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Colonial Cases

Gregson v. George, 1888

[local government]

Gregson v. George

Supreme Court for China and Japan
Mowat ACJ, 19 Marh 1888
Source: North China Herald, 23 March 1888

H.B.M.'s SUPREME COURT,
Shanghai, 19th March.
Before R. A. Mowat, Esq., Acting Chief Judge.
ON APPEAL CASE FROM CHINKIANG.
GREGSON, Plaintiff and Appellant, v. GEORGE, Defendant and Respondent.
  An appeal case in which the issues were somewhat involved was heard in H.B.M.'s Supreme Court before Acting Chief Justice Mowat.  The appellant was Mr. F. Gregson, Commission Agent, Chinkiang, who appeared in person, the respondent being Mr. E. W. George, lately acting as Secretary to the Municipal Council of Chinkiang, for whom Mr. R. E. Wainewright appeared. The suit was originally instituted by Mr. Gregson as Secretary for the new Council for the recovery of the books and other documents of the Council from Mr. George, and was heard by Mr. E. L. Oxenham, H.B.M.'s Consul Chinkiang, who decided against Mr. Gregson, on the ground that defendant had never been dismissed from the office of Secretary.  In the appeal the main question turned upon the qualification of the appellant to sit as a member of the council by whom he was appointed Secretary.  By the Chinkiang Land Regulations three members must be elected to form a Council, and if Mr. Gregson's own election was invalid, there was no Council that could appoint him Secretary and so give him a title to sue.
  The appellant submitted that he was qualified, first, as a partner in a pawnshop which constituted him "an occupier" of the building on Lot 13.  He also claimed as agent for various absent Leaseholders.  As to the alleged partnership the evidence upon which plaintiff relied, and which had been taken before the Assistant Judge with a view to the appeal, was his own testimony that he was a partner; he relied also on the fact that the defendant and respondent had taken no steps to disprove it.  His Lordship pointed out that he could not accept this mere statement as conclusive.  The onus of proving the partnership in respect of which he claimed qualification, rested upon the appellant. Everybody did not know what constituted partnership - it was to be inferred from the facts - and he had therefore been asked to furnish information from which it would appear whether he was a partner or not. This appellant had declined to do.
  The appellant observed that the court below had asked him what his interest in the business was, which he had declined to state, and the court had held that he was perfectly justified in declining to produce the agreement between himself and the Chinaman.
  His Lordship sad he was no doubt quite at liberty to decline to reveal his dealings with the Chinaman, but then he must remember it might be fatal to his claim of partnership.  In case however, that appellant had misunderstood the position in the Court below, His Lordship was willing now to give him an opportunity of tendering further evidence on this point.
  Appellant did not seem to be disposed to take advantage of the offer, and proceeded to argue the other point in the case, which was that even as agent he was capable of sitting on the Council, and he referred to the evidence of Mr. Oxenham and other witnesses to show that this had as a matter of fact been the practice for years.
  His Lordship said he could not accept such evidence against the express wording of the Land Regulations.  He must dismiss the appeal, but without costs.
  At the request of Mr. Wainewright, who was not called upon, His Lordship afterwards furnished a minute of the reasons of his judgment as follows:-
  The Court held on the construction of the Land Regulations for the British Concession at Chinkiang, and on the evidence on the record, that appellant was not qualified as a councillor. Under Regulation V., an elector, to be qualified as a councillor, must be himself an "actual lessee of Land, or occupier of a building." All councillors must be electors, but not all electors are qualified as councillors.  The distinction was clearlu laid down in the Regulations, and it was doubtlessly expressly devised, to ensure that the larger powers of councilors should be exercised only by persons who had a more or less permanent substantial interest in the place, and not by merely temporary agents of such persons or by holders of proxies from them.  But however this might be, the language of the Regulation was explicit, and effect must be given to it.    That the Regulation had been disregarded in the past, could not affect its true construction.
  As to the evidence, the court found no sufficient evidence on the record that appellant was "an actual lessee of land or occupier of a building;" and though he was there and then given the opportunity of applying to the Court to be allowed to supplement his evidence on the point, he did not do so.
  The Court therefore dismissed the appeal; his title to sue depended on the validity of his appointment as Secretary by the Council, and the existence of a council (there having been only three persons elected) depended on the validity of his qualification as councillor.  The Court refused, however, to give costs to the respondent.  The decision of the court below was not affirmed on the ground proceeded upon there; nor, independent of that, was the case, having regard to all the facts appearing on the record, one for costs.  Further, the appellant having been declared elected Councillor by H.M.'s Consul, he was in a measure bound to take up the position he had taken up.

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