr. Drummond contended that the Chinse law as the lex loci; and further argued that mercantile usage was commonly accepted in English Courts to decide cases like this.
  His Lordship doubted whether mercantile law could be proved.  He did not think it had ever been proved.
  Mr. Drummond was not aware that it ever had; but he could call a large number of witnesses - one of whom could go back for twenty-five years in his own recollection, and others for long terms.  Every one would give exactly the same evidence as to the manner in which trade in silk had been carried on within their memory between Chinese sellers and European buyers.  They would all agree that the trade had always been carried on in the same way as in this case; and yet such a defence as the Statute of Frauds had never yet been raised since Shanghai was a mercantile community.  He thought that went strongly to prove a lex loci, a law of the place.
  But if his Lordship should decide that the custom of the trade was not sufficiently established to constitute a lex loci, then the law of China was the law which would govern the validity of this contract.  The Order in Council and the jurisdiction of the Court should be exercised "as far as circumstances admit," according to English law, and he contended that one of the ruling circumstances was the Treaty.
  His Lordship repeated that he had nothing to do with the Treaty.  He held his authority under the Order in Council, and he was bound by that Order.  He had no right to see whether the Order was properly framed in accordance with the treaty.  With regard to the words as "far as circumstances admit," his Lordship quoted the opinion that this referred only to such circumstances as rendered it impossible for pure English law to be administered.  He should most decidedly administer the law according to the Order framed by her Majesty in Council under which he held his authority, even if it conflicted with the Treaty.
  Mr. Drummond repeated that the course he was arguing was consistent both with the Order in Council and the Treaty.  There was nothing in either the Treaty or the Order to say that British subjects should under no circumstances be subject to Chinese law.  The laws of China governed everyone who lived in China, except in so far as their application was limited by the Treaties.  British subjects had, for instance, to pay customs duties, land tax, and other revenue demands in accordance with Chinese law.
  His Lordship did not admit this.  Foreigners paid these duties by virtue of a contract.  He thought there was no lex loci in Shanghai.  The law in Shanghai was all personal as regarded contracts, though there might be a territorial law.
  Mr. Drummond asked why should there not be a lex lci.
  His Lordship said because all foreigners were under the law of their own countries, and Chinese were under their own laws.  There was no room for a lex loci.
  Mr. Drummond said if Shanghai had no law at all it was unique on the face of the earth.
  His Lordship - ln Shanghai, it is, in a great many respects, Mr. Drummond.
  Mr. Drummond - Yes, my Lord, but I do not think quite so far as that. - Mr. Drummond then proceeded to cite cases of contracts which were decided according to the law of the place in which the contract was made, although both parties were British subjects.
  The Court adjourned from 12 noon till 2 p.m.
  On the Court resuming,
  Mr. Drummond continued to cite cases with regard to the application of the lex loci in respect to contracts.  With regard to the administration of Chinese law in this Court, he said one of his Lordship's predecessors had administered Chinese civil law in a case in which a British subject was defendant in a British Court.  He referred to the Wu-shih-shan case.
  His Lordship said that was a very special case, elating to land.
  Mr. Drummond said they had in that case a decision of this Court that there was such a thing as lex loci in China - that there was such a thing as Chinese Civil law, and that it could be applied in a British Court by a British subject.  He then cited the more recent case of Wong Vok-tai v. Artindale, in which the Assistant Judge had said that Chinese law was the question, and that "in a question of this kind, the law of the soil was the law which applied."
  His Lordship said that was also a case relating to land.
  Mr. Drummond contended that the same principle applied also to contracts of the kind in this case, and quoted authorities in support of his contention.  He said that in the present case the defendants were trying to avoid a just liability by taking advantage of a legal technicality.
  Mr. Wainewright emphatically contradicted that statement.
  Mr. Drummond said if the plaintiffs were precluded by this technicality from proving the contract, and were also precluded from citing Chinese law, it was no use his carrying the case any further; but if the Court had any doubt about the matter, and thought it a proper matter for consideration, he thought he was entitled to continue the case and prove the mercantile custom here and the Chinese law which he submitted governed the case.  If his Lordship was distinctly of opinion that the Statute of Frauds applied he could not carry the case any further, as he admitted that he could not prove a signature to the contract under the Statute of Frauds.
His Lordship decided to hear what Mr. Wainewright had to say on the point before hearing evidence.
  Mr. Wainewright said his case was simply that his Lordship was bound by the Order in Council.  As his Lordship had said, this Court was created by the Order in Council, and his Lordship was bound to follow that Order and not to look behind it. His Lordship had read the interpretation of one of his predecessors of the words "as far as circumstances admit," and he (Mr. Wainewright) thought that was the common-sense meaning of the words.  There were certain officers and certain powers of the English law which were wanting out here, and the court had consequently in certain cases to cut a short road to carry out the meaning an object of an Act of Legislature instead of following the technical provisions.  Apart from that, he submitted that the court was bound to administer English law, and nothing but English law.  If he lex loci governed a contract between Chinese and British, it would have also have to govern a contract between Germans, Italians, Frenchmen - every nationality in Shanghai would be governed in its contracts by Chinese law, which was an absurdity.
  Then Mr. Drummond had said, granted that the Court had to administer English law, yet in cases of this kind English law would have regard to the lex loci.  But the cases which Mr. Drummond had cited none of them were applicable to the circumstances in which we were placed.  Here we were in country within a country, in a sense - all of us carried our country about with us, so to speak, so that for the purposes of the Court a contract made here was in effect a contract made in England.  If cases of contracts were to be decided by English law, they might as well have the cases determined by the Chinese Courts.
  His Lordship asked Mr. Drummond whether, in his view, the lex loci would apply were both plaintiff and defendant were British.
  Mr. Drummond said yes, if the treaty is ignored by the Court.  The treaty (17th clause) provides distinctly how cases are to be treated in which Chinese are the plaintiffs, but if the Court refuses to look at the treaty then it makes no difference whether it is a Chinese of an English plaintiff.  The cases he had already cited showed that where British subjects had made contracts with regard to properties in British colonies, in Portugal and other countries, and where the case had been in a British Court, it was the lex loci which applied.
  Mr. Wainewright submitted hat there was no lex loci at all here, and that the law to be applied depended upon the nationality of the defendant.  He referred to the Chefoo Convention as showing the intention that this Court should administer English law entirely.  With regard to the Wu-shih-shan case and the Wong Vok-tai case, they both referred to land, and there as a great distinction between land and other kinds of property.
  Then as to the Customs duties and the land tax, he denied that foreigners were subject to the Chinese in the payment of them.  It was by virtue of an agreement between the Chinese and the British Governments that British subjects were bound to pay these duties and taxes.  The Chinese Government could not impose any duties on British subjects unless they had been agreed to by the British Government; and it was by English law, and not by Chinese law that the payments were enforced against British subjects; the liability of British subjects to these payments had, in a sense, become a part of English law.
  After some further arguments,
  His Lordship said he was quite with Mr. Wainewright on this point; but if Mr. Wainewright had anything new to say he should be happy to hear him.
  Mr. Wainewright did not propose to say anything more in that case.
  His Lordship - I am quite prepared to express my opinion on this point; but the difficulty I am in is that I do not exactly see in what form to express my opinion.  You observe the answer to the petition has not been demurred to, and in point of fact this is only a point, though a very important point, which has arisen now, and an argument has been addressed to the Court upon it.  I am quite prepared to express my opinion, but I do not see my way to give any judgment.
  Mr. Wainewright - Probably if you express your opinion as to whether the Statute of Frauds applies, it will be a sufficient guidance to the parties.
  Mr. Drummond asked whether the expression of opinion was to be taken as the decision of the Court.
  His Lordship - I am prepared to state my opinion on the subject, and I shall hold accordingly; but I do not find myself in a position to give judgment at the moment.
  Mr. Wainewright - If the case goes on, of course it will be subject to your ruling on the point.
  His Lordship - I am clearly of opinion that the Statute of Frauds does apply in this case.  Taking into consideration the constitution of the Court and the instructions given in the Order in Council, I am bound to administer English law as far as possible, and I can see no hardship at all in importing English law into this case, because when a plaintiff, whether a Chinese or a foreigner, comes into this Court to obtain redress, if he can, for an alleged or actual  wring, he avails himself of every remedy which the technicalities of English law will give him, and it is only right therefore that he should be bound by the technicalities that tell against him.  If a British subject sues a Chinaman at the Mixed Court, although he has an Assessor to assist him, he is bound by Chinese law, and the case is the same in a German or any other Court, they are bound by the laws of that Court.
  I find by the instructions of the Order in Council - and a higher form of instructions I cannot have - that English law must be administered, and I find no hardship or injustice in this case in doing so. I am clearly of opinion that the Statute of Frauds applies, and must be held to bar the plaintiff's right to recover in this Court.  I can only express that opinion because there is nothing before me upon which I can give judgment.
  Mr. Drummond - I have given notice to my learned friend to produce all papers and documents relating to this contract, and I will now ask Mr. Wainewright - Have you any paper, book, or writing of any kind which the plaintiffs signed, or made in writing, or any signature whatever, in connection with this contract to buy this silk?
  Mr. Wainewright - I have nothing of the kind.
  Mr. Drummond - Then I have nothing further to say, and I do not propose to carry the case any further.
  His Lordship asked Mr. Drummond if he preferred to take a non-suit.
  Mr. Drummond left it to his Lordship.
  His Lordship - Then I shall dismiss the suit, if you can give no evidence, and shall give judgment for the defendants.
  Mr. Drummond said he had asked his learned friend if he had any writing or signatures made in this contract, and Mr. Wainewright had said there were none.  He (Mr. Drummond) had none to produce, and he could do nothing further.  As the defendants had taken advantage of this, he could not help it.
  His Lordship said in that case there would be judgment for the defendants.
  Mr. Drummond asked if costs would necessarily follow.
  Mr. Wainewright said if that question were gone into, he should have a good deal to say.  He thought it had better not be gone into.
  Mr. Drummond said it was an entirely novel point, and Chinese could not be expected to know the law.
  His Lordship said counsel were supposed to know the law.
  Mr. Drummond said he had never supposed such a point would be raised.
  His Lordship said Mr. Drummond knew a week ago that it was to be raised, and he had thought fit to go on with the case. He had received the costs of the first hearing, he had had a whole week to consider it, and the plaintiffs must pay the costs of this day's hearing.
  Judgment was accordingly entered for the defendants, with costs.

{See also Editorial comment, 'The Silk Case,' North China Herald same date.}

 

Source: North China Herald, 8 October 1884
 

THE SILK CASE.
  The case of Tai Wan-wa and another against Messrs. Adamson, Bell & Co., is the first commercial case of the kind which has been tried in the Supreme Court.  The manner in which it ended has not given great satisfaction either to the foreign commercial community or to the Chinese.
  The defendants pleaded the Stature of Frauds, and the Chief Justice, after hearing Counsel for the plaintiffs and a reply from the Counsel for the defendants, was clearly of opinion that the said Statute did apply here.  His Lordship considered that he was bound under the Order in Council to administer English law as far as possible, and that he could not go behind the Order and import into the case Chinese or any other law, or a local trade custom.  His Lordship was quite right in saying that, as Chinese avail of the technicalities of English law when it suits them to do so, they should be bound by the technicalities of the same law when these tell against them.  No trade custom in buying silk could, we are informed, be proved here to the satisfaction of a law Court, and there is an opinion of one of His Lordship's predecessors which caused the plaintiff in a shipping case to accept a nonsuit in an action in which they had attempted to prove the existence of such a custom.
  But, while the correctness of His Lordship's ruling is not impugned, and it is admitted that Chinese appealing to British law should have their cases dealt with in strict conformity to it, technicalities and all, a very general regret has been expressed among the foreign community that the case was not tried and decided upon its merits.  It may be difficult for foreigners to bear the manner in which the Chinese Guilds interfere in disputes between natives and foreigners.  But appealing in a case like this to a Statute which requires contracts to be made in writing in order to be binding, after it had been a pretty general practice in this port, since it was opened, to do business by words of mouth, is not the way to make the Chinese Guilds more reasonable.  Rather, it will make them form an opinion of foreign merchants and foreign law which all who desire that business may go on pleasantly will regret.  Moreover, this case is pretty certain to be used by the Chinese Officials at Peking as one which shows how the interests of the countrymen are set aside when they conflict with the interests of foreigners. This is what has been done in regard to former cases, where Chinese have considered themselves ill-treated.

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