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Colonial Cases

Major v. Jardine, Matheson and Co., 1893

[injunction - land law]

Major v. Jardine, Matheson and Co.

Supreme Court for China and Japan
Hannen CJ, 9 December 1893
Source: North China Herald, 15 December, 1893

Shanghai, 9th December.
Before N. J. Hannen, Esq., Chief Justice.
  The hearing of this case was continued this morning.
  Mr. H. P. Wilkinson appeared for the plaintiff, and Mr. J. C. Hanson for the defendants.
  Mr. Wilkinson said it now became his duty to sum up for the plaintiff in this action. The action was a suit brought in that Court, and the issue, as he stated in his opening, was, who was the owner of the land. The proceedings began by an application for injunction, not by a suit for injunction. In the course of that there was a commission home to obtain certain evidence. On the return of that commission the suit was proceeded with, and as he said, the object was to determine the ownership of the particular piece of land held under the Austrian Consulate title-deed No. 84.
  His learned friend, Mr. Hanson, had relied upon technical defences. He could meet him on the ground of technical law if he (Mr. Hanson) wished to set up a defence founded upon a peculiar form of action no longer existing in England, and which never did exist in this particular Court. The action for ejectment was a thing of the past. The Judicature Act referred to by Mr. Hanson had further enlarged and taken away the technicalities which stand in the way of Judges granting an injunction in cases where, had it not been for those technicalities, they would have granted them.  If it were a question of old obsolete law he (Mr. Wilkinson) was quite prepared to meet his case, which he took to be that it was for plaintiff to prove his right to the land, of which, rightly or wrongly, the defendants were in possession.
  A judgment given on such a defence as that would not be a final one, and no defendant would come to Court and ask for a judgment which would leave the plaintiff and defendant in the same position as before. Referring to the authorities, the learned counsel contended that no such thing as an action for ejectment exists now, and the plaintiff having pleaded that he was the legal owner and occupier, and defendants having pleaded that they had not trespassed, made it an action for title.
  As regarded the plaintiff brining an action for slander of title, he did so in order to raise as fully as possible the facts, and there was no special wickedness in bringing an action for slander of title against Mr. John Macgregor.  The plaintiff bought it for the convenience of the defendants, who had admitted it, and there was no particular ill-feeling about it.
  As to the general case, the defence of the defendants was that the boundary of lot 1.292 was, on the north, the south bank of the Soochow Creek. To prove that they had produced the renter's copy given to them by the British Consulate, and presumably that was their evidence of title. That deed had got no statement on it that the boundary was the Soochow Creek; it said the boundary was "the edge of the road on the bank of the Soochow Creek." As to that there could be no possible doubt whether it existed in 1882, when Jardine's got possession, because it was put on Mr. Kingsmill's map as running past the temple.
  The defendants contended that they had a right of pre-emption from the Taotai, they said they bought everything up to the road, and everything outside that was land for which they could obtain shenko on payment to the Taotai. But in answer to that contention, he (the learned counsel) would point out that the Taotai had decided it was not foreshore land of their lot by granting a title-deed for that particular piece of land to someone else of which the southern boundary was the particular road. If all the land outside their lot was land which they could only get by obtaining shenko for it from the Taotai, why was it they should buy from somebody else the 40ft. foreshore?
  His Lordship said that so far as the 40ft. strip was concerned, it might have been between two bits of tientau land, and tientau land outside that road and towards the creek would give the owner of it a right to shenko. They found that Major in some way had some kind of title from the Chinese to that bit, and they bought it. He did not think that that purchase went to show they did not think they had any right to get shenko of the other land in front of the lot.
  Mr. Wilkinson, continuing, referred to the evidence taken on commission, contending that the defendants at the time they bought the 40ft. knew that the rest of the land belonged to a Chinaman who had paid Tls. 500 for it. But they did not trouble themselves about it, and Mr. Major subsequently acquired the rights of the Chinese purchaser. How then could the defendants go on after this trying to ignore this and say they would pay the Taotai for the land? The defendants had endeavoured to maintain that because the transfer of the land from Vinzenovich to the Major had not been sanctioned by the Taotai, therefore the plaintiff had no title to the land. But such a contention was absolutely incorrect. The Taotai was only the arbiter between the foreigner and the Chinaman to settle the original title, and subsequent transfers from one foreigner to another foreigner had nothing to do with the Taotai. If that were not so the Taotai would have the power - which was never claimed - at his own sweet will to annul any deed which was sent in to him for the transfer from one foreigner to another.
  In conclusion, the learned counsel referred to the action for slander of title, and disclaimed any personality in it, but it had to be put in to deal with such determined trespassers as the defendants.
  The Court then rose for the day, judgment being reserved.


Source: North China Herald, 22 December, 1893

Shanghai, 18th December.
Before N. J. Hannen, Esq., Chief Justice.
  This case came again before the Court this afternoon, upon an application by Mr. J. C. Hanson, to produce further evidence. Mr. Hanson appeared in support of the motion, and Mr. H. P. Wilkinson for the plaintiff.
  Mr. Hanson said his application was that the defendants might be at liberty, notwithstanding the last stage of the case, to adduce as evidence certain plans. He was quite sure it was a very unusual application to make, especially at that stage, but the case itself was, he thought, rather an unusual one, arising as it did out of the peculiar way in which title to land was held here. His Lordship would perhaps recollect that in the endorsement on the defendants' title deed, as to the measurement of the land in the title-deed, was a reference to the reports of the deputies when the land was measured, and it appeared the reports were accompanied by plans, and it was these plans that he now asked leave to put in evidence.
  Unfortunately, until recently, it had not been the practice to keep copies in the Land Office of such plans, otherwise he might have been able to see them in the Land Office. As stated in his affidavit, he had made constant enquiries through the proper channels to ascertain whether or not these plans which were referred to in the endorsement existed or not, and to see them, but it was only last week he was able to ascertain definitely that those plans were in existence, and that they would be material assistance in support of the defendants' case. Of course, it might be asked why he did not apply at the very beginning of the case to ask the Taotai to produce in Court any plans. In the first place, he (Mr. Hanson) did not know definitely whether there were any such plans in existence, and if they did exist, of what they consisted. It might be said that he objected to certain plans being put in by the plaintiff, but his Lordship would see that a tipao's plan, prepared by him with the assistance of the elders and gentry in Sinzi was a very different plan from those he (Mr. Hanson) now asked to be put in evidence, plans officially prepared at the time the title-deed was granted to Mr. Major.  Of course, there was a very great reluctance on the part of the Court to allow new evidence to be put in, especially as both sides had summed up, but he thought it was a little different where the new evidence proposed to be put in was documentary. He had looked into a great many cases, but her could not find a hard-and-fast rule laid down which absolutely prohibited any new evidence being received.  Of course, he did not ask for it as a matter of right; it was simply a question of indulgence.  He thought the evidence was material to his case, and left it to His Lordship's discretion as to whether it could be brought in.  He had considered it right to make the application now, rather than to wait and allow judgment to be pronounced, because, if after the judgment, either party wished to carry the case further and he applied to bring in his new evidence he might be told he should have mentioned the fact directly he heard of the evidence.
  Mr. Wilkinson said the fact of His Lordship, in his discretion, placing the application down for hearing was the reason he (Mr. Wilkinson) would go into the argument on the facts as adduced by the other side ----
  His Lordship - I don't understand what you mean by that; the defendants, by their Counsel, move that notwithstanding the present stage they may be allowed to give further evidence.
  Mr. Wilkinson - Your Lordship has treated this application as a serious matter.
  His Lordship - Suppose you move to be allowed to blow your nose on a particular day; I do not see how, if a motion is made in the ordinary way any Judge would hear of it at the time.
  Mr. Wilkinson - Just so, no Judge would hear of it.
  His Lordship - But you must not suppose then that I treat it seriously. It is a motion, and the motion has come in and has to be heard.
  Mr. Wilkinson contended that the affidavit of the defendants' counsel in support of the application was irregular, inasmuch as it did not conform to rules 231 and 232 of the Orders of that Court. This application really amounted to a request by the defendants that judgment should not be given against them until they had had an opportunity of finding out whether there was not some more evidence in their favour.
  His Lordship - This is the only point of any real importance. There are cases where a new trial has been granted.  If a new trial could be granted on further evidence, plainly it would be a simpler thing to stop and let us have this additional evidence before giving judgment. If the circumstances in this case would justify a new trial, then I think it would be a reasonable application, and therefore I think what you have to meet is - Is this evidence such as would entitle them to a new trial?
  Mr. Wilkinson said there was no case showing a distinction between judgment reserved and judgment delivered.
  His Lordship - Yes, I think you are right there.
  Mr. Wilkinson said if such an application as the present one were to succeed it would be a most dangerous thing.
  His Lordship - Mr. Hanson, I think Mr. Wilkinson is right in regard to that. I do not see you can come here. You see, although I reserved judgment, I might have delivered it at the moment, and until I deliver judgment I am functus officio.
  Mr. Hanson - I thought it right to mention it.
  His Lordship - I do not like in a case of this sort, which is of great importance, that any motion should come before me and I should say, "I will not hear it," but I think Mr. Wilkinson is right, and the motion must be refused, with costs.


Source: North China Herald, 5 January, 1894

Shanghai, 4th January.
Before N. J. Hannen, Esq., Chief Justice.
  Judgment was given this morning in this suit, the hearing of which concluded on the 9th ult. In giving his decision,
  His Lordship said - In this case Ernest Major has presented a petition against Messrs. Jardin, Matheson & Co. alleging that he was  the owner and occupier of  a lot on land  on the south of the Soochow Creek; that the defendants falsely  and maliciously alleged that the plaintiff had no title to the land in question, and that the defendants during the month of October, 1889, and at various times since, broke and entered the said lot of land and trespassed thereon, and he prayed for a perpetual injunction restraining the defendants from continuing or repeating this trespass, and an order that they should remove certain pumping machinery and piping, and fill up a pond, at their own charge; for damages, and for such further or other remedy as the nature of the case might require.
  The defendants answered this petition, and the answer is so concise that I do not think that I can summarise it. They said:-
  As to the 2nd paragraph of the petition, the defendants deny that the plaintiff was at the time of the doing of the acts which the plaintiff calls committing of the grievances  in the petition mentioned, occupier of the lot of land the subject matter of this suit, and the defendants leave the plaintiff to prove the allegation, that he was the legal owner of the said lot of land and entitled to the foreshore rights, and they say that the northern boundary of their lot No. 1.292 is the south bank of the Soochow Creek along which there is a right of way for the public, and the land the subject matter of this suit is really the foreshore appurtenant to their lot No. 1,292.
  As to the 4th paragraph of the petition, the defendants deny that they ever broke or entered or trespassed upon any land of the plaintiff, and say that for a long time before and during and ever since the month of October, 1889, the defendants have been in possession of all the foreshore appurtenant to their said land.
  As to the 5th paragraph of the petition, the defendants deny that they ever alone or accompanied by their servants or workmen broke or entered on any land of the plaintiff or trespassed therein or thereon, but they say that they erected pumping machinery and dug a pond on the said foreshore and used the said pond and pumping machinery and laid piping from the said pond to a factory on their said property lot 1,292.
  As to the 7th paragraph of the petition, the defendants admit the truth of the statements therein contained, save in so far as such statements impute falsehood or malice, and they say that the words of the said John McGregor were spoken with reference to lands or premises to which he believed the defendants had a title and the plaintiff had not.
  It will not be necessary for me to deal at any length with most of the facts which I consider to have been proved before me with regard to these and I simply state shortly what I consider to have been established.
  The plaintiff has alleged, amongst other things, that he was the occupier of the land in question. I do not think that this has been established. He has also stated that the defendants falsely and maliciously alleged that he had no title to the said lot of land. The defendants, on the other hand, said that they did not falsely and maliciously make the allegation complained of, and they further said the words were spoken with reference to lands or premises to which they believed the defendants had a title and the plaintiff had not. I consider the plaintiff has not made out his allegation, but the defendants have made out theirs upon the point.
  I think it has been satisfactorily proved that the defendants did the things which are complained of at a time when the plaintiff had not, and does not claim to have had, any legal title, or to have been in occupation of the land in question. The land was, at the time the defendants first made use of it, the property of the Emperor of China.  I think there is sufficient evidence to show that what the defendants did, they did with the leave or license of the Chinese authorities representing the Emperor.
  It was shown that in the month of January, 1892, deeds were issued by the Taotai recognising one Vinzenzinovich as the renter of the land in question. It appears that Vinzenzinovich had applied for the title-deeds on behalf of the plaintiff, and we have it in evidence that he subsequently transferred this land to the plaintiff.  This transfer has been sent in to the Taotai for his endorsement, and so far as I know this endorsement has not been made and the title-deeds remain in the custody of the Taotai. So far I have dealt more particularly with the allegations in the petition and answer, and I now come to the general testimony of the case as proved before me during the trial.
  It seems that one Frederick Major sold to Jardine, Matheson & Co. a lot of land, registered in the British Consulate-General as lot 1,292. This lot of land he acquired from Chinese, and when he acquired it he was under the impression that its northern boundary was the Soochow Creek. When the Chinese papers were sent into the city for the purpose of obtaining a valid title-deed, the northern boundary, which had been described in the application as the "Soochow Creek," was altered by the Chinese authorities to the "edge of the road on the Soochow Creek." Frederick Major, therefore, had a title-deed which described lot 1,292 as bounded on the north by the road on the edge of Soochow Creek. This lot, together with any rights attaching to it, he sold to Jardin, Matheson & Co. At about the time of the sale, and before the actual transfer in the books of the Consulate-General, Jardine, Matheson & Co. had notice that some Chinaman made claim to the foreshore between lot 1,292 and the creek.
  It does not appear in evidence when this claim was brought to the notice of the defendants but it does appear from the evidence of Messrs. Ward and Herbert Smith that they were aware of the claim many years ago, and long prior to the acquisition of any title by the plaintiff. Jardine's seem to have treated this claim as unsubstantiated, and I believe they have been throughout under the impression that between their lot and the Soochow Creek there was nothing but the road and foreshore.  A Chinese, who had nothing whatever to do with lot 1,292 claimed to be the owner of land on the north side of the road which bounded lot 1,292 and to be entitled in right of that land to any accretion between it and the Soochow Creek. These rights he transferred to another Chinaman and this second Chinaman has transferred them to Ernest Major.
  I pause here to point out that Ernest Major is a different person from Frederick Major, who transferred lot 1,292 to Jardine, Matheson & Co. It seems to be the law that owners are entitled, upon certain conditions, to any accretions to their land. Until certain formalities are gone through these accretions are the property of the Emperor of China, until the owner of the land who holds under the title-deeds, who are known as the tie-taus or fung-taus, presents a petition asking that these accretions may be shenkoed - that is placed on the register and made liable to land tax. Unless there is some special treason against it, the authorities permit this to be done, but as far as I know, the owner of the tie-tau land has no absolute right to have his land put upon the register and recognised as his own, but up to the time when this shenko land is placed on the register it remains the property of the Emperor of China.
  The Chinese owner seems at some point prior to January, 1892, to have applied for the foreshore to be shenkoed. The application was granted, and he appears to have conveyed to Ernest Major all the rights to land between Soochow Creek and the road which was the northern boundary of lot 1,292. Now, the ordinary course for a British subject who has acquired land from a Chinese subject is for him to bring all the necessary documents to the British Land Office and ask them to obtain what is commonly called the taotai's deed. This course the plaintiff's agent did not adopt, but for some reason, variously stated as the dilatoriness of the Land Registry Office or their bias in favour of Jardine, Matheson & Co. he went to the Austro-Hungarian Consulate.
  It is only fair that I should point out that practically the whole of the land-renters whose land is registered at this Consulate have been so well satisfied with the gentlemen in charge of the Land Office up to the autumn of 1892 that it was urged on Mr. O'Connor to allow either of the gentlemen who had been in charge to remain there as long as possible. This is a matter of common knowledge, for it was noticed at the time in the newspapers when Mr. O'Connor was passing through in 1892; but these gentlemen were, in the opinion of the plaintiff's agent, either too dilatory or too biased to carry through the transaction.
  This, in my opinion, was the cause of the dispute and litigation in this case. Had Mr. Findlay applied through the Consulate and had the Taotai send out the deed, Messrs. Jardine, Matheson and Co. would probably have urged all that they have urged before me as a reason why the Taotai should grant them a title-deed. It would not have mattered very much to either of them whether the title was granted to Mr. Major or to them, because whenever land owned by a foreigner is shenkoed the owner of the tie-tau has to pay the market value of the land, so that from a pecuniary point of view, presuming that the plaintiff would have asked only the fair market value, they would have been able to acquire it through the plaintiff at about the same price as, and at less trouble than, through the Taotai. I am not astonished the defendants were annoyed at this proceeding; they thought - and the majority of people will think - that this was an underhand way of acquiring a title, although Mr. Findlay has said he saw nothing underhand in it.  I cannot help thinking that Mr. Findlay went to the Austro-Hungarian Consulate because at that Consulate nothing was known of Messrs. Jardine, Matheson's claim, and he did not come to this Consulate because that claim was known, and Messrs. Jardine, Matheson's view, as well as the plaintiff's, would have been laid before the Taotai.  I have encouraged, and as far as I could endeavour, to facilitate an amicable settlement, but both parties have insisted on having their legal rights, and they must therefore have them.
  What are the legal rights of the plaintiff?  I must first deal with the question which is at the foot of the case. Is the plaintiff the legal owner of this lot of land?  He holds it under a title-deed issued by the Taotai and he gets the Taotai to produce for the information of the Court a title-deed issued through the Austro-Hungarian Consulate to be handed to the Austrian subject Vinzenzinovich. From an inspection of the deed and reading the deed itself and the despatches which accompanied it, this appears to be clear - That a Chinese subject sold this land to Major, that Major forwarded it to Vinzenzinovich, and that a deed recognising Vinzenzinovich as the owner of the land is sent to the Austro-Hungarian Consulate to be given to Vinzeninovich; and it appears that the land officer of the Taotai examined the documents on which the title-deed was founded and found them in order. It appears also that the Taotai recognises that the plaintiff was at one time the owner of the land and issues the deed to Vinzeninovich recognising him as the legal owner at the time of the issue of the deed.
  I am of opinion that the Taotai's deed must be taken as conclusive evidence that the person named in the deed is the legal owner of the land to which the deed relates. All land in China is supposed to belong to the Emperor; his delegates certify that a foreigner has become the renter in perpetuity of a particular lot of land named in the deed. The foreigner has acquired it from the fountain-head, and unless there is fraud alleged we cannot go behind it, and I am not sure that even the allegation of fraud would entitle the Court to go into the title of the Chinese owner. For the purposes of this suit it is not necessary to go into that, because no fraud has been alleged or suggested. To hold otherwise would be to unsettle the title to every bit of land in the Settlement. The Taotai's deed must be taken as conclusive evidence, and we cannot go behind it.
  We start then from this, that Vinzenzinovich had in the month of January, 1892, a legal title to the land in dispute. It has been proved in evidence, and in fact it is not denied, that Vinzenzinovich transferred his rights in this land to the plaintiff, but the defendants contend that inasmuch as this transfer had not been concurred in by the Taotai the legal ownership is not in Major. I think this contention is quite untenable. The only foundation for it is a clause in the title-deed which shows that if Vinzenzinovich makes over his interest without reporting it for the joint assent and concurrence and for the due registration, &c. the deed shall be null and void. Once Vinzenzinovich has reported the transfer he has done all that he has to do, and whether the Consular and Chinese authorities ultimately concur or not, the deed does not become void, and Vinzenzinovich was the legal owner of the land. What effect the withholding of the Taotai's concurrence has I do not know, but it certainly can have no effect upon a transaction that was completed before he was asked to give it; so I hold that Vinzenzinovich was at one time the legal owner and that he has transferred the legal title to the plaintiff.
  The plaintiff then is in my opinion the legal owner of this land, but he has not been in possession of it. The plaintiff says the defendants have trespassed on land in his occupation, but I am quite clear that this land has never been in the occupation of the plaintiff, and the right of action for trespass to land has always been founded not on title but possession. The defendant then, in my opinion, did not commit what is legally termed trespass to land.  Can I then comply with the prayer of the plaintiff to enjoin them not to repeat or continue a thing which I do not think they ever did? I do not think that I can grant the plaintiff the specific remedy which he asks. Then he prays that the defendants may be ordered at their own expense to remove the pumping gear which they have placed on the land, and fill up a pond they have dug upon it. As to this, I think the pond was dug and the pumping gear placed long before the plaintiff had any title to the land, and from the long lapse of time through which it remained there without any complaint.  I come to the conclusion that all was done with the leave and license of the true owner. I think therefore that I cannot grant the plaintiff this specific relief.
  As to the damages, from what I have said it follows that there was not a breaking and entering of land in the possession of this plaintiff, and there was no malicious slander of the plaintiff's title. There can therefore be no damages.
  But the plaintiff also prays "for such other relief as the nature of the case may require," and by Rule 33 of our Rules of Procedure the plaintiff is entitled to "any such equitable relief as he may appear entitled to from the facts stated and proved, though not specifically asked, if it may be granted without hardship to the defendants." Here the plaintiff has stated, and in my opinion proved, that he is the legal owner of the land in question. The defendants came to Court prepared to, and did, contest this point. It is no hardship on them to grant such relief as the plaintiff may be entitled to from the fact stated and proved - that he is the legal owner.
  It is not for me to say what other relief the plaintiff wishes. I shall therefore declare that the plaintiff is the legal owner of the land in question, and give him leaver to move the Court for such relief as he thinks himself entitled to.
 As to costs, the plaintiff has not succeeded in obtaining any specific relief which he asks, and the defendants have failed in what is the main question at the bottom of the suit. The parties should therefore, in my opinion, be left each one to pay his own costs, except where costs have been in interlocutory motions specifically given.


Source: North China Herald, 12 January, 1894

Before N. J. Hannen, Esq., Chief Judge
  This case, in which judgment was delivered on Friday, again came before the Court, the defendants complaining that the plaintiff's agent had erected fences around the land, and asking that he should be restrained from doing so and interfering with the water-supply to the filature until an order was made granting possession of the land to the plaintiff.
[Not transcribed.]
His Lordship - I do not wish to make any comments upon the conduct of the parties. As I said they both insisted upon having their strict legal rights, and they must therefore have them.
  With regard to this motion, it is an application that I should restrain the legal owner of the property from putting up fences or other obstructions on the land and restrain him from keeping thereon any fences or other obstructions which he may have already erected on or around the said land.  This mere statement of it seems to me to be sufficient to show that I cannot do it. I do n not think I have the power nor ought I to make the order asked for. The simple judgment of the Court upon the motion is that it is refused, with costs.
  Mr. Wilkinson - I am instructed to say that if the defendants want a reasonable time, they can come to us and arrange about it.

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