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Colonial Cases

Hung Chee-Foo v. Ure, 1887

[trespass to land]

Hung Chee-Foo v. Ure

Supreme Court for China and Japan
Jamieson AAJ, 6 July 1887
Source: North China Herald, 8 July 1887

LAW REPORTS.
H.B.M.'s SUPREME COURT.
Shanghai, 6th July 1887
Before Geo. Jamieson, Esq., Acting Assistant judge.
HUNG CHEE-FOO v. C. W. URE.
  This was an action for trespass.
  Mr. E. Robinson appeared for the plaintiff, on behalf of M. A. Robinson.
  Mr. Drummond for the defendant.
  It appeared from the petition that since the year 1875 the plaintiff has been owner of certain land and five houses thereon in the Fokien Road partly at the rear of certain other houses also belonging to the plaintiff, which are again at the rear of certain other land and houses thereon formerly the property of one Chang Yuen-sang.  These latter houses in 1885 became the property of one Chang Mei-sin who sold them to the defendant in the same year.  The entire number of the houses mentioned so far was twelve, and they were erected by the plaintiff and Chang Yuen-sang respectively in the year 1875. Four of the houses erected by and belonging to the plaintiff fronted on the Fokien Road, and two erected and owned by the plaintiff were in a similar position.
  At the rear of these six houses the plaintiff afterwards erected five other houses, which are still his  property, and Chang Yuen-sang erected one house to the rear of his four other houses fronting on the Fokien Road, making in all six houses in the rear of the six houses fronting on the Fokien Road.
  Between all the six houses fronting as aforesaid on the Fokien Road and the six houses at the rear thereof a passageway, five feet six inches wide, was by verbal agreement and actual consent between the plaintiff and Chang Yuen-sang left by them as a thoroughfare for the use of the occupiers of the twelve houses above described, and to afford access to other houses belonging to the plaintiff, and situate beyond and to the  north of the said four houses fronting Fokien Road, and the one house in the rear thereof formerly belonging to Chang Yuen-sang, and which passage was in fact from the southern-most of these said twelve houses northward to the end of the block. The said passage could not be altered without the consent of the plaintiff.
  At the same time that the twelve houses mentioned were erected, another passage of the same width, viz., 5 ft. 6 in., was by like verbal agreement made about the middle of four houses belonging to Chang Yuen-sang which fronted on to Fokien Road, and which lead from Fokien Road into the other passageway.  By means of these two passageways described, the plaintiff had access from Fokien Road to all his houses mentioned and Chang Yuen-sang had also similar access from Fokien Road to the rear of the houses.
  At the latter end of the year 1885 the defendant became the owner of the land and houses formerly the property of Chang Yuen-sang, and the passages then existed.  It is for wrongful encroachment on the two passages that redress was now sought.
.  .  .  The case was adjourned at about 5 o'clock, till 10 o'clock on Saturday next.

Source: North China Herald, 22 July 1887


LAW REPORTS.
H.B.M.'s SUPREME COURT.
Shanghai, 18th July 1887
Before Geo. Jamieson, Esq., Acting Assistant Judge.
HUNG CHEE-FOO v. C. W. URE.
  The hearing of this action for trespass was resumed this morning.
  Mr. E. Robinson appeared for the plaintiff.
   Mr. Drummond for the defendant.
  WOO SIN CHOO was called by Mr. Robinson and said that he had been in Shanghai for 30 years, and for the last 14 or 15 years was a land broker.  He knew the property in dispute, and recognized it on exhibit D. He knew it before the fire 12 or 13 years ago, when the passages were 5 or 6 feet wide.  They are not now the same width, being about a foot narrower.  Witness was the broker who arranged the mortgage on four lots of the property.
  Mr. Drummond did not cross-examine the witness.
  Witness to the Bench - Lot 1006 includes the three houses in dispute.  There was a foreign title deed of the property, and it is now held by Mr. H. S. Wilkinson.
  His Lordship said he thought the title deed had been destroyed.
   Mr. Robinson said it was an old title deed dated 1862 from the U.S. Consulate, that was destroyed.
  Witness handed exhibit F (Chinese title deed) and said that it would be of no use to a foreigner, but only to a Chinaman.
  The plaintiff, HUNG CHEE-FOO, who was recalled and examined by Mr. Robinson, said that the narrowing of passage A A took away very much from the value of his property.  It was not now wide enough for a coffin or a marriage chair to be carried out, which was a very important consideration with a Chinaman.  If the passage was not wide enough for a coffin or a chair the houses would only be fit for coolies to live in.  Witness's father had been very comfortably carried out by eight coolies in his coffin before the alterations; and when a Chinese lady is married, her chair has to be turned round twice.
  Mr. Robinson said that his client only claimed nominal damages.
  Witness resuming said that the narrowing of the passage cut off the light, air, and wind from the house.
  To the Bench - The passage was made narrow over ten years ago. Since that he had not lived there, and never heard of any of the tenants dying, or complaints that their coffins could not be carried out.  Just now the rain flowed off from one house to another, and completely spoiled them.  Before the fire he got $2.50 a month for the houses; now he could only get $2.  Witness had in all six or seven hundred houses.
  Cross-examined by Mr. Drummond - I have been getting $2 a house per month, for two years.  It is true that during the last two years, rents for Chinese houses in the Settlement have gone down very much; sometimes as much as fifty per cent.  For ten years prior to two years ago, my tenants on the property in question, were quite satisfied and made no complaints.  I could not take less than Tls. 2,000, for the three houses, which I offered before to Mr. Ure for Tls. 1,966.  As an investment for interest they would not now be worth more than Tls. 1,000, but I do not want to sell the houses and no man would give Tls. 2,000 for them.  The proper market value of the houses when they paid Tls. 2.50 a month would be 1,200 or 1,300 taels. That would allow something over 7 per cent nett.  The property is worth more to Chang Mei-san than to anybody else.  It cost me 200 Tls. to build each of these houses.
  Re-examined by Mr. Robinson - There has been no change in the value of any other houses in Fokien Road; they were let at $2.30 each, "number one low price."
  To His Lordship - Title deed 1.006 in the (British Consulate) including the houses in dispute and both passages, dated July 1876 was registered in Mr. Lester's name, Chang Mei-sang owed me Tls. 1,600 and I got the three houses, which he built, instead.  I afterwards mortgaged them to Mr. Lester.  After the fire Chang Mei-sang  wanted to "squeeze" me out of the land of the houses, and I then went to Mr. Lester and mortgaged the land to him. I could not sell the houses in dispute (mentioned in exhibit F) supposing I had got the Tls. 1,966 from defendant, without first settling with Mr. Wilkinson.
  Mr. Drummond said that he understood from what witness had said that the whole property in dispute stood registered in Mr. Lester's name.
  His Lordship said that was so.
  Mr. Drummond said that it was a queer thing to come into Court and not tell that at first.
  His Lordship said then it would have saved a great deal of trouble.
  Mr. Robinson said that the title deed was really a foreclosure.
  His Lordship said that the deed was perfectly valueless except as defining the passages.
  Witness to his Lordship - Mr. Lester was the first mortgagee, then the N. C, Insurance Company, then the French Bank, and then Mr. Wilkinson.
  The witness went down.
  Mr. Edward Parker, sworn, deposed he was the Interpreter to the Consulate-General.  He produced a translation of the document (produced) exhibit F.  He also produced a semi-official note from the Chehsien in reply to a note in Chinese in reference to the case.
  Mr. Robinson read the document at length, which detailed the former proceedings in the Court in the City between the plaintiff and Chang Mei-sang, but it threw no fresh light on the case.
  Mr. Drummond said that he had admitted at the very outset what was set forth in the document, just read, to save time.
  Mr. Robinson said that, with the exception of some letters which he would for convenience put in when Mr. Ure was in the box, his case was closed.
  Mr. Drummond in opening the case for the defence said that there was a joint agreement between Chang Mei-sang and the plaintiff, somewhat similar to that described, in which Chang had a certain interest in the property.  There was dispute between them, and Chang Yen-sang, then through a middleman, agreed to hand the plaintiff over the five houses and the passage to plaintiff to cancel a debt of the 1,600 taels and Chang was locked up as is the custom in the Mixed Court until the matter was settled, and the negotiations were carried through by two middlemen.
  In the agreement Chang agreed to give only the land of the five houses, but the other pressed for a passage, and it was finally agreed to give him one of four carpenters' feet in width, but he clearly specified that the passage was only to be four carpenters' feet, and after the rebuilding of the place, or from 1876 to 1885 there was not a word of complaint on the part of the plaintiff that anything was wrong.
  His Lordship observed that it was quite clear that they could not ask for damages for anything that took place prior to 1885.
  Mr. Drummond, resuming,  said that the defendant's case, or rather the case for Chang Mei-sang - for Mr. Ure was only the nominal defendant, - was that the so-called passage A A at the back had never been a passage at all, and was the property of the plaintiff alone.  It would be shown that there was no passage originally,
leading into the Fokien Road, no B B passage up to the time of the fire, and the first time the passage came into existence was after the rebuilding.  His client had never used A A passage which was exactly the same as before the fire, and one of the plaintiff's witnesses had said that the defendants never had a door into the passage at all. His client was still willing to give Tls. 1.966 for the property of the plaintiff provided a proper title deed.
  Mr. Robinson said that his client was willing to sell.
  Mr. Drummond - Then produce the title deed.
  His Lordship - Yes, title deed 1006.  It is quite clear now, that the plaintiff could not give a transfer on exhibit F (Chinese title deed). He advised the parties to try if they could settle the case before going further.  He would adjourn to 2 o'clock.
  Mr. Robinson said he would confer with his client.
  Mr. Drummond said he had one witness who was anxious to get away, and he asked his Lordship to take his evidence which would be bef.
  TSE SING FOON was then called by Mr. Drummond and said that he as a builder.  He had made the three plans for Hang Chee-foo, exhibits B. C and D.
  Mr. Drummond, in reply to his Lordship, said that this was the man that Hung Chee-foo sad made the plans for him, but when he was not able to find.
  Witness, resuming, said that the first of the plans was made about two years ago.  He made the plan without going to the place, but merely from the official Municipal map, and instructions as to the width of the passages; witness also made the plans produced) for Chang Yuen-sang. Witness lived near the property some 14 years ago, and never noticed a passage into the Fokien Road, but about 7 years ago, after the fire and the rebuilding, he noticed a passage.  Witness measured the passage B B three years ago, and it was then about four feet clear wide.  When the witness was making the last plan Mr. Hung asked him to put the passage more to the south, and he did so.  Witness himself had never seen the passage in that place.
  The witness was cross-examined at length by Mr. Robinson, and said that there was no passage because there was none marked on the Municipal map.  If Mr. Robinson wanted he would swear there was no passage (laughter).
  The native writer in the British Consulate was examined as to a title deed from Chan Yuen-sang to Chang Mei-sin.  To the best of his belief it bore the seal of the Shanghai Chehsien.
  Mr. J. N. Tratman of the Consul General's office was called, and swore that prior to October 1886 Mr. Mortimer was employed in the same office.  Witness identified Mr. Mortimer's handwriting on the translation of the Chinese document [both produced.]
  Mr. W. R. Carles, Vice-Consul, sworn said that the Chinese document (produced from the Consulate) was a history to the title of a piece of land.  It is not customary to have such a document in connection with a title deed; perhaps one title deed in twenty would have it.  It is found the most complete form of title.  Witness could not swear to the owner of the seals affixed.
  M. Robinson was proceeding to examine the witness at length upon the contents of the original document comparing it with the translation, when his Lordship objected and said that the translation could hardly affect the case, and besides it would be only right to give Mr. Carles notice of such examination.
  LO CHENG-YEE, sworn, said that he had compared the original document and the translation, and as far as his knowledge went it was a correct translation.
  Mr. Robinson again proceeded to go into a cross-examination on the document, but his Lordship refused to hear him upon the ground of waste of time.
  CHANG YUEN-SANG cautioned said that he knew the property in dispute, and part of it came to him by inheritance from his great grandfather.  Witness lived in one of the houses till the fire in '75, and after the fire he lived half a li further off for a time.  Before the fire there was no passage through any of the houses into the Fokien Road.  Previous to the fire there was some trouble between Hung Chee-foo and himself.  The dispute was settled after the fire.  Witness was kept locked up in the Chehsien's yamen till the matter was settled. Hung Chee-foo accepted the land of three houses and a passage four carpenters' feet wide in settlement of the debt of Tls. 1,600.
  Mr. Robinson contended that Chang Yuen-sang brought himself within the Statute of Frauds in making Mr. Ure defendant.
  Mr. Drummond said that it was plaintiff who made Mr. Ure defendant.
  His Lordship said that the Statute could not be applied to Chinamen.
  The cross-examination of the witnesses by Mr. Drummond was then proceeded with as follows: The document (produced) assigning over the property to plaintiff was signed by him while he was in prison. Formerly the people in the back house had to pass through the front house to get into the street, and the tenants arranged for this between themselves.  There were plenty of houses built on the same way in Shanghai.  The place marked AA on the plan was not a passage but a court yard. Passage BB measured four feet.  That was the year after the fire, and it remained the same way till witness sold the land to Chang Mei-sin eight or nine years ago.
  The Court then adjourned.
19th July.
  At the commencement of the proceedings Mr. Drummond expressed a desire to shorten the evidence as much as possible. Document F spoke of giving a passage, but did not specify the width; that referred to BB passage.  The contention of the defendant was that there was never a passage there.  Passage AA existed from time immemorial and was shown in the Municipal Plan.
  His Lordship said that to his mind the business properly began with exhibit F, and it was for the defendant to show what took place subsequently, and if it could be shown that he (defendant) altered the passage in 1885 in any way, the plaintiff would win his case, but plaintiff could not now come and ask for redress of a grievance in which he had acquiesced for more than ten years.
Mr. Robinson said that in deference to the suggestion of the court yesterday, he had conferred with his client who now offered to accept taels 1,966 for the property, on the condition of placing in the defendant's hands the usual Consular transfer for the houses and passages; each party to pay his own costs; and he asked his lordship to make a decree to this effect.
  His Lordship - Make an order that the plaintiff should sell the property for Tls. 1,966?
  Mr. Drummond - Your Lordship cannot do anything of the sort.
  His Lordship said that all he could do was to make an order dismissing the case, and this he was perfectly willing to do.
  Mr. Drummond said that the costs were a very serious question now, and besides the offer of a consular transfer was not a sufficiently good title.  He wanted a marketable title; and it was not long since a very big sale fell through owing to the Consular-transfer not being considered a good enough title.
 His Lordship - A title declared to be good by the Consular authorities and by the Chinese is most certainly a valid title.  The mode of obtaining these titles is this:" The consul first gets a deed from the Chinese authorities; it is taken to the consulate and examined, after which it is sent to the Taotai, and if it is found to be clear he puts his seal upon it, and it is returned to the consulate.
  Mr. Drummond said that there might be some interest in the title to a foreigner, either absent or dead, and he was bound on behalf of his clients to see that there was no such interest in his title.  He had already expressed his perfect willingness to pay double the value of the property, but he wanted a perfectly good title.
  Mr. Robinson said that his client would have to get the consent of Mr. Wilkinson's attorney, which he thought could be got.
  His Lordship said that if Mr. Drummond was not satisfied with the title he could come into court again.  If Mr. Drummond agreed to that his Lordship would adjourn the case for a fortnight, and if the title was then accepted he would then dismiss the suit.
  Mr. Drummond said that the costs now amounted to more than half the value of the property.  He (Counsel) thought that the plaintiff should pay his (Mr. Drummond's) client's costs, and he asked his Lordship to let the question of costs stand over to be argued afterwards.
  His Lordship sad that he could not do that.  Having heard so much of the evidence, the question of costs depended upon whether there was trespass or no trespass.  The defendant's story was diametrically opposed to the plaintiff's.  If the defendant could not give way on that question the case would have to go on.
  The examination of Chang Yuen-sang was then resumed as follows:- When the Taotai's deputy measured the property about a year after witness sold it to Chang Mei-sin, the passage was four feet wide.  When Chang Mei-sin rebuilt the wall in 1885, he followed the old foundations in A A passage.
  The witness was c ross-examined at great length by Mr. Robinson who was reproved several times by his Lordship for the utter irrelevance, as his Lordship said, of at least four-fifths of his questions.
  His Lordship said that it was perfectly ridiculous to be wasting time in this fashion over a trumpery case that could have very easily been disposed of in one day.
  Mr. Drummond protested in the interest of his client against costs being piled on by such a waste of time.  The cross-examination of the witness was then continued at length.
  Witness in reply to his Lordship produced portion of the old title deed 109 which was cut in two when the property was divided.
  CHANG MEI-SIN, the real defendant, who owns a shop adjoining the property in dispute, was called and examined by Mr. Drummond, gave evidence in support of the answer and his counsel's statement.  The first time he heard pf the complaint was last year when Mr. Ure wrote to him to Ningpo telling him that Hung would take him into Court if he did not buy property in  dispute for Tls. 1,966.
  Cross-examined by Mr. Robinson - He was still the real owner of the land, and why he got it registered in Mr. Ure's name was because it would be more easy to negotiate a loan upon it if it had a foreign title deed.
  Mr. C. W. Ure sworn said that he is in Messrs. Bissett & Co.'s.  He is a British subject and registered owner of the property in dispute, which was registered in his name about two years ago; he has no financial interest in the place.  He first heard of the dispute shortly after the ground was registered in his name.  Since the property came into his possession witness had paid the land taxes and obtained receipts which he could produce if necessary.  Immediately after the plaintiff made a disturbance with Chang Mei-sin who was rebuilding his premises and offered to buy the other property,  shortly afterwards Chang Mei-sin went to witness and told him that Hung was interfering with the work of rebuilding.  Witness sent for Hung and asked him what was the cause of the trouble; to which Hung replied that Chang Mei-sin promised to buy the houses and then refused.  Witness thought that Hung said the houses were let at $3 each and he (witness) said that price asked for, $1,966, was too much.  Hung said that Chang Mei-sin had offered him that amount and he would take no less.  Witness told him that if he had any more to say about selling the place [Hung] was to go to him (Mr. Ure) as he was the real owner.  Witness did not recollect Hung saying anything about the trespass at the time, his whole conversation being about the projected sale.  Chang Mei-sin immediately afterwards told witness that he would buy the houses, only that Hung could not show a clear title, that he was not the owner at all.  The impression on witness's mind was that Hung left his office knowing that if he brought a proper title he would get the money asked for.  Witness's firm had lent Hung money about that time, and he came about the office occasionally, but witness never saw him on the present business since.  Witness had since measured the passage since and roughly speaking the width was 3 English feet.
  Through the Court for Mr. Robinson - I could not say whether Mr. A. Robinson was aware that there was a difficulty about the title.
  LAO TSUNG-SIN, Chang Mei-sin's agent, was then examined for the defence and corroborated the statement that the new walls were built upon the foundations of the old, and that there was no trespass.
  Cross-examined by Mr. Robinson - It was not the plaintiff who objected to the building of the new wall, but some other people.
  LEI DONG HI, the carpenter employed by Lao Tsung-sin to rebuild the new houses was next examined and stated that the old site and foundations were followed exactly.
  The ex-Tepao of the Louza district also gave evidence.  He knew the property since it was first built, and before the fire there was no passage into the Fokien Road.
 After taking further evidence which was of no public interest the Court adjourned.
20th July
  The hearing of the suit was resumed this morning.
  Mr. Drummond briefly summed up the case and pointed out the discrepancies in the evidence, for the plaintiff, and referred to his client's willingness to pay more than double the value for the property if the plaintiff could produce a proper title.
  Mr. Robinson replied at considerable length to show that there was a very high handed trespass, and that the witnesses for the defence were not telling the truth, and he asked for exemplary damages.
  His Lordship said that as he had previously intimated the case was purely a question of facts.  He had no doubt what his decision ought to be sitting as a Jury and he would proceed to give Judgment at once.
  To begin with his Lordship thought that he might say a word or two as to the way in which the case had been put before the court.  He thought that it might have been very much shortened with advantage to all parties.  The basis on which the petition founded the case was an alleged parol agreement, dating as far back as 1862, between two adjacent proprietors by which a mutual right of way was reserved for common use and much evidence was adduced to show the state of things that existed between that date and 1875.  He thought it was quite unnecessary to go into that, because it appeared from plaintiff's own evidence that in 1875 a new agreement was come to and acted upon which thenceforth governed the relations of the parties.  
  In 1876 there occurred a fire which destroyed the houses of both the proprietors, that is the present plaintiff and a man named Chang Yun Sang, from whom the defendant derives his title.
  These two parties had long had monetary dealings. Chang Yuen Sang after the fire was unable to settle up, a suit was brought against him, a sum of Tls. 1,600 was found due and he was detained in the Yamen until he should make a satisfactory settlement. This he did by making over by deed the sites of 5 pf his houses in the rear row to the present plaintiff and granting him a "passage for egress and ingress" to the said houses which passage is the passage or one of the passages in dispute. Very soon thereafter the houses were rebuilt, one lot by the plaintiff on his newly acquired sites, and another lot by Chang Yuen Sang having between them the passages in question.   As so constructed, things remained for about 8 or 9 years until the property passed into the hands of the present defendant and a dispute arose over the putting down of boundary slows. Whatever therefore may have been the agreement or understanding prior to the fire, it appears clear that a new agreement was then come to and was acted upon by the building of the houses and the actual construction of the passages. I must take it that the passages as actually constructed represented the intentions of the parties, and plaintiff having acquiesced in that state of tings for eight or nine years cannot now come and complain of any wrong he may then have sustained. It is not alleged that there was any alteration between the rebuilding after the fire, or at least after the date of the plaintiff's return from Ningpo in 1876 and 1885.
 So that the question was brought down to this: was there or was there not any encroachment on the passages when the houses were rebuilt in 1885?  He had therefore to look at the case merely as one of facts.  Looking at the case for the plaintiff, and leaving his evidence outside consideration for the moment, there were only two witnesses whose evidence was of material value.  One was his tenant Loo who said that he had been there for a great number of years, and that the passage had been narrowed.  He gives as his authority for saying so, that he was formerly able to reach his two hands across the passage, and now it was not wide enough to do so.  That was exactly what he said.  He did not say that he took any measurement of the place.  The next witness was plaintiff's Shroff or rent collector, and his evidence might be taken as that of a more or less interested party.  But even he did not attempt to speak with any great precision on the question of the width of the passage. He said no doubt that it was not now as wide as it was before. The third witness called for the plaintiff was a man named Hoo Quan-sing, but his evidence at once fell to the ground because he did not see the alleyway since it was rebuilt; and he only saw the place as he passed along the road outside. Then there was the evidence of the man who kept the medicine shop at the corner.  But he too only spoke roughly, for he did not take any measurements.  That was practically all the evidence for the plaintiff.
  Against that he would simply set the evidence of the two witnesses for the defence. The first was the man employed to make the plans by the plaintiff, plans on which plaintiff relied to show his case.  He was not called by plaintiff who said he could not be found but he was produced by defendant.  He states that he made up a plan to show the width of the passage, and he said in Court "I made in the plan the width of the alleyway 4 ft. 10 inches" and in answer to the question "Is that the true width?" he said "the plaintiff told me to include the posts of one of the houses." Now this was the evidence of the man employed by the plaintiff, and his evidence was all the stronger as coming from defendant's side. The next evidence was that of the builder who was produced by the defendant, although it was open to the plaintiff to get hold of him, and of the other workmen employed.  There were scores of them about, and they could have been very easily got by the plaintiff.  
  The question was a question of fact whether in the rebuilding, which was less than two years ago the foundations had been extended.  No better evidence could be found of this than that of the men actually employed in the building.  In fact any one of the workmen would have done, and told the court what was wanted.  But they were not called for the plaintiff. The defendant, on the contrary, called one of them, the builder himself, and he said that he was employed to rebuild the houses, and that he did so exactly upon the old foundations.  Therefore taking these two witnesses alone, and putting their evidence against that of those for the plaintiff, the plaintiff had not made out his case.  It was impossible for him to hold in the face of that evidence that trespass had been proved, and consequently he would simply dismiss the case.
  The plaintiff would have to bar the costs and he would not say he was sorry for it, for it appeared o him (his Lordship) that the plaintiff had had it in his hands to get a very good price for his land and settle the case at the same time.  The reason why the sale had fallen through was no doubt the faultiness of the title offered.  It must have been within the plaintiff's knowledge that the land which he proposed to sell was covered by a foreign title deed, and was mortgaged to a foreigner.  Yet it [was] proposed to transfer upon an unstamped deed which as it now appears was no a title worth the paper it was written on.  Even in Court here in [he?] maintained that it was a good deed, and that he could get it stamped at any time by paying a small fee.  He declared in fact hat it was the only title he had, knowing as his Lordship said, very well that the true title deed was at that time mortgaged to Mr. Wilkinson.  It was not till the broker who negotiated the loan was examined that the fact of there being a foreign deed in existence was ever mentioned.  There may have been no intention to deceive, but the fact remained hat the sale fell through, and it seemed the plaintiff had only himself to thank for it.
  Case dismissed with costs.

 

Source: North China Herald, 22 July 1887


CHINESE POPERTY OWNERS IN SHANGHAI.
THE case decided in the Supreme Court on Wednesday was one with more interest for the public than would appear at first.  In the first place it served to draw attention to a custom which has been growing of recent years, of transferring the land in the Settlement to Chinese, who under the Treaty are precluded from holding such lands in their own name, and who to escape the disability have them registered in the name of a foreigner who no doubt for his protection receives a substantial consideration in one shape or another. In the second it may serve as a warning to intending litigants, and forcibly calls to mind the fable of the cats and the cheese.  In the words of Acting Assistant Judge Jamieson, "It was perfectly ridiculous to be wasting time over a trumpery case that could very easily have been disposed of in one day."
  No Court at home could have spared the time to listen to such a mass of utterly irrelevant evidence as was produced in this wretched little squabble over a few feet of land; and a less good-matured judge than Mr. Jamieson would, even in Shanghai, where such unusual liberty and length of speech are allowed to lawyers, have obliged the issues to have been confined to a narrower sphere. But while congratulating the learned counsel on both sides on the patience of the tribunal, we cannot help thinking that the client of one of them at least, will not join with us in the compliment.
  The suit was ostensibly one for damages, instituted by a Chinaman named Hung Chee-foo against Mr. C. W. Ure, who was merely the figurehead for another Chinaman, Chang Mei Sin, the real defendant, a shopkeeper in the Fokien Road, but it was really an attempt to make the latter purchase at an exorbitant price some houses and a piece of land of which the plaintiff was in possession, and for which he could produce no proper title.
  The property seems to have ben mortgaged half a dozen times to as many foreigners, and the title deed is now in the hands of Mr. H. S. Wilkinson.  Possibly it may have been mortgaged as many  times again upon the flimsy title which Mr. Hung produced in Court, as the plaintiff would have probably found to his cost if he had been foolish enough to buy the land.
  The issues were complicated and enshrouded by what was aptly called "ancient history" by the Judge, but the gist of the plaintiff's case was that Chang Mei Sin "squeezed" him out of a foot or so of a passage leading to his houses in Fokien Road.  But he failed to call the most important witnesses to prove this, namely the men engaged in the rebuilding of the place after the fire in 1875, but they were produced by the defendant and proved that the original foundations were exactly followed.  Another point which very properly weighed with the Court, was the long sustained attempt to mislead it as to title, but this was, fortunately for the interests of justice, and for the defendant, discovered by his Lordship, who stated his mind pretty freely upon the point.
  During the hearing of the case a Chinese witness was examine as to the title deed of the original property of which he produced one half, naively adding that when the half of the property was sold he thought that half of the title should accompany each portion.  
  Reverting to the ownership of land in Shanghai, we may state that we have been informed that more ten two-thirds of the land in the foreign Settlement has now passed into the hands of the Chinese, although it as given by the treaty solely for the benefit of and occupation by foreigners. This being so, and by far the larger part of the remaining third being the property of absentees, who do here what their class has done in Ireland, take everything and do nothing for the place, residents who have to bear the heat and burden of very unremunerative days should bear this in mind when any adjustment of taxation is necessary.
  The whole question of the ownership of land in the settlements ought to be carefully considered.  The original intention of Captain Balfour, when he first opened Shanghai, was that the Chinese should sell to foreigners such land as was actually required for the settlers to carry on their trade.  There was no prohibition against re-selling the land once acquired by foreigners to Chinese because it was never thought that foreigners would take up more land than they actually wanted to use.  There was a prohibition against building houses for Chinese on foreign acquired land, but when speculators saw what a lucrative business this would be they put such pressure on Consul Medhurst, that, not being by any means a strong man, he gave way, and the prohibition has never been enforced.
  The idea that land would become the subject of speculation, and the mans of investment, that it now is, never entered the heads of the founders of the Settlements, and accordingly no precautions, or very slight precautions, were taken against hat misuse of the power given to foreigners to acquire land here, and the regulations under which land is now held by foreigners ae quite unsuited to the present condition of affairs, and demand a careful revision.

 

Source: North China Herald, 17 September 1887


LAW REPORTS.
H.B.M.'s SUPREME COURT.
Shanghai, 15th Sept., 1887
Before Sir R. T. Rennie, Chief Justice.
HUNG CHEE-FOO v. C. W. URE.
  Mr. A. Robinson for the Plaintiff.
  Mr. Drummond on behalf of the defendant applied that the plaintiff be ordered to give additional security for costs of he re-hearing of this suit, which has been already reported at length in the Daily News, and in the meantime that all further proceedings be stayed.  In support of his application the learned counsel referred his Lordship to the Supreme Court Rules 253 and 263, and to a ruling given on the 26th of January, 1885, by his Lordship in the case of Wu Tu Shan v. D. Sassoon, Sons and Company on a similar application, which was granted to Mr. Robinson who in that case appeared for the defendant.
  Mr. Robinson in opposing the application said that $500 had already been paid into Court by his client.  The case went to a hearing, and in the middle of the hearing the defendant took out a summons, which he (Mr. Robinson) opposed, to make his client give additional security for whatever further costs might be incurred.  He contended that the Assistant Judge, who made the order sought for, had no right to make such an order at that stage of the proceedings, the plaintiff having at that time already paid $250 to the Court.  His point was that his Lordship was not bound to give the case a re-hearing as a matter of right to the plaintiff without imposing such a condition as security for costs.  The case should be re-heard unconditionally, and he asked his Lordship to decide upon that point.
  His Lordship said that in giving his decision he would be influenced by consideration of the fact that a case from the Consul at an outport could not be re-heard by the court unless on an appeal, stating grounds, and here a case decided by the Assistant Judge, who was presumed to know more about law than a Consul, was sought to be reheard without any reasons being given for an appeal.  The plaintiff went into Court with his eyes open and elected to have the case tried by the Assistant Judge, and now asked his Lordship to hear it.  He thought it should be a rule that if persons wanted the decision of the Chief Justice they should wait till he could heard the case in the first instance, and it was intolerable that after the trial by the Assistant Judge the rime of the Court should be wasted by rehearings. If persons chose to have a shot before the Assistant Judge he (his Lordship) could no prevent them having a rehearing before him, but he would not facilitate it in any way.
  Mr. Robinson said he was forced by Mr. Drummond threatening to ask for a dismissal of the case, to have it heard by the Assistant Judge.
  Mr. Drummond said that about $1,000 would probably meet the costs, and he asked his Lordship to make an order that this amount be lodged in Court,
  Mr. Robinson characterized the application for such an amount as preposterous.
  His Lordship thought that having regard to the time occupied by the case at the previous hearing, it would probably last about five days, and he therefore made an order that $500 be lodged in Court by the plaintiff, all further proceedings to be stayed in the meantime, the costs to be costs in the case.

Source: North China Herald, 5 October 1887


LAW REPORTS.
H.B.M.'s SUPREME COURT.
Shanghai, 26th Sept., 1887
Before Si R. T. Rennie, Chief Justice.
HUNG CHEE FOO v. C. W. URE.
  Mr. W. V. Drummond, on behalf of the defendant, on Tuesday last, made an application upon a summons for taxation of costs in the above named suit in which Mr. A. Robinson was for the plaintiff who had obtained leave for a rehearing.  Assistant Judge Jamieson, having at the rehearing of the case refused to entertain Mr. Drummond's application, it thereupon came before the Chief Justice and was argued very fully, judgment being reserved.
  His Lordship in delivering judgment said:-
  A summons has been taken out in this case calling upon the plaintiff to show cause why the costs of the defendant, who was successful on the hearing of the suit before the Assistant Judge - should not be taxed.  It appears that the defendant's counsel had already applied to the Acting Assistant Judge as taxing master to enter upon the taxation and that he has refused to do so on the ground that there has been virtually a stay pf proceedings in the suit in consequence of the plaintiff having claimed a rehearing before the Chief Justice and Assistant judge under the Provisions of Section 4 s.s. (4) of the Order in council 1878, and a day having been appointed for the rehearing the learned counsel for the defendant now contends that the pending rehearing is in the nature of an appeal and has cited divers authorities to show that proceedings on appeal are no stay of proceedings without  a special order to that effect being made.
  The learned counsel for the plaintiff says that a rehearing is not an appeal, and claims, as I understand him, that a rehearing within the meaning of the Order in Council is in point of fact equivalent to a new trial and that on such rehearing the whole case should be gone into de novo; but he does not contend that proceedings
in appeal are, without special order to that effect, a stay of proceedings.
  It becomes necessary then for me to consider what is the meaning of the word "rehearing" as employed in section 4 S.S. (4) of the Order in Council.  The Section says that "any party to a suit in proceeding wherein any matter is heard and determined by the Assistant Judge shall be entitled as of course to a rehearing before the Chief Justice sitting with the Assistant Judge or in the unavoidable absence of the Assistant Judge, alone."  In the case of In re St. Nazaire Company, L.R. Ch. Div. XII 88, the Court of Appeal expressly decided that under the system of Procedure established by the Judicature Act, no Judge of the High Court had any jurisdiction to rehear an order whether made by himself or by any other Judge, the power to rehear being part of the Appellate jurisdiction which is transferred by the Acts to the Court of Appeal; and from the judgment in that case I have been enabled to ascertain very clearly the history and nature of rehearings in the courts at home.  
  It would appear that rehearings were a special features in the former Chancery jurisdiction and unknown at Common Law. Thesiger L.J. at page 101 says:
  "Whatever may have been the practice in the High Court of Chancery before the Judicature Act, as to the review of these decisions or the rehearing of their decisions, nothing can be clearer than that there was nothing analogous to hat in e Common Law Courts," and Jessel M.R. at page 98, says,
  "Now part of the old jurisdiction of the Lord Chancellor was a right to rehear his own decision or the decision of a preceding Lord Chancellor, and similar powers passed under statute to the Master of the Rolls and the Vice-Chancellor, and they also had a right to rehear their own decision and the decision of their respective predecessors."
  Now what was the right of rehearing. Was it original jurisdiction or was it appellate jurisdiction?  There can, as it seems to me be but one answer to that question.  It was appellate jurisdiction.  No doubt it was sometimes an appeal from a judge to himself, but it was much more frequently an appeal from a judge to his successor.  One of the very first cases heard before Lord Lyndhurst was a rehearing of a case before Lord Elton, whose decision he reversed.  In fact the hope of every appellant was founded in a change of judge.  Such a petition of rehearing could not be described otherwise than as an application in the nature of an appeal.  Indeed every rehearing was an appeal although every appeal was not a rehearing."
  In the earlier case of Jones v. Chennel, VII Chancery, Div. 505, the same learned judge referring to order LVIII of the Judicature Act said: "All appeals are by way of rehearing, that is by trial over again on the evidence used in the Court below, but there is special power to receive further evidence." Looking now at the tern "rehearing" as employed in our Order in Council, by the light of the authorities I have cited, I entertain no doubt whatever that a rehearing such as that claimed and impending in the present suit is an appeal, and that it is to be reheard, if at all, on the evidence used in the Court below supplemented only by such fresh evidence, if any, as the Court of Appeal may on due application  made to it allow to be adduced, and I  may add that except in so far as rehearing is a matter of course this and other rehearings will be subject to all such limitations as are incidental to ordinary appeals in this Court. The defendant's bill of costs in this suit would then be liable to be taxed in the ordinary course, as the defendant claims that it should be, seeing that no stay of proceedings has been ordered, but inasmuch as the decision I have now arrived at will establish a different practice in reference to rehearings to that which has hitherto prevailed in this Court, I shall be ready to entertain a special application from the plaintiff should he desire to make one, for a stay of proceedings pending hearing of this appeal.
  Mr. Robinson then applied to His Lordship, asking him to revise the order applied for by Mr. Drummond, and urged that in the event of the decision on the appeal being the other way, the costs of taxation would be thrown away, and the work of taxation might have to be done over again.
  Mr. Drummond replied by referring to the case of "Barker v. Lavery," xiv Q.B.D. page 759; which showed that execution for costs pending an appeal from the Court of Appeal to the House of Lords will not be stayed, unless evidence be adduced to shew that the respondent to the appeal will be unable to repay the amount levied by execution, if the appellant be successful before the House of Lords.  He also referred to the fact that the rehearing of the case of Hung Chee Foo v. Ure had been sent down for this morning (Saturday) at 10 o'clock, that it was now past 11 o'clock, and the case had not been brought on before the court, and that it was unreasonable that the plaintiff by doing nothing, should be able to prevent the defendant from obtaining his costs under the original decree.
  His Lordship was of opinion that no sufficient reasons had been shown why a stay of proceedings should be granted against the defendant and he therefore granted the order asked for by Mr. Drummond for the taxation of the defendant's costs.

 

Source: North China Herald, 30 November 1887


LAW REPORTS.
H.B.M.'s SUPREME COURT.
Before Sir R. T. Rennie, Chief Justice.
Shanghai, November 28th, 1887
HUNG CHEE FOO v. C. W. URE.
  This was an application by the defendant to have the appeal in this case dismissed with costs,.
  Mr. Drummond appeared for the defendant.
  Mr. A. Robinson for the appellant entered an affidavit containing the following paragraphs:-
5. - That owing to such last mentioned Order, plaintiff became unable to move for leave to adduce additional evidence on behalf of the plaintiff at the hearing referred to in the 3rd paragraph of the affidavit.
6. - That since the hearing of this suit before the said Assistant Judge, and in consequence of the observations contained in his judgment, the plaintiff has, as I am informed by him and believe, sought for and procured further material witnesses to prove the width of the passages between the houses of the plaintiff and one Chang Yuen-sang constructed in or about the year 1875 down to the year 1885, when the defendant committed the trespass alleged in the plaintiff's petition in this cause, and which said passages are more particularly referred to in the said judgment of the said Assistant Judge.
7. -That the said further material witnesses consist of a mason who took part in the construction of the houses built by the defendant in or about the end of the year 1885, and of two other well known Chinese shopkeepers who have lived in the actual neighbourhood of and used the said passages ever since they were constructed, and of two other well known Chinese shopkeepers who have lived in the actual neighbourhood of and used the said passages for a period of five years or thereabouts immediately prior to the year 1885.
8. - That the said witnesses mentioned in the seventh paragraph of this affidavit are as I am informed and believe prepared to give evidence that the passages above referred to were made narrower by the houses built by the defendant in or about the end of the year 1885.
9. - That if the plaintiff is allowed to adduce at the rehearing of this cause the further witnesses mentioned in the 7th paragraph of this affidavit, he will forthwith after the granting by the Honourable Court of the lave to adduce such further evidence, deposit in Court the further sum of Five Hundred Mexican Dollars, and agree that the rehearing of this case shall be fixed, subject to the approval of  this Honourable Court for Friday, the 9th December next, or any subsequent day which this Court may fix.
  Mr. Drummond submitted that his client was entitled to have the appeal dismissed on the grounds that the appellant had not complied with the Order of the court of the 15th Sept. requiring him to lodge $500 for costs, and also because a reasonable time had elapsed to justify the present application.  In support of this contention he referred his Lordship to the cases of Washburn and Moen Manufacturing Co. v. Patterson L.R. 29, Ch. Div. p. 48; La Grange v. McAndrew $ Q.B.D., p. 210, Polini v. Gray, 11 Ch. Div. p. 741; and also the case of In re Ivory L.R. 10 Ch. Div. P. 377. He did not think that under the circumstances the court would treat the present case as a bona fide appeal, but rather as a speculative one, otherwise the appellant would have complied with the Order of the 15th September, if Mr. Robinson wanted to produce additional evidence.  In reference to paragraph 6 of the affidavit. Mr. Drummond contended that instead of helping Mr. Robinson's case the observations of the judge were the very best reason why any fresh evidence should not be allowed, and he quoted a passage from the judgment of Jessel, M.R., in the case of Sanders v. Sanders, L.R. Ch. Div. 19, p. 380., which was as follows:-
  "The appellant has applied for leave to adduce fresh evidence, but I am of opinion that it ought not to be granted.  The application is for an indulgence.  He might have adduced the evidence in the court below.  That he might have shaped his case better in the Court below is no ground for leave to adduce fresh evidence before the Court of Appeal.  As has often been said nothing is more dangerous than to allow fresh oral evidence to be introduced when a case has dismissed in Court. The exact point upon which evidence was wanted having been discovered to allow fresh evidence to be introduced on that subject would offer a strong temptation to Perjury."
  The case had stood over for a long time on the files of the court and there was ample time at the hearing for Mr. Robinson to produce all his witnesses who according to his affidavit lived in the neighbourhood and were all well known.  It was only when he (Mr. Drummond) applied for an order of dismissal after a year that it was brought on at all.
  Mr. Robinson in reply contended that there were in the case circumstances under which it was only far and reasonable to relax the rule regarding the admission of fresh evidence.  The plaintiff had been ordered to give security when he ought not to have been asked to do so.
  His Lordship said that if Mr. Robinson could make out that it was a hardship on his client to have to give the security, then he would consider it an extenuating circumstance.
  Mr. Robinson said that it was a hardship.  The appellant had gone into Court with his case and in the middle of the hearing he was ordered by the Assistant Judge to give security for costs.  The defendant had notice that the plaintiff applied for a rehearing on the 2th July and did not apply for security to be lodged until the case was in Court.  He (Mr. Robinson) was utterly astonished at such an order being made in the middle of the case, and in the whole course of his experience had never known anything like it before.  His client's hands were tied by the order to give security for costs and not being able to produce any fresh evidence without special leave, and therefore he had not complied with the order.  He referred his Lordship to the case of Indian Kingston Gold Mining Co., Ltd. reported in L.R. Ch. Div. 22, p. 88, in support of is argument, and contended that it was only just and right that his client should be allowed to produce any fresh evidence that he thought essential to his case.
  His Lordship said he did not consider that any extenuating circumstances had been made out by Mr. Robinson and he really did not see that any point as regards hardship had been made out, except perhaps that Mr. Robinson said the rule which he (His Lordship) laid down on the 26th Sept. was new, and that the plaintiff might not have  reasonably supposed he could bring forward any evidence he pleased, so that the order his Lordship made might, coupled with the order for further security, have been a surprise to him.
  He had considered the general merits of the case and he confessed that he thought the ground upon which Mr. Robinson asked for leave to produce fresh evidence a most extraordinary one, and he agreed with Mr. Drummond's remarks upon Mr. Robinson trying to make a case upon observations of the learned judge who had already decided it.  Nor did his Lordship hold that after the observations of the learned judge on the hearing of the case, the plaintiff the unsuccessful party - should be allowed to bring forward fresh evidence on the points raised, and he agreed with what Justice Jessel had said, that it would be extremely dangerous.  He did not see that any case for the production of fresh evidence had been made out.
  Security for $500 was applied for eleven days before the hearing, and his Lordship did not see how any injustice or hardship had been done in the court below.  The refusal to comply with the order was unreasonable, and the attempt now to make conditions, in the last paragraph of the affidavit, with the Court was not a proper one to take.
  In conclusion, his Lordship could not entertain the application for the appeal; clearly under the circumstance the appeal was dismissed with costs and the order of the court below remained unchanged.

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