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Colonial Cases

Lok Fook-Tsuen and Chuin-Tsuen v. Municipal Council for the Foreign Settlement, 1899

[land law]


 

Lok Fook-Tsuen and Chuin-Tsuen v. Municipal Council for the Foreign Settlement

Court of Consuls, Shanghai
Goodnow, Brenan and Knapfe, 11 January 1899
Source: North China Herald, 23 January, 1899


 

THE COURT OF CONSULS.

(HOLDEN AT THE U.S. CONSULATE-GENERAL.)

Shanghai, 11th Jan., 1899.

Before Mr. John Goodnow, U.S. Consul-General, presiding, and Mr, Byron Brenan, C.M.G., and Dr. Knapfe, British and German Acting Consuls-General respectively.

LOK FOOK-TSUEN & E. CHUIN-TSUEN v. THE MUNICIPAL COUNCIL for the Foreign Settlement, north of the Yangkingpang.

SECOND DAY.

On returning on the second day some delay was caused by the absence of the tipao whose examination on the previous day had not been concluded. In his absence, Mr. Goodnow said - What do you propose to prove, Mr. Dowdall?

   Mr. Dowdall - The only extra thing he can say is that the boundary stones were there.

   Mr. Goodnow - That is immaterial. The court considers the substance of this case is the priority of the title deeds, and the thing we have to decide is whether title deed 760 registered in the British Consulate covers the same ground as lots 708 and 714. The Court has the Taotai's deeds and it seems to me that it is very simple to confine this case to the argument or consideration of the question whether the deeds of the land you claim cover lot 767. If they do so, then the question of priority will govern.

   Mr. Dowdall - The only other witness I have is Mr. Dallas and he has at the present moment gone to look for the Chinese.

   Mr. Goodnow - I don't think as yet you have put in the Consular deeds which will cover the ground.

   Mr. Dowdall - Well, I will do so now.

   Mr. Goodnow - It has not been brought to the satisfaction of the Court that ground is actually covered by these deeds. You understand this deed better than I do, but I should like some explanation as to the boundaries of the land.

   Mr. Dowdall. - I am going to examine the engineer who surveyed it and I hope he will satisfy you. I have no doubt all the documents are in Mr. Dallas' box. Do I understand that the whole question rests on these titles?

   Mr. Goodnow - If it can be shown that these deeds cover the same ground then, as I said before, the question of priority will govern.

   The ex-tipao was then recalled and further examined, his evidence, as before, being translated by Dr. Hykes.

   Mr. Goodnow - To save time kindly keep the witness to the actual ground covered by these deeds.

   Mr. Dowdall - We got yesterday as far as he said he was tipao for many years, and now the only question is about the identity of the ground. Does, he know, of his own knowledge, whether the Municipal Council had ground in the locality under notice?

   Witness - I know of my own knowledge that these deeds belong to the Municipal Council and relate to land sold many years ago. I have heard this land spoken of as Municipal Council land at divers and sundry times and have seen the boundary stones.

   Mr. Goodnow - What land does he mean; the Rifle Range?

   Witness - the piece of ground to the north end of the Rifle Range east of the Woosung Road. That is, in order to get to it you must be in the locality of Sungkaway. I am uncertain whether it is 108 or 109 and  the name on it is Sung Ming-chow.

   Mr. Dowdall - The fangtan produced yesterday he says he has not seen?

   Witness - I remember the number now, it is 109, and the name on the fangtan is Sung Ming-chow.

   Mr. Dowdall - Let him look at the lot and see if he can identify them with the Council's land now.

   Witness - it is somewhat difficult as it is not the whole fantan. It is only a fragment and, other characters having been filled in, I find it very difficult to speak definitely or to answer your question.

   Mr. Goodnow - We understand from the Chinese deeds that the fangtan came from a man named Fei kuei-hsing who was the seller.

   Mr. Dowdall - Who has paid the land tax? Has it been foreigners or Chinese?

   Witness - I do not know who paid it, or whether it had been paid or not.

   Mr. Goodnow - He says he knew about some stones which had been placed there. Did he ever go on this piece of land himself?

   Witness - I have seen them myself some years ago. I went to the place and saw them myself.

   Mr. Goodnow - Have you been there lately?

   Witness - I was there three or four years ago.

   Mr. Goodnow - How were they marked?

   Witness - I saw the boundary stones with foreign letters on them but what the foreign letters were I don't know.

   Mr. Goodnow - How many boundary stones did he see? - I saw two near the road. There may have been others, but I did not notice specially.

   Mr. Goodnow - At the entrance to the Rifle Range on this disputed ground is that what is meant? - The two I saw were located where the Rifle Range Road is now.

   Mr. Goodnow - They were not at the back end of the Rifle Range? - No.

   Mr. Phillips - By what Chihsien were you made tipao? - His name was Moh, but I did not have any written authority over my district.

   Mr. Phillips - You had no written authority appointing you tipao?  Did you ever have any authority? - According to the custom, of that district there has never been any authority.

   Mr. Phillips - Is it only from hearsay that you heard these two plots in dispute belonged to the Municipal Council? - I only heard they belonged to the Council. That is all.

   Mr. Phillips - That piece of ground to the north numbered 714 and the piece of ground to the south numbered 708, did they formerly belong to a woman named Shen?

   Mr. Goodnow - Whatever is that going to lead up to?

   Mr. Phillips - I think it is important?

   Mr. Goodnow - We don't.

   Mr. Phillips - With regard to fangtan number 109 will he show what area the Municipal Council hold under that fangtan? - I want to know what area is covered by that part of the fangtan?

   Mr. Goodnow - Does the witness know whether any piece of ground has been granted to the Municipal Council under fangtan 109? - I do not know.

   Mr. Goodnow - We can easily get it.

   Mr. Phillips - I thought it was produced.

   Mr. Goodnow - Here are two pieces of fangtan covering about three quarters and there is about a quarter missing.

   Mr. Brenan - Do you know in whose possession the property represented by the missing piece of the fangtan is now? - I do not know. There were then four boundary stones on this piece of ground, two at the north and two at the south and since 1876 I was continually at work on the Rifle Range and could give you, if you like, particulars of the time I was there. In 1876 I first went there and saw the four boundary stones, and in 1886, 1887, 1888, 1889, 1893, 1894, and subsequently I was often there and have a perfect knowledge of the ground.

   Mr. Arthur Dallas, called and examined by Mr. Dowdall

   You are a civil engineer, Mr. Dallas? - Yes.

   You have been in the Council's service since when? - I entered the Engineer's Department of the Municipal Council in 1876 and I resigned early in 1898.

   Will you state to the court your experience in examining Consular and Chinese title deeds with regard to land? - I have had considerable experience in land business in Shanghai. For nearly 25 years nearly all the land business of the Municipal Council passed through my hands. In addition, I conducted the inspection of all the land in Hongkew Settlement, a work of great difficulty, and examined into all the Consular title deeds.  I spent many years over the work of inspecting the Consular Registrars of the title deeds of all the land in the Hongkew Settlement prior to the date of the issuing of the official plan.

   What do you say about the identity of lot 767 British Consulate and lots 708 and 714 American Consulate? What is your opinion? - The first time I inspected this was in 1876.

   The President - When you first saw it who was in occupation of the piece of land?

   Mr. Dallas - It was vacant, but the stones marked S. V.C were on it and they remained there for very many years. I am not sure but believe Mr. Prevost bought this piece of land on the plan, an oblong piece and his door at the back entrance cane just to the boundary stone, where there was a heap of ashes. Another boundary stone on this end disappeared. The two northern boundary stones were always there.

The President - What about those two southern boundary stones?

   Mr. Dallas - One of them is still there; I unearthed it myself about 1 ½ years ago.

   Mr. Dowdall - Has any part of the Range ever been fenced in?

   Mr. Dallas - Yes, Mr. Pike got permission to fence in a piece on the north, permission from the Council; he was allowed to fence in about a third.

   The President - When was that?

   Mr. Dallas - About '92 to the best of my knowledge.

   The President - It could not have been '95?

   Mr. Dallas - No '9 or ;83, one of those two years.

   Mr. Dowdall - Is the fence still standing?

   Mr. Dallas - No, it was removed a few months ago, when the tenant of Mr. Pike's house moved further down the Range.

   Mr. Dowdall - Did anyone want to make a rod across?

   Mr. Dallas - Yes, Mr. Goodfellow, but the Council would not give him permission.

   The President - When was that?

   Mr. Dallas - Before 1892 or about that time.

   Mr. Dowdall - How does it stand now about the fence?

   Mr. Dallas - The two pieces are entirely fenced in by the Municipal Council.

   Mr. Brenan - In what year was the fence put up?

   Mr. Dallas - I am not sure, but I think in 1897.

   The President - The correspondence says it was very recently put up.

   Mr. Phillips - Yes, it was in 1897.

   Mr. Dowdall - What do you say about the identity of that piece of land, and how do you make out the title?

   Mr. Dallas - First of all. This particular piece of land I have traced back originally belonging to Shen Ming-chia, and when he did it was sold by his widow to Sir Walter Medhurst, who was then British Consul in Shanghai. That was in 1862 and the bills of sale were made out in Sir Walter Medhurst's name.

   The President - Those title deeds covered the entire piece of ground?

   Mr. Dallas - Yes, I should day so.

   The President -  More or less?

   Mr. Dallas - More, I should say that is the title deeds of Shen's land and others.

   The President - How much more? Give me an iodea.

   Mr. Dallas - This particular title deed takes in an oblong piece and comes up 175 feet.

   Mr. Dowdall - Is there anything more you know to show the identity of the title deed?

   Mr. Dallas - I should further say that at various times I have by orders of the Municipal Council consulted all the tipaos of different periods as to whether it belonged to the Municipal Council or not.

   Mr. Phillips - I submit that though this may be very interesting, it is not evidence.

   Mr. Dowdall - And does Mr. Drummond claim any of that land?

   Mr. Dallas - Two Chinese claim in the north and south.

   The President - The title deed of Mr.  Drummond is comparatively recent, is it not?

   Mr. Dallas - It was always acknowledged by the tipaos to belong to the Municipal Council.

   The President - Did anyone else ever lay claim to it to your knowledge?

   Mr. Dallas - No, they never did.

   The Present - You said Mr. Pike about 1892 obtained permission to make a fence? - Yes.

   How, verbally? - Yes, from Mr. Thorburn.

   Mr. Phillips - Did this gentleman hear Mr. Pike make his application about this fence?

   Mr. Brenan - Has Mr. Pike any property in the neighbourhood?

   Mr. Dallas - Yes, the adjoining lot 452 A belongs to the estate of the late Mr. Pike. 453 belongs, I think, to Mr. Samuel Clarke, and 475 and 453 originally belonged to an American citizen named Benson, and are now owned by A. J. How. They are all registered in this Consulate.

   Mr. Dowdall - Is there anything about the description of these boundaries in the title deeds? - Yes, in one deed, this particular land is referred to as belonging to Alabaster, as Hon. Sec. of the Volunteers.

   Mr. Dowdall - How did you find that out?

   M r. Dallas - I inspected all the land registers, title deeds, and Chinese and foreign documents in the Consulates and I could not trace that fangtans were ever asked for or enquired about, on sale of lands to foreigners, at any foreign Consulate; not to the year 1874 - at the British Consulate about that at this, American, a little later. Previous to this date it was never customary to produce fangtans at a foreign Consulate.

   Cross-examined by Mr. Phillips - When did you leave the service of the Council, about a year apo.

   Mr. Dallas - Yes.

   Mr. Phillips - So that you were in the service of the Municipal Council when these schedules of '90, '92, and '97 were compiled.

   Mr. Dowdall objected to this line of cross-examination.

   M. Phillips put in the schedule of 18090 and 1892.

   The President, to witness - Did you prepare that yourself?

   Mr. Dallas - Yes, practically.

   The President - And did you send it out with your approval as Assistant Engineer?

   Mr. Dallas - It did not require my approval. It was not final.

   Mr. Phillips - And you practically prepared it?

   Mr. Dallas - Yes.

   Mr. Phillips - You have just said something about the care with which you produced the consulate lots?

   Mr. Dallas - Yes, in one case the Consular and cadastral lots are not identical.

   Mr. Phillips - Will you please refer to cadastral Lot 475. You heard the evidence given yesterday that in 1890 and 1892 these lots were in the schedule as appropriated land. How do you account for that?

   The Present - The fact speaks for itself, Mr. Phillips. It is in the schedules.

   Mr. Phillips - I know that but as it is there described as unregistered land I thought that Mt. Dallas might be able to give some explanation. Lot 7098, Cadastral lot 475, which is the lot in dispute. I refer you, Mr. Dallas, to lot 453; why was this lot in dispute then referred to as unregistered land in these schedules.

   The witness did not reply.

   The President - The fact speaks for itself. We do not care to go on any further with this point.

   Mr. Phillips - Apparently no explanation has been given of that and I therefore think it is necessary for me to put these questions. Is this the plan of 1896, Mr. Dallas? How do you account for these two lots being described as unregistered, and now say it forms part of lot 476?

   The President, to witness - Did you prepare that plan?

   Mr. Dallas - Not exactly in that form.

   The President - Was it based on your work? - Yes.

   The President - Is it a tracing of your plan?

   Mr. Dallas - Yes, but it only shows the Ranges.

   The President (examining the map of 1897) - There is an alteration here.

   Mr. Dallas - The Range was then closed as a Rifle Range.

   Mr. Phillips -  What is the area of lot 760 there - is it mow 6.0.9.0? Is that now cadastral lot 478?

   Mr. Dallas - Yes, it is a little in excess of the title deed which is mow 6.2.1. I make it up as follows: The strip to the south of the Range mow 2.6.1.5; to the north of the Range mow 2..0.8.8; and the area of the Riffle Range between the two strips, and included on lot 81 U.S. Consulate mow 1.5.6.7., making a total about 6.2.1.

   Mr. Phillips - What becomes of the strip  that belongs to the piece on the west?

   M. Dallas - I have given you the area of that strip; west of lot 767 is the portion of the Range included in lot 172 U.S. Consulate. It is not included in any cadastral lot because it is land in public occupation which we never included.

   M r. Phillips - Does that red mark on the plan show the boundary of cadastral lot 476?

   Mr. Dallas - No, nothing at all.

   Mr. Phillips - Tel,l us, Mr. Dallas, what then does it mean?

   Mr. Dallas - it is simply copied by a mistake of the tracer. It has no meaning.

   The witness was further pressed to explain the meaning of the red mark on the plan but did not give any direct answer.

   The President - Would it not be wiser to take the four deeds covering the Rifle Range and also the map and then divide the map up into the land covered by these four deeds?

   The witness explained on the map what the four deeds covered.

   Mr. Phillips - You say now that it is covered by four title deeds.

   Mr. Dallas - As a matter of fact it is covered by five title deeds, but the fifth does not belong to the Municipal Council.

   In reply to the President Mr. Dallas repeated that the fifth title deed covering the Rifle Range did not belong to the Municipal Council.

   The President - The title deed dated August 17th, 1895, does not belong to the Council?

   Mr. Dallas - It was probably an encroachment on Mr. How's land. It was probably done with his consent.

   Mr. Phillips - You say the area according to this plan was 23 mow, 8 fun, 0 li, 7 haou.  I want the three title deeds and the area covered to be added up.

   The President - When was this submitted?

   Mr. Phillips - In 1892.

   The President -  these three title deeds are for 24 mow, 7 haou?

   Mr. Phillips - The area of the title deeds is mow 23.9.0 exactly tallying with these measurements.

   The President (to witness) - Can you figure from the map the exact area of these pieces and the long narrow strip?

   Mr. Dallas - What is the scale?

   The President - This deed is 1892 and this plan 1895. Then the property in this deed is not in the plan??

   Mr. Dallas - Yes, it is.

   Mr. Phillips - Does that account for the difference in the actual plan and the area as given in the adastral title deed?

   The President - Do you mean this property in the plan of 1895 is in fact that of 1892? - Yes.

   Mr. Brenan - How is that?

   Mr. Dallas - The Council are in possession of a good deal of property in the Settlements for which they have no title deeds.

   Mr. Phillips - The Council are in possession of a good deal of property for which they have no title deeds? That is a very dangerous position.

   Mr. Dallas - Yes, it is so, I say it advisedly.

   Mr. Phillips - The first title deed is for 10 mow - is that the Bund?

   Mr. Dallas - No, it has nothing to do with the Bund.

   Mr. Phillips - Then what part of the Range is referred to in that deed?

   Mr. Dalllas - Lot 548 represents the land between the Butts and lot 72 U.S. Consulate.

   The President - I want Mr. Dallas to give us the plan prepared by him, showing what is really covered by the different title deeds.

   Mr. Dowdall - Mr. Dallas will do his best. Please do that for us Mr. Dallas.

   The President - Your property is under five different title deeds, Mr. Dowdall?

   Mr. Dowdall - I only found out this morning that a portion of the Rifle Range is covered by a fifth title ded which does not belong to us, and the owner either gave it up to us for that purpose, or we had his permission.

   Mr. Phillips - Is it correct to state that Lot 767 is an oblong piece of land?

   The President - He need not answer that.

   The further hearing of the case was adjourned till Thurssday morning.

THIRD DAY.

Thursday, 12th January.

 

Source: North China Herald, 23 January, 1899
 

THIRD DAY.

Thursday, 12th January.

   On the Court resuming Mr. Dowdall said that Mr. Dallas, who was under re-examination when the Court rose, on the previous day, had a correction to make in his evidence.

   Mr. Dallas - Yes. I should have said that the fence put up by Mr. Pike was put up in 1895 and not in 1894. When I was making the survey for the cadastral plan of 1893 I did not know whether the mowage of the title deeds would cover the 40-foot Range and also the protruding ends of the oblong lot 767; my doubts were not as to the real area of the Council's land, but as to the accuracy of the Chinese measurements in former time.  The width of the Range being important, and the boundary stones clearly showing the extent of lot 767 I decided to leave it, for the time, an open question whether the ends should be sacrificed to the area of the width of the Range. When I found that the 40-foot Range and the protruding ends of lots 767 were fairly covered by the title deeds area, I marked them in as the Council's property. The Council never authorised the exclusion of them.

   The President - As I understand it you included these pieces in lot 767 because the Council's title deed covered more than the Range?

   Mr. Dallas - What I said was that when I made the survey I did not know that the mowage would cover the entire Range and the oblong piece 767 as well.

   The Present - Then if it had not covered more than the red strip in the plan this would not have been claimed by the Council?

   Witness did not reply.

   Mr. Brenan - Did you not say that if it was necessary you were going to sacrifice these wings in order to get your Range complete?

   The witness entered into an explanation of the plan which was only audible to the members of the Court.

   The President - I understand from what you have said that this title deed is not for a specific piece of land but for a piece somewhere near the Range?

   Mr. Dallas - I did not say that.

   Mr. Goodnow - Then as I understand it the entire Rifle Range is marked on here from Woosung Road and including the Butts? - Yes.

   Mr. Goodnow - This is an official plan? - Yes.

   Mr. Goodnow - It comprises Lots 548, 766 and 767? - Yes.

   Mr. Goodnow - Then this plan is wrong? - Yes.

   Mr. Goodnow - It is measured wrong? - Yes.

   Mr. Goodnow - Then in May 1892, when it was made the Council did not own this piece, although it is included in the plan and they have never owned it and never did own it, although it is marked on the plan? - Yes.

   Mr. Goodnow - I am bound to say I cannot understand it, why if the Council did not own this little piece of land down at the end here it should be put in here in an official document filed in the British Consulate as covering these lots. Then Mr. Dallas, this official document filed in the British Consulate is wrong? - Yes.

   Mr. Goodnow - As a picture it may be right but as an official document it is all wrong? - Yes.

   Mr. Phillips - How is the lot 766 described in the plan and schedule of 1892 and 17898? - I don't know.

   Mr. Phillips - Come Mr. Dallas, you know all about these matters. You know more about it than anybody else in Shanghai you say. Do you meant to say it is shown in the assessment schedule and the plan accompanying is as lot 766?

   Mr. Brenan - Is it not better to refer to the schedule itself instead of to Mr. Dallas' memory?

   Mr. Phillips - The schedules and plans are not forthcoming, but you Mr. Dallas were in the employ of the Council in 1892? - Yes.

   Mr. Phillips - Well I will refer you to the letter of the 7th of June,1892, written to Mr. Brown the British Vice-Consul. Do you remember the circumstances? - Yes.

   Mr. Phillips - Well is this the plan? -  Yes, that would be it.

   Mr. Phillips - Do you repudiate that altogether now? Do you say that the plan is a correct one and that the boundary stones which were laid down there were incorrectly placed? - No, the boundary stones were already there.

   Mr. Phillips - You were responsible for that plan at that time and for the definition of the boundaries of the Rifle Range? - It was not a final settlement.

   Mr. Phillips - You now state that was not a final settlement. Is that what I understand you to say? - Yes.

   Mr. Phillips - In what respect was it not a final settlement? What was the mistake? - Well it was made for the purpose of investigation.

   Mr. Phillips - For investigation by you and the Taotai's deputy? Did you not arrive at the conclusion which is expressed upon that plan? - I was not running the business.

   Mr. Phillips - You were present. Did you not record any disapproval until this morning or say the plan was erroneous? - That surely is a plain question? - The pan has never been brought to my notice.

   Mr. Goodnow - You can answer Yes or No. Mr. Dallas. - I cannot answer it exactly.

   Mr. Phillips - Have you ever from that day until now expressed your disapproval of that plan or said it was erroneous? - I can state now that it is erroneous as represented here.

   Mr. Phillips - I suppose you are a man of common sense, and I ask you for a plain answer to my question. Do you refuse to answer?

   Mr. Goodnow - I think he has answered and the statement is recorded that the plan is erroneous.

   Mr. Phillips - I am asking you if you have ever disapproved of that plan? - I have stated the plan as represented here is erroneous.

   Mr. Goodnow - Have there been any modifications of this plan recorded at the British Consulate? - No.

   Mr. Phillips - Is it in the archives of the Municipal Council? Because now you make a distinct difference between lots 766 and 548. Is not the latter marked on the plan as lot 766? - Yes.

   Mr. Phillips - How can you account for the difference? With regard to the red mark you now state that it is the mistake of the man who made the tracing? - Yes.

   Mr. Phillips - Is there a plan in existence on which this red mark appeared? - This is a copy of the original plan.

   Mr. Phillips - You say this mark was put on the plan by the mistake of the tracer? -  Yes. I did not intend them to be put in the cadastral plan.

   Mr. Phillips - These lines you say were put in by mistake? - I wish to be perfectly candid. They were, but these lines agree with the area in the schedule.

   Mr. Phillips - These lines mark the boundary 767??

   Mr. Goodnow - What he says is that they mark an equivalent space.

   Mr. Dallas - The cadastral plan as you know is for the purposes of taxation but the Municipal Council pay no taxes on their property.

   Mr. Phillips -  You say this particular part belonging to Mr. How is not included in the title deed of the Rifle Range? It stretches right across the Range? - Yes.

   Mr. Phillips - I call for the title deed.

   Mr. Dallas - We have not got it.

   Mr. Goodnow - It is not a question of confusing any body and it is not a question of concealing anything on the part of the witness; all that we want and all that we are anxious is to arrive at the exact facts of this case.

   Mr. Phillips - Will you take this schedule prepared by you or by your authority. Lot 172 registered in the United States Consulate is here? - Yes.

   Mr. Phillips - What are the boundaries of that lot? - These are not title deed boundaries.

   M. Phillips - Mr. Dallas I am asking you for the boundaries of that lot, as stated by you in the schedule? - The cadastral lots show the area for taxation.

   Mr. Goodnow - These are cadastral lots, not owners' lots.

   Mr. Phillips - Cadastral lot 172 is registered in the United States Consulate and shown 453 in the schedule, the northern boundary is stated to be lot 476?

   Mr. Goosnow - The witness stated this is the title deed and on this plan prepared by his authority shows the boundary to be the Rifle Range.

   Mr. Dallas - They only change on the area.

   Mr. Goodnow - And taxes are not charged on this piece here because the Council have absorbed it? - Yes.

   Mr. Phillips - Now with regard to the boundary stones, were they placed in the presence of the Taotai's deputy and in your presence? - Yes.

   Mr. Phillips - And at the time you sent in this plan with this red mark showing the area comprised in lots 548, 766 and 767? - Yes.

   Mr. Phillips - And these stones were placed to mark the boundary covered by these lots? - Stones had previously been put down in 1887.

   Mr. Goodnow - Stones were put down to fill up the vacancies marking as you say the boundaries of the three lots. Now do we understand you that lot 766 includes this piece which does not belong to the Council and still another piece which has come in since 1892? Yes.

   Mr. Godnow - So that this plan as a document is entirely inaccurate? - Yes.

   Mr. Brenan - As a picture it is correct? - Yes.

   Mr. Goodnow - As a picture of the Rifle Range merely it is accurate, but as regards a description of this Settlement where the stones mark the Municipal property it is wrong, and the stones placed in his presence and under his supervision are placed wrongly. You now say that these two stones instead of marking the boundaries of the lot simply mark the boundaries of the Range itself? - Yes.

   Mr. Goodnow - Mr. Dallas now says that as a Setttlement plan this is wring or in other words that as an official document it is nothing.

   Mr. Dowdall - Did you understand when that plan was made that they were dealing with any property except the Rifle Butts? - No,

   Mr. Dowdall - No other property was considered? - No.

   Mr. Dowdall - Now you say after re-measurement you found that the title deed area covers the whole of the forty feet and also the end of this lot 767? - Yes.

   Mr. Goodnow - Do I understand that the title deed area having been found insufficient to cover this  they preferred to take a piece somewhere else? In fact that they had to take something.? It was a sort of exchange for this piece.

   Mr. Goodnow - Do I understand that the area not covering a specific piece of ground they took from here? - They exchanged this for that.

   Mr. Dowdall - Do you know this photograph of the land? - Yes, it was taken by Mr. Sampson.

   Mr. Goodnow - As soon as we heard of Mr. Drummond's application for title deeds this photograph was taken.

   Mr. Goodnow - Have you any objections to it being put in Mr. Phillips?

   Mr. Phillips - No.

   Mr. Goodnow - It shows the boundary stones standing up? - Yes.

   Witness proceeded to explain the boundaries on the map.

   Mr. F. A. Sampson called and examined by Mr. Dowdall.

    Mr. Dowdall - What is your profession?

   Mr. Sampson - Assistant Surveyor in the Surveyor's Department.

   Mr. Dowdall - Will you tell the Court what you know about these photographs (produced).

   Mr. Sampson - In 1890 and 1892 I assisted Mr. Dallas in the delineating of the Hongkew boundary line which runs up to lot 767 which was the Seward line and whilst surveying along that line I occasionally and often saw these stones (in the photograph). I have a distinct recollection of the two stones marked with the letters S.V.C. and M.C. defining the northern boundary.

   Mr. Phillips - Did you see these stones put down Mr. Sampson? To the best of my recollection, no.

   Mr. Phillips - Did you see them just after they were put down?

   Mr. Sampson - No.

      Mr. Phillips - Have you been on the Rifle range since?

   Mr. Sampson - Often.

   Mr. Phillips -  Were they put down by Mr. Dallas' authority?

   Mr. Sampson - I do not know.

   The President - You say you noticed two boundary stones in the north part of this lot in dispute.

   Mr. Sampson - Yes.

   The President - And did you see any boundary stones on the southern boundary?

   Mr. Sampson - No.

   The President - How far is this ground from Woosung Road?

   Mr. Sampson - I would not like to say from memory.

   The President - What I am getting at is how did you know these stones are in this particular lot?

   Mr. Sampson - Because I photographed them afterwards.

   The President - Try and locate them by some other object.

   Mr. Sampson - They are about 120 yards to the north of the houses. The late Mr. Pike's property had a boundary wall running out to the west, and one of the stones was up against that boundary wall, and his door was alongside the footpath.

   The President - Did you have anything to do with the making of this plan?

   Mr. Sampson - No.

   Mr. Dowdall - I was going to call a gentleman from the Municipal Council to prove that when the Council sent the letter to Mr. Drummond about this lot of land they did not know where the lot was.

   The witness then went down, Mr. Phillips having no questions to ask him.

   Mr. A. E. Jones was then called.

   Mr. Dowdall - Did you send out any notice to Mr. Drummond and if so state the circumstances.

   Mr. Jones - I sent out this notice (produced). The circumstances under which it was sent out were these. When we receive notice from the Consulate, for the purposes of collecting the land tax we send out this notice to owners of property as a quick way of getting the information as to locality and the assessment they think fair to put on the property. At the time I had no idea of the locality of this land at all and I therefore sent the notice to Mr. Drummond asking him to give us the required information. But you see he gave no information at all as to locality, merely stating the assessment at Tls. 1,700 a mow. After that I received information from the Surveyor's Office that the land was in dispute and consequently I did not send out any notice for the land taxes.

   Mr. Dowdall - Have you got the land tax receipts for lot 767?

   M r. Jones - I have.

   Mr. Dowdall - For many years past?

   Mr. Jones - Yes, since 1882.

   Mr. Phillips - I want to see the receipts. The taxes are paid on an area of mow 6.0.9.0. and the title deed area?

   Mr. Jones - Yes.

   The President - What taxes are they?

   Mr. Jones - The Chinese Government land tax.

   Mr. Dowdall - That finishes my evidence and I will now submit as short a summing up of my case as I can.

   The President. - Though it may be a slightly irregular proceeding, Mr. Dowdall, before you go on I should like in reference to the point about these fangtans to call my writer, who has been in charge of the Law Offices of this Consulate for about 30 years, to have his testimony with regard to the taking up of these fangtans when applying for title deeds.   

   Shun, the Writer of the Consulate, was then called and examined by Mr. Hykes, and said in reply to the President - I have been for 13 years Writer in this Consulate and have during all that time had charge of the work in the Land Office.

   Mr. Phillips - But does his experience go back far enough?

   Mr. Hykes - No, only 13 years.

   The President - Then he may go down. His testimony on the point we want to come at is of no value.

   Mr. Brenan - I should like some information from the Council on the plan here, which gives the area of mow 22.4.6.9. The three title deeds put in give a total area of mow 23.9.0.7., and what I want to know is where is the ground covered by the other two title deeds as we now have it there are five title deeds altogether. The three deeds put in seem to suffice for the area.

   Mr. Dallas again went over the plan to the Court and then retired.

   Mr. Dowdall - My case seems to epitomise in this way.  The plaintiffs claim some lands now in the possession of the defendant. The land has been marked out by the defendants' boundary stones for many years and at the date of the plaintiffs' title deed one third of the land was fenced in and occupied by a licence of the defendants. 

   The defendants held the title deed for 34 years before the plaintiff's title deed was issued and I submit that to disturb them after this very long possession, very strong evidence of the plaintiffs' better title will be required. The evidence produced by the plaintiffs, I submit is not strong.

   Their Surveyor surveyed the land and brought into Court a plan, but he did not show how he identified the plan with the title deeds. The defendants, on the other hand, went elaborately into their title deed and identified their plan as belonging to their title deed.  It is true the plan was made incorrectly at first, but after a subsequent survey they were put right.

   The plan deposited in the British Consulate, I may explain, was a plan in which nothing was thought of or shown but the Rifle Range, and afterwards we put on that plan more lots and roads which were included in the land of the Range, which were put in individually, and this is how the confusion arose. I think this is the only point I need address you upon and confining one's self to the material facts before you there is nothing for me to say and I will leave the matter as it rests in the hands of the Court.

   Mr Phillips in addressing the Court said -

[Not transcribed.]

Again, this is simply Mr. Dallas' statement and there has been no evidence whatever forthcoming to the Court with regard to it. I may complain also of the way in which this case, generally speaking, has been presented to the Court by the Municipal Council. I gave Mr. Dowdall notice to produce all documents, deeds, and titles in reference to this lot or bearing in the matter.

   Mr. Dowdall - I beg your pardon -

   The President - The Court does not desire any further arguments on that, gentlemen.

[Not transcribed]

The President - The Court will take the matter into consideration and then deliver its judgment and notice to be present will be given to the parties in time.

.  .  .  

19th January.

JUDGMENT.

The decision in the above case was delivered yesterday in the following terms:-

Shanghai, 18th January,1899

The Court of Consuls of Shanghai in the case of E Chuen Tsuen and Lok Fook-tsuen versus the Municipal Council of Shanghai, find that the title deed 760 for lot 767, British Consulate, Shanghai, covers the same ground as that described in the title feed to lots 708 and 714 U.S. Consulate, Shanghai, and that the aforesaid title deed 760 British Consulate was issued prior to the issuance of the title deeds to said lots 708 and 714 U.S. Consulate.

   Wherefore the said Court of Consuls denies all of the petitions of the said plaintiffs in the above-mentioned suit and orders that the said plaintiffs shall pay all Court costs, witness fees, interpreters' and stenographers' fees incurred in the above-named suit.

   In witness whereof we have set our hands this 18th day of January,1899, at Shanghai, China.

(Signed) John Goodnow, U.S.A. Consul-General.

(Signed) Byron Brenan, H.B.M.'s Acting Consul-General.

(Signed) W. Knapfe, Acting Consul-General for Germany.

 

Source: North China Herald, 16 January, 1899

 

THE COURT OF CONSULS.

(HOLDEN AT THE U.S. CONSULATE-GENERAL.)

Shanghai, 10th January

Before Mr. John Goodnow, U.S. Consul-General, presiding, and Mr. Byron Brenan, C.M.G., and Dr. Knapfe, British and German Acting Consuls-General respectively.

LOK FOOK-TSUEN & E. CHUN-TSUEN v. THE MUNICIPAL COUNCIL FOR THE FOREIGN SETTLEMENT, NORTH OF THE YANGKINGPANG.

  In this case Mr. Morgan Phillips appeared for the plaintiffs and Mr. C. Dowdall for the defendants. In opening the case,

  Mr. Phillips said - May it please this honourable Court; I appear for the plaintiffs in this suit which involves two pierces or lots of land registered under numbers 708 and 714 in the United State Consulate-General.  The positions of these lots of land will be presently indicated to the Court by means of plans which I shall put in, and no doubt which Mr. Dowdall, who represents the defendants, the Municipal Council of Shanghai, will also place before the Court. I think it will in the first instance be the better course to read the correspondence on the subject, or at least as much of it as is necessary to bring before the Court the salient points which are at issue. I propose also to read the petition and answer in the case without any comment whatever.

 In the first instance I may here state that the petition was first made out in the name of Mr. W. V. Drummond, who is the registered owner of these two pieces of land in question, and being in possession of that land it seems proper that he be the petitioner in this case. But on the 5th day of January this year we, on behalf of the petitioner, were served with a notice of motion by the solicitor for the defendants which reads as follows:

"Between William Venn Drummond, plaintiff, and the Municipal Council of Shanghai, defendants. The defendants will, at the next sitting of the Court move that the cestuis que trustent referred to in the petition may be made parties to this suit and plaintiffs either in addition to or in lieu of the present plaintiff."

  This being so and a matter of no importance at all to Mr. Drummond who is simply the registered owner of the property and has no active interest in the land, we at once consented to substitute the names of the real or beneficial owners of the land in the petition so as to avoid any waste of time in this Court, and accordingly I the next day changed the name of Mr. Drummond as registered owner to that of the present plaintiffs as the actual owners, so that now E. Chun-tsuen and Lok Fook-tsuen are set forth as the plaintiffs and the Municipal Council of Shanghai as defendants.

  The President - Do I understand you now to substitute the names of E. Chun-tsuen and Lok Fook-tsuen for that of Mr. Drummond?

  Mr. Phillips - Yes, that is so.

   The President - Have they, Mr. Phillips, filed admission of the ruling of this Court?

  Mr. Phillips - I do not know that they have filed regular submission, but we have already deposited a considerable sum as security, Tls. 500, in satisfaction for whatever the Court may enforce.

  My friend Mr. Dowdall now mentions to me that we should transfer that sum of Tls. 500 from Mr. Drummond's name to the names of the plaintiffs, which we are ready to do and that being so I consider the Court will be satisfied with that course.

  The President said that it seemed to the Court that although the matter of the deposit had been arranged, they could not actually compel these people, the Chinese plaintiffs, to carry out the decree of the Court, and it would be utterly powerless until they signed a submission guaranteed by the proper Chinese authorities.

  Mr. Phillips - I imagine you would have quite ad much power to impose your finding upon these Chinese petitioners as over those of any other nationality.

  The President - We require them to file submission. For instance, if Mr. Drummond is plaintiff and the Court should order him, to transfer this piece of land to the Council he would be under the direction of the Court. But if the Court should order, under any circumstances, order the Chinese plaintiffs to transfer this land to the Municipal Council, we should be absolutely without power whatever over them until they filed a submission counter-signed by the Chinese authorities.

  Mr. Phillips - I beg to submit that coming here as petitioners and having deposited this sum as security for costs, we have done all that we can.

  The President - I understand that Mr. Drummond has filed his submission to this Court?

  Mr. Phillips - I have asked the parties to file a proper submission, signed by the Taotai and countersigned by the City magistrate.

  The President - Do you think that will be done?

  Mr. Phillips - I cannot say that I can get the signature of the Taotai to such a document as this. I have a paper from the petitioners in which they state their readiness to defer to the findings of this court, but I do not think now I can get the signature of the Taotai to such a document as you suggest. I understand that it had been the practice for Chinese petitioners to attach their signature to the submission to the Court, but I do not think such authority as is now required has ever been asked for before.

  The President - Then it is about time it was.

  Mr. Phillips - I submit I do not think it is necessary in this case.

  The President - Has the Taotai refused this?

  Mr. Phillips - That is so.

  Mr. Drummond - If the Court will hear me as amicus curiae here, as I do not appear professionally in this case, I may be able to assist the Court.  With regard to the application that that the persons who are now on the record as plaintiffs should file a submission to the jurisdiction of the C out, I may say that in my experience the only Court that has ever required such submission was the British Court.

  The President - And so does the American Court.

  Mr. Drummond - The British Court did it under direct command of the Order in Council and for certain purposes to be necessary but also for foreign suitors to file such submission and give security for costs before going into Court. That was the practice for some years, but it was given up and for Chinse it was necessary to procure the signature of the magistrate, but now it is the custom merely to obtain the signature of the Chinese plaintiff; and the printed form used by the British Court has got a note at the bottom showing it to be signed only in Chinese cass. I am unaware whether that was done by direct orders or not.

  Mr. Burrows (Clerk of the Court) - The note is still there but as a matter of practice it is never filled up.

  Mr. Drummond - It was only filled up for a short time and then by the magistrate of the Mixed Court. It was done solely in the matter of costs and it is known that the paper is absolutely valueless in any shape or form.

  The President - I may ask you, Mr. Drummond, that supposing under any circumstances this Court should make an order that you transfer the land, would you undertake to carry it out?

  Mr. Drummond - The Court would have no power to compel me to carry out any order and the Chinese plaintiffs are in exactly the same position with regard to any order it might make with regard to them. What the Court could do, however, would be the same as if the plaintiff goes into the English Court and asks it to try a case, he may be ordered to deposit for costs which is the one thing the Court can do. Therefore the British Court and this have followed the same practice and compelled the plaintiff to deposit security in hard cash and has within its power the actual cash.

 Mr. Brenan - The British Supreme Court takes security that foreign plaintiffs will carry out the orders of the Court according to the Order in Council of 1881.

  Mr. Drummond - That Court has no power over a non-British subject.

  Mr. Brenan - It takes security that he will carry out any order made.

  Mr. Drummond - In what shape?

  Mr. Brenan - In money.

  Mr. Drummond - But it never has any security that he will carry out any transfer.

  Mr. Brenan - No, but he filed a definite submission to the jurisdiction of the Court.

  The President - The plaintiff being foreign to the jurisdiction of the Court must submit himself as far as this particular business is concerned.

  Mr. Drummond - I think if you argue this one to its logical conclusion you will find that the Court has no power to get this jurisdiction.

  The President - That would be all the more reason for getting his submission to the Court and having it counter-signed by the proper Chinese authorities.

  Mr. Drummond - But you could not get it over a German plaintiff.

  The President - The Court would get it over an American inasmuch as the American Court would feel itself bound to carry out the orders of this Court.

  Mr. Drummond - With regard to this being the practice, it has been customary to get the plaintiff to sign his submission and not get any Chinese official to sign it at all, though it was at one time signed by an official, but only for a short time was that the case. It was then only signed by the magistrate and therefore this suggestion of application to the Taotai for his signature is entirely a new departure.  But in this case I sent in the document to the Taotai, asking him if he could sign it, and he said he had never been asked to do so before, and that he therefore declined to do anything of the sport in this case. That is the position of affairs.

  But so far as I am concerned it is perfectly immaterial to me whether the petition is in my name or that of the real or beneficial owners. Mr. Dowdall can go back to the original position if he likes. One word more and I am done. I can say that as I am the original plaintiff and owner of both lots in dispute, I am perfectly prepared to do what the Court orders, and if it should order that the property standing in my name and registered in the U.S. Consulate should be transferred to the Council, I am perfectly ready to do it.

  The President - That is satisfactory.

  Mr. Dowdall - There may be some clause in the deed of trust given by Mr. [Dowdall] to the real owners of this land something under which they may be enjoined by his own Court not to deal with his property or title deeds except as directed by his client.

  Mr. Drummond - I have given, I may say, deeds of trust in the usual way, stating that I hold the lots on trust for my clients, that I hold them for the real owners, I cannot say at the moment what is in it but I will go back and see.

  The President said that would be sufficient and the case would now proceed.

  Mr. Phillips then read the petition and    answer.

  The petition read as follows:

  [1.] The plaintiffs are Chinese subjects residing in Shanghai.

  [2.] The defendants are the Council for the Foreign Settlement of Shanghai aforesaid elected by the ratepayers of Shanghai aforesaid, in pursuance of the powers vested in them by the Land Regulations for the Foreign Settlement of Shanghai aforesaid north of the Yangkingpang.

  [3.] William Venn Drummond, Barrister-at-Law, of Shanghai, has been since the 10th day of October1896 and still is the registered proprietor of all those pieces or plots of land  situated within the boundaries of ground set apart for the location of Foreign Renters at Shanghai aforesaid known and registered in the books for the Registration of Land kept at the United States Consulate-General at Shanghai aforesaid as Lots Number 708 and 714 the Title Deeds whereof are also numbered 708 and 714 respectively the boundaries and area of the said  lots are set out and expressed upon the said Title Deeds. The said William Venn Drummond has no personal interest in the said land. The said E. Chun-tsuen is the beneficial owner of the said lot 708 and the said Lok Fook-tsuen is the beneficial owner of the said lot 714.

  [4.] The defendants have wrongfully entered and trespassed upon the said pieces or parcels of land or parts thereof by placing fencing or other obstructions thereon and have expressed their intention to erect buildings on the said pieces or parcels of land.

  [5.] The plaintiffs have been prevented from a free use and enjoyment of the said pieces or parcels of land and have otherwise suffered damage by the acts of the defendants.

  The plaintiffs therefore pray:

  [1.] That the defendants may be ordered to remove the fencing or other obstructions from the said pieces or parcels of land.

  [2.] That the defendants their agents servants and workmen may be restrained by perpetual order and injunction from entering and trespassing upon the said pieces or parcels of land.

  [3.] That the defendants may be ordered to pay such damages as the Court may think fit.

  [4.] That the defendants may be ordered to pay the costs of this action.

  [5.] That the plaintiffs may have such further or other relief as the Court may think fit.

  The Answer of the Council for the Foreign Community of Shanghai, the defendants, to the petition of the plaintiffs, sets forth:

  [1.] The defendants admit paragraphs 1 and 2.

  [2.] As to paragraph 3, the defendant admit that entries of registration as stated in this paragraph were written into the book for the Registration of Land referred to, they deny that the plaintiffs were ever proprietors in any sense, of the land in question. The defendants say that such entries were made under a misapprehension and that they, the defendants, are the registered proprietors of the land in question under prior registration.

  [3.] The defendants admit the statements in paragraphs 4 and 5, except as to their acts being wrongful or constituting trespass or causing damage.

  [4.] The facts of the case are as follows.

  [5.] The land in question forms portions of lot No. 767 registered at the British Consulate-General. A plan is annexed to the original answer of the defendants.

  [6.] The lot was purchased in the year 1862 from the native owner Shen Loh-she (a woman) and other in behalf of the Shanghai Volunteer Corps and was registered in the name of the Corps as above under title deed No. 760 dated the 7th of April, 1864; and the Municipal Council having subsequently taken over the management of the Volunteer Corps. The lot was on the 5th of September, 1872, transferred to the Municipal Council the then office of whom the defendants are successors.

  [7.] The said lot 767 is an oblong block of land crossing the Rifle Range and including the site of the old 800 yards firing point, which was, at the time the land was purchased, the end of the Range. It was originally intended as an assembly ground at the end of the Range, and the Range having been subsequently extended the parts of the land which lay on each side of the Range were not regularly used and these are the parts of the lot that the plaintiffs claim.

  [8.] There is a boundary stone marked S.V.C. 1862 defining boundaries. These stones were presumably put down in the year 1862. At all events they have stood there, and two were clearly visible for many years before, and at the date of Mr. Drummond's Title Deeds.

  [9.] At the time when Lot 767 was purchased from the native owners it was not customary for native owners to give up the fangtans, or native title deeds, and the woman Shen Loh-she retained that relating to the lot. Mr. Drummond's title deeds were granted on the strength of the fangtan supplemented by a forged deed of transfer in the name of Shen Loh-she and another and fictitiously dated after Shen's death.

  [10.] Mr. Drummond got his title deeds, without notice to the defendants, and presumably without informing the Consular officer who issued them that the land was already registered in a foreign name, or that foreign boundary stones stood on it. In the title deeds of adjoining lots registered at the same Consulate-General prior to the date of Mr. Drummond's deeds, the lot 767 is described as foreign owned land.

  [11.] The defendants hold the Title Deeds of the said lot No. 767. The Chinese Government ground rent had been regularly paid under it by the defendants and their predecessors to the present time. The defendants are in possession.

  Mr. Dowdall -- I seems to me worth while considering whether time may not possibly be saved by going into two questions first. One is as to whether one deed should not have priority over another and the other would be the question whether this allegation of forgery applies because if that is proved everything else will fail.

  Mr. Phillips - If the Court will allow me I will open the case in my own way and not as Mr. Dowdall desired me to proceed. The facts of the case are these. On the 11th of June, 1896, Mr. Drummond having been approached by Chinese clients, the petitioners in this case, wrote the following letter to Mr. Jernigan who was then United States Consul-General in Shanghai.

Shanghai, 11th June, 1896.

DEAR SIR, - I send you herewith the Chinese papers composing the title to two lots of land. In one case a Fangtan, and a perpetual lease from Fei Kwan-hing to myself, chopped by the tipao. In th other case a Fangtan, and a perpetual lease from Fei Kwan-hing to myself, and an old Chinese conveyance.

  Will you please forward these to the Taotai and ask him to prepare and send foreign title deeds in my name, (a separate one for each lot,) to be registered in your Consulate, and let me have the deeds as soon as you receive them. I trust that you will endeavour to prevent any unnecessary delay in the issue of these deeds.

(Signed) &c.  W. V. DRUMMOND.

In this way Mr. Drummond followed the usual custom and practice of lawyers in Shanghai who appear on behalf of Chinese clients who apply for lits to be issued to them from the various Consulates in Shanghai. The fangtan and other papers were sent in to the Consul and eventually, I believe in about November 1896, that is some five months after the application was made, the two title deeds to these lots, title deeds numbered 708 and 714 were received by Mr. Drummond from the United States Consul. They were handed over by him to the petitioners in this suit and were signed in the ordinary way. A receipt for these two title deeds dated 11th November, 1896, was given as follows:

Shanghai, 11th November, 1896

RECEIVED from W. V. Drummond, Eq., the title deed of the lot of land registered in his name at the United States Consulate at Shanghai as Lot 708 nd the trust deed for the same lot.

(Signed) [Chinese characters]

Witness (Signed) LO CHENG YEE.

The two lots numbered, a I have said, 708 and 714, are adjacent or contiguous to the Rifle Range now belonging to the Municipal Council of Shanghai. Lot 714 is situated   north of the Rifle Range and 708 is situated immediately south of the Rifle Range. Lot 708 contained one mow, nine fun, four li and eight haou, Lot 714 contained two mow, three fun, six li and three haou.  I hold the title deeds for these two lots in my hand, and they will presently be put in evidence to this Court. I think perhaps it will be well if I just hand in this plan to the Court. It is not a plan of the whole Rifle Range but it shows the two lots and their positions.

  Mr. Goodnow - Have you any objection, Mr. Dowdall?

  Mr. Dowdall - I have not seen it.

  Mr. Phillips - Of course I undertake to prove it later on. It shows the position of the two lots with regard to the Rifle Range. 

  In June 18978, that is twelve months after Mr. Drummond applied for these deeds and some ten months after he received them, a letter was sent to him from the United States Consulate by Mr. Jernigan which was as follows:

Consulate-General of the United States,

Shanghai, China, 16th June, 1897.

  SIR - I have received your letter of the 16th inst. with reference to the land in question between you and the Municipal Council. As soon as I received the letter from the Municipal Council on the subject I immediately sent it to you for your consideration.  It has been the custom heretofore for foreigners in Shanghai to elect the Consul-General though which they would make transfers of their property and receive the evidence of their titles. I have always thought it was not proper for any foreigner unless he was an American citizen to conduct such business through this Consulate-General, but I have desired not to enforce this rule in an ex post facto sense. In cases, however, of controversies between nationals other than my own and in which my own are not interested I do not feel authorised to make my Consulate-General a party thereto. Whatever evidence of this there may be recorded at this Consulate those interested can examine or if desired, procure copies of the record and I shall be very glad to further your wishes in this or at any other time that will not place me in the position of taking part in a controversy in which American citizens are not interested.

  In securing a deed from the Taotai or allowing one to be recorded here, the owner of the deed must look to the validity of his title and the legality of his boundaries as the action of the Consul-General is simply ministerial and he cannot know what is being bought or sold except from the face of the deed.

With high personal regards, & c.

(Signed) T. R. JERNIGAN.

  Now the following letter was written on behalf of the Municipal Council to the British Consul-General Sir Nicholas Hannen, and signed by Mr. Burkill, then Chairman of the Council, on the 12th June, 1897.

  Shanghai Municipal Council,

Shanghai, 9th June 1897.

  SIR, - On behalf of the Municipal Council I beg to request your assistance in vindicating the Council's title to the lot of land registered at your Consulate-General in the name of the Council as Lot No. 767 under Title Deed No. 780 against claims by Mr. W. V. Drummond who has lately procured from the U.S. Consul-General the issue to him of two Title Deeds purporting to cover the greater part of the above lot.

  The land was acquired in 1862 though the British Consul for the Shanghai Volunteer Corps, as afterwards registered in the name of the Corps under Title Deed No. 760 dated 7th April, 1862, and was on the 5th September 1872 transferred to the Council in whose name it now stands. It consists of an oblong block of land crossing the Rifle Range and including the 800-yard firing point, and was originally intended as an assembly ground at the most distant firing point, but the range having been extended to 900 yards, the parts of the lot which lay at the side of it went out of use.

  Mr. Drummond has recently obtained from the U.S. Consulate-General two title deeds Nos. 708 and 714 for these parts which went out of use.

  The enclosed plan shows Council's lot and the portions of it which are covered by Mr. Drummond's title deeds. The light blue strip in the middle is a section of the Rifle Range the only portion of the lot which could be left to the Council if Mr. Drummond's title deeds were good.

  The title deed area of this lot is 6m. 0f. 9l. 0h.and the actual area of the land covered dark and light blue in the plan is 5m.6f.3l.8h. which considering the very rough way measurements were taken by the Chinese some years ago, may be considered fairly approximate.

  The Northern boundary is well defined by two boundary stones marked S.V.C. 1862 which are still standing at the corners and there is one similar stone near the south-east corner.

  The positions of these three boundary stones are given on the plan and there is a photograph of one of the stones on the North side. Both the stones on the north side stand well out of the ground and could not fail to be visible to any one on or near the lot. The stone at the south end had been covered up with rubbish.

  The whole of the lot has never been enclosed nor since its acquisition by the Volunteer Corps in 1862 has it been occupied further that it may be said to be occupied by the boundary stones and the section of the firing range and two firing mounds.

  Part of the lot has been during the last two or three years been by express permission of the Council given by the Secretary, fenced in and used as a kitchen garden to a house belonging to the late Mr. Pike.

  The Council holds the Chinese and Consular title deeds and all the receipts for the Chinese Government ground rent on the whole lot which has been paid regularly to the present time.

  From the above facts it will be seen that no-one making any enquiries about the matter or even going on the land could be ignorant of the Council's right to it. As to how Mr. Drummond obtained the title deeds it is to be inferred that he must have produced old fangtans which were not given up by the native owners on the sale to the Volunteers (Fangtans seldom or never were given up in those days) and so concealed from the United States Consul-General the fact that the S.V.C. boundary stones were standing on this land.

  The Registers of Mr. Drummond's title deeds at the U.S. Consulate-General are not complete for want of Mr. Drummond's signature, as the rebter of the lots.

  The Municipal Council suggest that you should inform the U.S. Consul-General of the above facts and the Council are prepared to substantiate all or any of them to his satisfaction and request him to cancel the registration of the two lots or declare that the registration is incomplete and is not to be completed on the ground that any such title deeds granted by his Consulate-General to a British subject would, under Land Regulations III, be irregular, and also on the ground that material circumstances were not brought to the notice of the Consulate when the deeds were applied for.

  Mr. Drummond would thereby be left to apply to his own Consul under Land Regulation III for title deeds and under Land Regulations IV to have them registered.

I have, &c.  (Signed) A. R. BURKILL.

  On the same day, 14th June 1897, the following letter was written to Mr. Bland by Mr. Drummond, Mr. Bland being the Acting Secretary of the Municipal Council

Shanghai, 14th June, 1897

  DEAR SIR, - I am informed that persons apparently employed by the Municipal Council have taken possession this morning of two pieces of land registered in my name as Lots 708 and 714, and are preparing to put a fence round them. I have to request that this work be discontinued immediately.

  I am entirely unable to understand why the Council should attempt to interfere with these lots as I have never received any intimation that the Council claimed any rights in connection with them.

I am, &c.

(Signed) W. V. DRUMMOND.

  That letter was acknowledged by Mr. Bland and there was some correspondence which I will not read now. Possibly it will have to be read later on when I put my evidence before you, but it is desirable that I should at once read this letter to you which Mr. Drummond addressed to Mr. Jernigan on the 16th Jun, presumably after he received the communication from Mr. Jernigan:

Shanghai, 16th June 1897

  DEAR SIR, - I have to acknowledge the receipt from you on the evening of the 15th inst. of a letter and two enclosures; one being a letter from the Chairman of the Council to yourself of the 14th isn't.  and the other containing a plan and a photograph. I had already sent a letter on the same subject to the Acting Secretary of the Municipal Council, yesterday morning, a copy of which I now enclose.

  It seems to me to be extremely discourteous to say the least of it, for the Chairman of the Council to address a letter to you on this subject, and to inform you that he has taken forcible possession of the land without ever communicating with me on the matter, though aware that the land is registered in my name.

  I sent the Chinese title deeds (fangtans) for these two lots to you in the usual manner, about a year, or more ago I believe. Several months afterwards I received the usual title deeds from you in my name and in the ordinary form. I presume of course that the deputies appointed by the Taotai and yourself did their work properly, and that the title deeds you sent to me are perfectly good and valid. I have no personal interest in the matter but merely hold the properties as trustee for the owner according to the usual custom in Shanghai.

  If the Council had taken the proper and straightforward course of communicating directly with me as soon as they formed an opinion that they were entitled to these lots I would have been perfectly willing to agree to any reasonable method of investigation.

  I have received separately from the Acting Secretary of the Council, a copy of which is now enclosed. This letter, besides being very discourteous, affords no sufficient justification of the Council's action, as both boundary stones do not constitute title to land, and are merely pieces of evidence, which may have to be considered in conjunction with other evidence.

  I have informed the owners of the land of the statements contained in the communication received from you, and the letter from the Acting Secretary of the Council, and they state their perfect willingness to have the whole matter fully investigated by any fair and impartial tribunal. They have furnished me with information, which if correct, seems to show that they have a good right and title to the land which they claim. The matter is therefore one which cannot be settled by the high-handed action of forcible seizure, and a reference to a stone or stones.

  The letter of the Acting Secretary is such that I must decline further correspondence.

  I now return, as requested, the Chairman's letter to you and the plan and photograph.

I am, &c., (Signed) W.V. DRUMMOND.

  Well I think the Court will agree that that was a perfectly proper letter to write under the circumstances. No communication is made to Mr. Drummond the registered owner of the land but when this course was taken he at once put himself in proper position. He writes to Mr. Jernigan, the then American Consul-General, and he says that his clients the Chinese owners are perfectly prepared to submit the whole matter to the investigation of a fair and impartial tribunal.  Apparently the Council took no notice of that communication.  At all events Mr. Drummond proposed to Mr. Bland, or at any rate to some official of the Council that the matter should be referred to arbitration.   All he desired was that the whole of the facts should be disclosed so that in a friendly way the title to this property might be decided.  That course was refused by the Council so that the proposed friendly settlement came to an end. But further correspondence ensued after the matter was apparently dropped for some time following the proposal to submit the case to arbitration, correspondence which I wish to call the Court's attention to being nearly twelve months afterwards. On the 30th of June, 1898, Mr. Bland wrote as follows to Mr. Drummond:

Shanghai Municipal Coucncil,

30th June, 1898.

  SIR, - I beg to refer you to your letter to the Council, dated 14th June, 1897, from the contents of which, it is gathered that you make some claim to the Council's land on Rifle Range Road, Cad. Lot 767, and to inform you that, if you have any such claim and will bring a suit in substantiation thereof, the Council will be prepared with evidence of its title.

  I am directed to give you this notice as it is intended shortly to build upon the land in question.

I am, &s. (Sgnd.)     J. O. P. BLAND.

  Perhaps I should have earlier on alluded to the fact that in November, 1897, after the correspondence which I read to you just now, a notice was sent in by the Council to Mr. Drummond with regard to the assessment of the property for rates, and in that documents which he sent in Mr. Drummond is described as the registered owner of these two lots 708 and 714. They had before claimed some right to this property but in November of the same year they sent in a document to Mr. Drummond asking him to fill up details for the purpose of assessment in which he is described as the owner of these lots.

  I return now to the correspondence of June, 18978. It then became desirable that the matter should be discussed in a friendly way. Mr. Drummond again suggested that that course should be adopted, and there is one letter which I cannot read to you as Mr. Bland has marked it private, and apparently it contains some private matter, but it also contains matter relating to this case.

  Mr. Dowdall - You can read it.

  Mr. Phillip - I cannot read the whole of it.

  Mr. Dowdall - No, but anything relating to this business.

  Mr. Phillips - Very well, I will. In the course of the letter he says:

The Council cannot well go on with their job until your client has been disposed of, and as I wrote to you officially on the 30th of June, they hope you will move in this matter as early as possible, so as to enable the work to be proceeded with, somehow, before the autumn. If you wish to go into the question of respective title to the property and will name a day and hour for that purpose we will do all that is possible to afford you full information on the subject. I think you said that some such amicable enquiry into the question would be according to your wishes.

Then on the same date Mr. Drummond wrote to Mr. Bland:

11th July, 1898

  SIR, - In reference to the lands in dispute adjoining the Rifle Range I beg to acknowledge your letter of he 30th ult.

  I have been making inquiries with regard to the title of the land in question. Lots 708 and 714 U.S. Consulate - and should be glad to have a meeting with you at Mr. Mayne's office so that if possible, the matter my be settled without further proceedings. Will you be good enough to name an early date which may be suitable to you? I should say that every Monday, Thursday, and Saturday would be inconvenient to me.

  Awaiting the favour of your early reply.

I am, &c., (Sgd.) W. V. DRUMMOND.

Then Mr. Bland writes on the 12th of July,

  Shanghai Municipal Council, 12th July, 1898

  SIR, - In reply to your note of yesterday I beg to inform you that it will be convenient if you will call at this office on Friday next at 3 o'clock p.m. to discuss the question of the title to the land adjoining the Rifle Range Road to which you refer.

I am, &c., (Signed) J.O.P. BLAND.

And on the following day Mr. Drummond replies and says:

Shanghai, 12th July, 1898

Land near Rifle Range lots 708 and 714 U.S. Consulate.

  SIR, - I hope to attend for the meeting on Friday next at 3 p.m. as suggested by you.

  Will let you know definitely tomorrow morning.

W.V. DRUMMOND.

  Mr. Goodnow - As the Court understand it the Council claimed that the lot 767 registered at the British Consulate includes the entire property comprised in lots 708 and 714 and the Rifle Range between.

  Mr. Phillip - That is so. Then in the 14th Mr. Drummond wrote:

Shanghai, 14th July, 1898

Lots 708 and 714 U.S. Consulate.

  DEAR SIR, - Confirming my letter of yesterday's date, I shall be in attendance at your office tomorrow afternoon three o'clock.

  All the documentary evidence available shall be produced, you will doubtless adopt the same course.

W.V. DRUMMOND.

  On that day a representative from Mr. Drummond's office who happened to be myself accompanied by an interpreter attended at the office of the Municipal Council to discuss this matter and investigate it in a friendly way to see if any compromise could be arrived at,  and it was arranged as indicated by these letters that the question should be thoroughly discussed.

  I cannot give evidence myself but I may be allowed to start that the matter was not discussed. The representative of the Municipal Council immediately refused to enter into any discussion of the matter at all. They offered it is true to produce all the deeds but that course was perfectly useless. We have our title deeds and they have some deeds, but to compare them would not advance the matter one jot or tittle. They refused to discuss the whole matter and therefore the meeting was abortive. On the next day Mr. Drummond wrote:

Shanghai, 16th July, 1898

U.S. Consulate Lots 708 and 714.

  DEAR SIR, - In a letter to me dated the 6th inst. you wrote as follows:

  "If you wish to go into the question and examination of respective title to the property and will name a day and hour for that purpose we will do all that is possible to afford you full information on the subject. I think you said that some such amicable enquiry into the question would be according to your wishes. "

Again in a letter of the 12th inst. after naming the 15th inst. At 3 o'clock for the meeting at our office you wrote as follows:

  "To discuss the question of the titles to the land."

  Accordingly Mr. Phillips attended for me at your office yesterday at the time you named for the purpose of having the agreed discussion, and inquiry, and investigating your title and receiving such information as would lead us  to a fair appreciation of the strength of your case. At the same time he was furnished with documentary evidence and other information which would lead you to a like estimate of the validity of my clients' title.

  It is obvious that the land does not belong to both parties, and it was therefore that such an amicable discussion would lead one party or the other to the conclusion that it would be desirable to withdraw their claim. However, Mr. Phillip was, on his arrival in the room, met with the announcement by you that there was to be no discussion but merely a production of the title deeds on either side. This was clearly perfectly useless without investigation and discussion, and this is not my view of an amicable enquiry or discussion.  The meeting which might have some good results was rendered useless by a loss of time to the several officials who were there assembled in your office in the matter, and to my representative.  There must consequently be a legal enquiry as to the ownership of the land in question, and a considerable liability in the way of costs will be incurred by one side or the other. A petition to the Court of Treaty Consuls will be filed.

Yours &c., W. V. DRUMMOND.

  I may mention parenthetically that this appears to be a matter which does not concern the Council very much. Whatever the feelings of the Ratepayers of Shanghai might be they determined to stand by the position they had taken up and to avoid this amicable discussion. I think I shall in time be able to show why at that time they were anxious to avoid discussion. Subsequently to that the matter was prepared to come before this Court.

  On behalf of my clients I hold two title deeds to this property the actual land, signed by the Taotai, and that is the best title foreigners could have to property in Shanghai or anywhere else in China. As I have already said I hold the Taotai's deed to the exact and specific lots and therefore it seems to ne that in producing them and placing them before the Court the title of the petitioners to this land is for the time being at all events an indefeasible one. I shall put them in presently in a formal way.

  With regard to these title deeds which are the regular documents issued from the various Consulates I shall read to you the observations of the Chief Justice of the British Court, Sir Nicholas Hannen, in a case decided in 1894.  I don't say that this Court is absolutely bound by the decision of Sir Nicholas Hannen, the British Chief Justice, but I do think that as he is the one who has been a judicial officer here for some time and is thoroughly acquainted with the holding of property here, a man of very great experience, that you will certainly be guided in a great measure by the judgment which I am now about to read to you.

  What I am now about to read to you is dicta from his judgment in the case of Major v. Jardine Matheson & Co., on the 4th of January, 1894.

"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 this Court to go into the title of the Chinese owner. For the purposes of this suit it is not necessary to go into this because no fraud has been alleged or suggested.  To hold otherwise would be to unsettle the title of every bit of land in the Settlement. The Taotai's deed must be taken as conclusive evidence and we cannot go behind it."

  I hold these deeds and they will be placed before the Court. Now can the defendants show a better title? I think they cannot. If they can show a prior title deed to these exact pieces of land I admit it would be superior to mine.  I believe they say they have a title deed which includes these two pieces, but I think I shall be able to prove incontrovertibly that the deed they hold which they say includes these two pieces does not do so at all.

  The defendants' case is this, and I will draw the attention of the Court for a few moments to the answer which of course I do not intend to read over again. They refer in one of their paragraphs to arbitrary dealing or forgery. We have no information about that and it does not seem to ne that they have any ground for making such an allegation. Of course that may be a matter to be gone into later on although I am not quite sure that it can.

  Mr. Dowdall acting on behalf of the Municipal Council may have some grounds on which to claim this property but he has no right to impugn our title. The Council may hold land on the Siccawei Road but because they do so, that is no reason why they should impugn the title to land in some other part of the Settlement, and until Mr. Dowdall is able to show you he has some claim to this property he is precluded from impugning my clients' title to it.

  I have given you notice, Mr. Dowdall, to produce your plan lodged at the British Consulate in 1892, I have also a plan here which I hold for the purpose of comparison. It is a plan of the Rifle Range which I believe was lodged by the Municipal Council in 1892 which I will put before the Court. Now there are two wings which don't appear on this plan and there was no claim made to this land in 1892 as I shall show presently.

  I think it is a very extraordinary thing that the Council should have bought other land for a Rifle Range there being two wings to it at either end, and although I don't suggest that it is due to the ingenuity of Mr. Dowdall, the Council in their answer give some sort of explanation by saying that these wings were originally intended for use as an assembly ground at the end of the range. They also state with regard to the boundary stones that there are three stones marking the position of these two lots, and they say apparently that this is conclusive evidence of title.  Of course, it is in some measure evidence of title to property, but the best evidence is the title deed itself. If persons or owners can produce the title deeds to property the mere question of boundary stones does not affect the title at all. Boundary stones as I have said are some evidence but conclusive evidence is the title deed itself. As to these stones they certainly now appear at the corner of lot 714 and one at the corner of lot 708, but who placed them in that position I don't know. Apparently they were there in 1892 for reasons I shall presently indicate to the Court.

  The defendants also state in Paragraph nine of their answer:-

9. - At the time when Lot 767 was purchased from the native owners it was not customary for native owners to give up the fangtans, or native title deeds, and the woman Shen Loh-she retained that relating to her lot. Mr. Drummond's title deeds were granted on the strength of this fangtan supplemented by a forged date of transfer, i.e. the names of Shen Loh-she and another fictitiously pasted after Shen Loh-she's death.

  Well, I don't know but I submit that this is a most improbable suggestion. Nobody I have consulted seems to have heard of such a course being adopted before. If native owners did not deliver up their fangtans it seems to me that you would have many more such cases as this In Shanghai. I have not heard of one, and I am told that this is the first time the suggestion has ever been made, that they do not deliver them up. I don't know whether Mr. Dowdall will be able to prove it, but I submit that it is merely a suggestion, and improbable in the highest degree.

  Paragraph 10 states:

10. - Mr. Drummond got his title deeds without notice to the defendants, and presumably without informing the Consular official who issued them that this land was already registered in a foreign name, or that foreign boundary stones stood upon it. In the title deeds of adjoining lots registered at the same Consulate-General prior to the date of Mr. Dowdall's title deeds, the lot 767 is described as foreign owned land.

    What on earth does that mean? Why should Mr. Drummond give notice to the defendants? The native owner produced the fangtan and that enabled Mr. Drummond to get them these title deeds. Mr. Dowdall is well aware of the practice. He has a greater business of this character than any other legal practitioner in Shanghai. When Mr. Dowdall's clients come to him does he give notice to everyone of the fact? Does he go on to see every bit of land in which he is interested and to note whether there is any obstruction upon it or whether there are any boundary stones? Is Mr. Dowdall so active as to do that? Perhaps he does, but I suspect that he does that which everybody else does in Shanghai. He has the papers handed over to him and he sends them in to the respective Consulates and asks for a title deed and it then is the burden of the consular officials to go over the land and to measure it and to see if there are any obstructions. It was not Mr. Drummond's business to give notice to the Council that he was going to apply for title deeds in this matter. It may be the practice of 

Mr. Dowdall but I don't think it is.

  Now the issue which is raised in this case is this. In Paragraph 2 the defendants say:

2. - As to paragraph 3, the defendants admit that entries of registration as stated in this paragraph were written into the book for the Registration of Land referred to, they deny that the plaintiffs were ever proprietors in any sense, of the land in question. The defendants say that such entries were made under a misapprehension, and that they, the defendants, are the registered proprietors of the land in question under a prior registration.

  That then is the issue which you have to determine in this case. Do these two lots numbered 708 and 714, registered in the United States Consulate form part of Lot 767 which is registered in the British Consulate? As I have already indicated to the Court I shall be able to show conclusively that they do not.

  Mr. Morgan Phillips continuing his opening for the plaintiffs, said:

  Now, Mr. Dowdall, I call for the three title deeds of the Municipal Council to this range.

  Mr. Goodnow - The question is not practically one. This lot 767 is registered in the British Consulate and lots 708 and 714 in the United States Consulate and what we have to decide is whether these two are part of lot 767.

  Mr. Phillips - That is substantially the issue before the Court

  Mr. Goodnow - There is no need therefore going into other matters until that is settled.

  Mr. Phillips - I an about to show that these lots were not included in lot 767.

  Mr. Goodnow - The claim of the defendants is that lot 767 incudes the range between these lots and the lots you maintain are yours. The question before the Court is does it cover these two lots?

  Mr. Phillips - I call for the title deeds of the defendants to the Rifle Range. To the Rifle Range there are three title deeds which the Municipal Council hold. One lot numbered 541 including the butts was bought on August 7th, 1862. The area of that one part including the bttsis 10 mow, 1 fun, 6 li, and 7 haou. Lot 759, the middle portion of the Range, was bought on April 7th1864 and measures 7 mow, 6 fun, 5 li. The most important one and the last deed numbered 760, dated April 7th1864, is lot 767 and the area of it is all important in this case; it is 6 mow, 0 fun and 9 li. I shall show you presently that that last deed extends from somewhere about 1,000 feet up the Range and is forty feet wide.

  Mr. Breenan - But the Rifle Range was subsequently extended. What title deed covers the extension?

  Mr. Phillips - I don't know, Sir. I am going to put in the defendants' deeds and what I am instructed is this, that the title deed 760 covers this portion of the Range to the end but the Municipal Council do not hold any deeds for the extension of the Range and it is certainly a mistake and misleading to contend or suggest that any extension is covered by deed 767.

  Mr. Goodnow - Have you any title deed, Mr. Dowdall, that covers the extension of the Rifle Range?

  Mr. Dowdall - Yes, I have.

  Mr. Phillips - Then all I can say is that we have applied for these title deeds to the Range and I have inspected them. Mr. Dowdall submitted to me only the three title deeds I have referred to. There was no title deed produced to me of any extension of the Rifle Range.

  Mr. Dowdall - I have not and had not the slightest idea of concealing anything. I should like to see the notice that was given.

  Mr. Phillips - I served you with notice to produce all documents, and you only showed three with regard to this matter.

  Mr. Dowdall - Well, where is it? I don't remember seeing it.

  Mr. Phillips - It is here and reads as follows:

Take note that you are hereby required to produce, and to show to the Court on the trial of this cause all books, papers, letters, copies of letters and other documents and writings in your custody possession or power containing any entry memorandum or minute relating to the matters in question in this cause and particularly the original plan of the Rifle Range and Butts as deposited by the Municipal Council in the British Consulate and all titles documents and plans.

Dated this 4th day of January, 1898, &c.

  Mr. Goodnow - I don't think Mr. Dowdall that Mr. Phillips charged you with any bad faith.

  Mr. Phillips - After that notice Mr. Dowdall came to me and produced title deeds relating to this property. But no deed showing that there was any extension of the Rifle Range. Mr. Dowdall is anxious to see my notice; and he has; but he did not produce the whole of the documents in this matter.

  Mr. Brenan - At the present moment you are basing your claim on that there are no more title deeds.

  Mr. Phillips - Anything of that nature introduced now will affect my arguments.

  Mr. Goodnow - If anything further is brought forward we will consider your surprise and give you time to consider.

  Mr. Phillips - I don't know anything of it. I have never seen it and this is the first time I have heard of it. I wanted Mr. Dowdall to produce all the documents and in common fairness he ought to have done so.  This has been suppressed and I have never heard anything of it before now. Title deed 760, of lot 767, shows an area of 6 mow, 9 li. That is shown by measurement of the Range itself. If that lot included the two lots in dispute the area would not be 6 mow but ten mow four fun.

  Mr. Dowdall handed in the document not previously seen by Counsel for the plaintiffs.

  Mr. Phillips - This deed is dated 7th of August 1895, subsequent to the plan being deposited in the Municipal Council's offices, and it is for one mow, six fun, four li, and six haou. I cannot make much out of it, but it is not sufficient anyhow to make up an area so as to show that the lot 767 includes these two disputed lots.

  I again call the attention of the Court to the fact that that document is subsequent to the plan of 1892, which is deposited in the archive of the British Consulate General. It is suggested that the boundary stones which they say have been for some years at the corner of this land show they have a title to it. I have already stated that we hold the title deeds for these specific piece of land which must override any question of boundary stones.

  I should call attention to the boundaries of Lots 708 and 714 as shown in the Shanghai Land Assessment Schedule. There are two schedules, one dated 1895, and one 1897. I believe no schedule has been issued between these dates, and both were issued by the Municipal Council of Shanghai or at any rate with their authority. If you look at cadastral lot 475 the boundary is stated in the schedule of 1892 on the North and in the South by the Rifle Range which is immaterial but it is material that the boundary on the east is stated to be unregistered land. That, as the Court probably knows, is land for which no foreign title deed has been granted.

  If it pleases the Court I propose to refer to the boundaries as stated in the schedule of 1897 in which the boundary to the east is made lot 476  so that the Council have changed their schedules; and whereas in the schedule of 1892 the eastern boundary is stated to be unregistered land in the schedule of 1897 it is stated to be lot 476 the same thing.

  With regard to lot 452 in 1892 the western boundary is stated to be unregistered land and in 1897 lot 476, so what has been done is this, although they had never laid claim to this land before they now allege that two lots form part of cadastral lot 476. Well, I shall produce two plans attached to the schedules for these two years. The plan attached to the schedule of 1892 shows these two lines but in the plan of 1897 they are taken out so as to include these two lots.

  Well, now Sir, in all the correspondence with regard to this matter and which is largely in the archives of the British Consulate-General, letters dated 23rd March 1892 from George Brown, Vice Consul; to Mr. F. Thorburn, Secretary of the Municipal Council; letters from Playfair; Thorburn to Brown, and a letter of 9th of June, 1897, addressed to Sir Nicholas Hannen, I have given notice for the production of these documents.

  Mr. Dowdall - Are they, you say, in the British Consulate?

  Mr. Phillips - I saw them there.

  Mr. Dowdall - Well, why do you ask me to produce them?

  Mr. Phillips - I have given you notice because they form part of my title deeds.

  Mr. Brenan - You can have them this afternoon, Mr. Phillips.

  At this stage the Court adjourned for tiffin.

  On resuming after the interval,

  Mr. Phillip said - I now propose to put in as evidence the cadastral plan of the Rifle Range and surrounding lots which are incorporated in the Shanghai Land Settlement Assessment schedule of

1892 also the 1892 schedule, and the schedule for 1897 with the plans accompanying. This is the map dated 1893 which accompanied the schedule and you will see that there are two lots situated to the North and South of the Rifle Range lot. Here also the boundary stones on the Range marking the extent of lot 476, so that you can see it runs nearly half-way up the Rifle Range, nearly right to the end. The lot 476 runs up right to the butts. According to that there is a little red mark marked upon the Rifle Range on the plan showing the limit of lot 476. I will put in the schedule of 1897 with the accompanying map, or plan, and the Court can see therefore that the lines which were put in the plan of 1893 were eliminated and take in these two disputed lots in lot 476.

  I now propose to give the correspondence which is in the British Consulate bearing on the subject. The first letter is one dated 23rd March 1892:

Land Office, H.M. Consulate-General,

Shanghai, 23trd March, 1892.

  DEAR SIR, - I am directed by the Consul-General to inform you that the Taotai with a view to preventing further complication and in connection with the registration of new lots 1,935 and 1,936 is desirous of verifying the areas of lots 548,766 and 767 which are said to form the Rifle Range, and stands in the name of the Municipal Council. If you see no objection to this proposal it would be well that an officer of the Council should be present at the measuring of which due notice will be given to you.

(Signed) GEO. BROWN.

  On the 24th March, the next day, a letter was sent from the Municipal Council Office, Kiangse Road, to Mr. Geo. Brown as follows:

  SIR, - I beg to acknowledge the receipt of your letter of the 23rd inst. and in reply I beg to say that the Council have no objection to the areas of lots 548, 766 and 767 forming part of the Rifle Range being verified by the Chinese authorities, and they will appoint an officer to be present at the measuring of the ground, when you let us know the day on which it will take place.

(Signed) R. F. THORBURN.

The next letter:

Municipal Council, 23 Kiangse Road, 2nd June, 1892.

  SIR, - Referring to your letter of 23rd of March, I have now to inform you that the Range was measured by the Taotai's deputy on the 20th April in the presence of the assistant engineer and surveyor, and was defined by him as being 40 feet in width without any objection being made by the country people, several of whom were present and Municipal stones have now been placed marking the boundaries of lots 548, 766 and 767 which form the range and butts. Accompanying this I beg  to hand you a plan of Range as now defined, which the Council request that you will be good enough to place among the archives of the Land office at H.B.M. Consulate-General.

Yours, &c., R. F. THORBURN.

  The next is from Mr. Playfair, Vice-Consul, to Mr. Thorburn on 2nd June 1892, enclosing copy of translation of the Taotai's note on the Rifle Range. Here is the plan which accompanied this correspondence and is deposited in the archives of H.B.M. 's Consulate-General. I also put in the map which is the outcome of that survey of the land by the Taotai's deputy and made in the presence of the surveyor or some other officer of the Municipal Council. Upon that plan there is no reference to the two lots (708 and 714) which they now claim. The Range, I submit wad certainly defined for all time.

  I do not know and do not care who represented the Council then, there was their officer there; and an officer representing the Chinese authorities. What becomes then of the boundary stones which are supposed to be there marking the property of the Municipal Council to the North and South of the Range? Were they seen by the gentleman representing the Municipal Council? What becomes of the assembly ground on each side, which exists only in the minds of those who lately prepared this answer for the Council. We do not hear anyone ask where is the assembly ground there. That is the plan on which you would expect to see marked all the land which was bought for the Range from the Butts to the end, and that is the plan I place before you in evidence. That being so what becomes of their claim?

  I challenge them to produce any document or plan prior to this showing that they ever claimed these two lots. They did not claim it certainly in 1892, and I care not for any plan produced since, in which they claim it. There you have the plan which defines the property of the Municipal Council without any claim being made to these two lots that they now come forward and claim.  According to their own showing this area is 10 mow, 4 fun, 1 haou. How do they do it? How do they get over that? It seems to me impossible. They do not claim it according to their own schedule. Then again in 1892 we find the land which is now in dispute is referred to in that schedule as unregistered land. It was clearly therefore not included in their property registered in that schedule, or plan. It was not until Mr. Drummond applied for the title deed that they came forward and said: "Lot 767 includes the land in these two wings and though we never claimed it before we claim it now." That appears certainly to be the only conclusion from the facts of the case.

  There is just one other letter I have to send to the Court. The letter - that letter is from Mr. Burkill and it is almost incredible he could have written it. There does not appear to have been any answer to this communication from Sir Nicholas Hannen who probably thought it dealt with matters which did not concern him. It is certainly inconceivable that the first knowledge Mr. Drummond should get of that fact and the existence of that letter was only yesterday; he may indeed have learned of its existence on Saturday, but not before. I ask the Court to say is that decent or proper or manly of the Municipal Council to go writing letters about Mr. Drummond's back, making covertly sinister imputations against him and alleging that he withheld material facts about the land when applying for title deeds to the U.S. Consulate. I say such conduct as that is at once both unbusinesslike and mean. Why did they not go to Mr. Drummond straightforwardly and say: "There is some dispute about that land you have applied for title deeds for, but let us examine it together in an amicable way and see if we cannot settle it in an amicable way?"  No. They did not go to him and say this and try to settle it in a friendly way, but they go behind his back and write this letter, and I wish the Court to draw a contrast between this manner of doing business and Mr. Drummond's conduct throughout the whole of the matter.

  As soon as any question arose about the land he wrote at once to the U.S. Consul-General and said: "My clients are the proprietors of this strip of land which the Council claim, and I offer to submit the whole question to any fair and impartial tribunal for arbitration rather than have any dispute."  At once he also approached the Secretary of the Municipal Council and said to him: "Let us go into the question amicably and have a friendly discussion and an investigation of the whole facts referring to this dispute."  That I submit was the proper way to deal with the question, a fair and honest request to make to the Council, but it was not granted.  As soon as ever the facts were brought to his knowledge he asked the Council to have the matter investigated. There was on his part no writing behind backs as the Municipal Council thought proper to do, but a request for a fair and friendly investigation of the whole matter. That was, unfortunately for the Ratepayers of Shanghai, not granted.  But the Council preferred to proceed to litigation so that the money of the Ratepayers should be thrown away and wasted in very costly proceedings.

  It is incomprehensible to me that they should have declined this suggested amicable discussion and investigation some time ago into the merits of the case, and save the ratepayers' money, and on that point there are two general observations which I shall make. This Court is the representative body of the ratepayers of Shanghai.  They are acting, they are here, in the interests of the public, but I know, that in your hands or in the hands of any representative tribunal, in Shanghai, that the rights if any private person will not be allowed to suffer even for the public interest. I care not whatever his nationality may be, British, American, German, or even Chinese, he can have justice done to him at your hands, and I am sure my client will have justice at the hands of this tribunal.

  How is it I ask that the Council after investigating these facts in 1892 when they were claiming and measuring this property of the Rifle Range did not claim this land now in dispute? Not having done so then it seems to me that they cannot now possibly substantiate that claim. It seems to me if my premises are correct that the conduct of the Municipal Council is undignified, arbitrary and disreputable, another word occurs to me but I will not utter it; I will rather leave it to the honest people of Shanghai to fill up the blank.

  I have now shown by documents that come from the custody of the defendants themselves that they had no claim to it in 1893 and 1894, but in '97 they say, when Mr. Drummond applied for the title deeds: "That is our land here; we must grab a bit more if we can." But if I show that this land was not included or claimed by the Council in 1892, it seems to me their claim must utterly fail and the judgment of the Court will be in favour of the petitioners.

  The President - I am utterly at sea. Will you say what is the practice with regard to registration of land in Shanghai, both with regard to foreigner and natives?

  Mr. Drummond - I can only state what my own practice has been, which is, I presume, what you are asking me for. During the whole time I have practiced here, I have been in the habit of acting for clients with regard to the transfer of land. There are two classes of title deeds here which come into the hands of foreigners for transfer of land. One is the ordinary Consular title deed, and the other is for native title deeds, fangtans or bills of sale. Again there are two ways in which I have held and hold land. One is with regard to land I hold myself and the other as trustee for other persons of which during these years I have held a very large number of pieces of land. With regard to natives, when anyone comes to my office and asks me to have land transferred into my name, they bring Consular title deeds or native fangtans. I enclose these in a letter to whatever Consulate my client prefers, and I ask the Consul to have the land transferred to my name in the usual way and that Consular title deeds be issued to me in the ordinary manner.  I have never, in all these years, ever thought of going to see the land myself or to make enquiries with regard to it. It was not my duty.

  The President - Mr. Drummond, why did you as a British subject come to the U.S. Consulate for a title deed?

  Mr. Drummond - Because the parties coming to me wanted it registered in the U.S. Consulate. This has occurred in my experience on more than one occasion that persons wanted to register land in other Consulates than their own, for what reasons I do not know and never enquire. If the Consul applied to for the title deed accepts it, it is a matter of indifference to me what the Consulate is and if the parties wish I take it into my Consulate. I rather think that at the present moment I have one or more lots of land registered in my name for other people in this Consulate.

  Mr. Phillips - When you applied for these particular title deeds did you give notice to the defendants of your application?

  Mr. Drummond - Of course not. How could I know anything about the defendants? I knew nothing about them in this matter till long after.

  Mr. Phillips - Possibly you may have known that the two lots did not appear as registered in any Consulate on the cadastral plan?

  Mr. Drummond - I knew nothing about that.

  Mr. Phillips - On the 11th of June, 1898, did you send a letter to Mr. Jernigan applying for title deeds in respect of these two lots?

  Mr. Drummond - I believe I did.

  Mr. Phillips - Is that a copy of the letter you sent?

  Mr. Drummond - I have no doubt it is.

  Mr. Phillips - Did you some time in November of the same year receive two title deeds?

  Mr. Drummond - I have the receipts in the office and they will show probably the date. I have no doubt they are dated the day the title deeds were handed over.

  Mr. Phillips - Did you on the 14th June, 1897, write to Mr. Jernigan a lo ng letter in which you stated that you were quite ready to submit the matter in dispute to any impartial tribunal? - Yes.

  Mr. Phillips - Did you on the same day have a reply from Mr. Jernigan? - Yes. The letter read on the previous day was put before the Court.

  Mr. Phillips - After that did you suggest that this matter should be referred to arbitration?

  Mr. Drummond - I suggested that in order to get it settled, the fair way would be to submit it to one or two foreigners. This was made to Mr. Bland and some time afterwards I received a reply from him to the effect that they could not accept it on the ground that if they lost in the arbitration they would be blamed by the Ratepayers. I said that there might be something in what he said and I consequently made no further reference to that suggestion.

  Mr. Phillips - You received from Mr. Bland some communication with regard to the land assessment of the two lots of land?

  Mr. Drummond - Yes, I did; the date is November 8th, 1897.

  Mr. Phillips - You are in that letter referred to as the owner of 708 and 714. The letter reads:

Council Room, November 8th, 1897.

  SIR, - I have to request you to be good enough to supply the information called for in the attached form and to return the same to the Municipal Offices at your earliest convenience.

I am, &c., J. O. BLAND.

  Mr. Drummond - I filled in this document which was for the purposes of taxation of the registered owner, Tls. 1,700, and sent it back to the Council in compliance with their request.

  Mr. Phillips - On the 30th of June, 1898, did you receive a letter from Mr. Bland, Secretary to the Council, in which he refers to their claim in respect of thee lots and intimating that they intended to build upon them? - Yes.

  Mr. Phillips - And on the 5th of July did you write to Mr. Goodnow asking for the attendance of one of his officials? - Yes, that was written with a view to having the matter discussed in a friendly way.

  Mr. Phillips - On the 6th of July did you receive this letter from Mr. Bland, which is headed private? - Yes.

  Mr. Phillips - I have read the greater part of that letter so that it is not necessary for me to read it again. It had reference to proposed discussion and arbitration of the respective titles, and did you on the same day write to Mr. Bland and acknowledge the receipt of it? - Yes.

  Mr. Phillips - And on the 12th did you receive a letter from Mr. Bland which named three o'clock on Friday as the day for the proposed meeting? - Yes.

  Mr. Goodnow - Mr. Phillips, of course, this is all what I might term interesting but I hardly see how it bears on the case.

  Mr. Phillips - There are one or two points which make it necessary for my case to have this correspondence produced.

  Mr. Goodnow - I don't see how it bears on the case in the slightest degree.

  Mr. Phillips - It shows we were anxious to have the matter investigated.

  Mr. Goodnow - We will take that for granted.

  Mr. Phillips - Certain allegations have been made against Mr. Drummond by the Municipal Council which they set forth in a letter to Sir Nicholas Hannen, and it is essential for me to show that these allegations are false.

  Mr. Goodnow - The allegations do not carry any more weight than this correspondence.

  Mr. Phillips - Allegations have been made and now made public.

  Mr. Goodnow - All I want to do is save the time of the Court.

  Mr. Phillips - And on the 13th of July did you write arranging a meeting on the Friday? - Yes.

  Mr. Phillips - And did you have a letter the same day from Mr. Bland suggesting that all the documents should be read? - Yes.

  Mr. Phillips - Well, you were represented there by me and I      believe you heard that no discussion took place? - Yes.

  Mr. Phillips - Did you on the 27th of October, 1898, receive a letter from the Council in which they threatened proceedings? - Yes.

  Mr. Phillips - I ought to have asked you this question before. On the 9th of June, 1897, Mr. Burkill then Chairman of the Council addressed a letter to Sir Nicholas Hannen, then H.B.M.'s Consul-General. Did you have a reply? - No. This is the first time I have ever seen it and I only heard of its existence yesterday. I never knew of it and I think I am entitled to say that in my opinion any such letters that contain distinct imputations against me,

  Mr. Goodnow - Don't take any notice of it.

  Mr. Drummond - They had no right to write such a letter concerning me; to have such a letter written is distinctly unpleasant.

  Mr. Phillip - In paragraph 10 of the defendants' answer you are held in error for not reporting the matter to the Consul? - I got my deeds in the ordinary way.

  Mr. Phillips - Then also, in the answer, it is alleged that in 1862 when the purchase was made by the Council that it was not the custom to hand over the native fangtans, what is your knowledge as to that?

  Mr. Goodnow - Stay, Mr. Drummond, were you here in 1862?

  Mr. Drummond - No.

  Mr. Goodnow - Then you cannot answer that; you must only answer from your own knowledge.

  Mr. Drummond - I can only say that I never heard of it.

  Mr. Phillips - Have you ever heard of it during your practice in Shanghai? - I have not.

  Mr. Brenan - As a matter of fact fangtans must be produced when the land is sold.

  Mr. Drummond - You may only get a little corner of one but there must always be some sort of document. I passed through your land office an application for land outside the Settlement a week ago in which two of the fangtans were lost, and they have taken exactly a year to get two fangtans.

  Mr. Dowdall - That shows fangtans are required?

  Mr. Drummond - I don't think land can be acquired without them.

  Mr. Phillips - Now, Mr. Drummond, has it been your wish all through that there should be a thorough investigation into the matter either by way of arbitration or by some friendly arrangement? - Yes. I said at the commencement, let the whole thing be investigated and settled on its merits.

  Cross-examined.

  Mr. Dowdall - You don't know whether the boundary stones were taken down when the land was transferred? - No.

  Mr. Dowdall - Can you tell me whether the present plaintiffs were the owners of the land when this matter came into your hands. It would be convenient if you could let me know. They are not named in the title. - I cannot say.

  Mr. Dowdall - The notes sent to you by the Municipal Council for particulars of the lots for purposes of assessment does not show that the Municipal Council knew where the land was? - You had better get the document and look at it.

  Mr. Dowdall - The word Hongkew is written on it in pencil? The copy they sent me I don't think contained the word Hongkew, but I supposed they knew very well where the land was situated.

  Mr. Gilbert Davies was then sworn.

  Mr. Phillips - You are an architect and a surveyor? - Yes.

  Mr. Phillips - Practising in Shanghai? - Yes.

  Mr. Phillips - Howe long have you been practising here? - One or two years, but I might say I was in a surveyor's office for some years before that.

  Mr. Phillips - Were you in the Municipal Council's office as surveyor for some time? - Not as surveyor. I was in the Works Department.

  Mr. Phillips - How long were you there? - Nearly seven years.

  Mr. Phillips - Did you prepare that plan? - Yes.

  Mr. Phillips - Is it an accurate plan of that part of the Rifle Range? - It is taken from the City plan.

  Mr. Phillips - Will you refer to the schedule for 1890 and 1892 to adastral lot 476; what is the eastern boundary given to that lot in the schedule? - Unregistered land.

  Mr. Phillips - Will you turn to the same lot on the schedule for 1897 and tell us what the eastern boundary is?

  Mr. Goodnow - It is useless going on in this way. The schedules now form part of the exhibits and the Court is able to see them.  Mr. Phillips - Did you prepare the plan accompanying these two schedules? - Yes.

  Mr. Phillips - Was any schedule published between these two? - I don't think so.

  Mr. Phillips - What is the area according to the City plan of this lot 476? - Six mow, nine li.

  Mr. Goodnow - How do you get these figures? - From the City plan.

  Mr. Phillips - You made a survey of the two lots 708 and 714, and what is the area of the two lots? - Lot 714, two mow, three fun, six li and three haou, and lot 708 one now, nine fun, four li and eight haou.

  Mr. Goodnow - When did you make these figures? - Three years ago.

  Mr. Phillips - What is the area of the Rifle Range between these two lots? - Six mow, seven fun, two li, and seven haou.

  Mr. Phillips - Did you make the plan personally or was it made in your office? - It was made in my office from my figures. I took the area myself.

  Mr. Phillips - Was a survey made of the strips of the Rifle Range? - Yes.

  Mr. Phillips - Taking the area of the title deed six nmow, nine li, how far up the Rifle Range does that go? - It is now a road forty feet wide.

  Mr. Phillips - How far does lot 476 extend up the Rifle Range? - 1,000 feet.

  Mr. Phillips - From the end up towards the Butts? - Yes.

  Mr. Phillips - In the plan is the boundary of lot 476 shown by that red mark? - Yes.

  Mr. Phillips - And does that extend according to your survey 1,000 feet? - Yes.

  Mr. Phillips - Does that land up the Rifle Range correspond with the mark which indicates it on the plan? - Yes.

  Mr. Brenan - We understand that cadastral lot 476 is exactly the same mowage as in certain title deeds? - Yes.

  Mr. Phillips - The area of the cadastral lot you say is six mow, nine li, and is that the area of the land which the Municipal Council now claims? - Yes.

  Mr. Phillips - What would be the area of lot 476 including the two disputed lots 708 and 714? - Ten mow, four li, one haou.

  Mr. Dowdall - I have no questions to ask.

  Mr. Phillips - That then is my case.

  Mr. Dowdall - I will now state my case, and as set forth in my petition it seems to me all I have to do is simply bring evidence before the Court that the land claimed under Mr. Drummond's title deed is contained in the title-deed held by the Council. I shall now bring evidence to show that one of the links in Mr. Drummond's title is defective, on account of the bill of sale, on which the title deed was obtained, being a forgery. I will now call Mr. Hykes if you would like to ask him about the title deed which he has examined in this Consulate.

  The Rev. R. Hykes was then called and was about to be examined by Mr. Dodwall when

  Mr. Phillips said - I am very glad to see Mr. Hykes, but I don't know who he is. I have never seen him before.

  The President - The Rev. John R. Hykes, Agent of the American Bible Society at Shanghai.

  Mr. Dowdall (to witness) - You have got the papers of the registered land at the U.S. Consulate. Would you please give the Court an explanation of what these papers are.

  Mr. Hykes - In the first place there is the deed of sale dated the 9th year of Huang Hsu, 8th moon, day blank. The deed of sale reads:

Shen Leo-shi and Shen Yuen-fang, being in pecuniary difficulties and urgently requiring money for legitimate purposes, have, voluntarily, through Hsi T'ing-hsin and others as middlemen, sold their ancestral inheritance, situated in the pao 24, t'u 1, Tsu character, number 109, and containing three mow, three li, and two haou, and by these presents do sell and transfer to Fei family (due). It is agreed by the three parties to this transaction that the sum of 240,000 cash shall be paid on the day the deed is written and signed. The money shall be paid over on the delivery of the deed. After the transfer of the land, the buyer shall pay all taxes, and shall have full liberty to cultivate it, erect house thereon, open drains, dig wells, plant hedges or trees without molestation. This is a voluntary agreement on both sides and may not be repudiated or repented of. In witness whereof we have executed this deed of sale to be held by the buyer. Accompanying this deed is the larger half of a land certificate in the name of Shen Mia-chia.

  Boundaries. Southern plot, Chu's creek; North, road; East, Ch'en's field; West, passage. Northern plot; South; road; North, Shen's field, East, Ch'u's field; West, Shen's passage.

  Kuang Hsu. 9th year, 8th moon --- day. The sellers Shen Leo-shi and Yuen Fang (mark). Middlemen, Hsi T'ing-hsin, Fei Kin-pao, Wang Kin-soi (all signed by mark).

  Shen Wang-kwan (X) Leo Wo-hien (no mark), Ch'e Kwei-san (seal), written by Shen Hsio-san. The title deed reads:

TITLE DEED FOR REAL ESTATE.

The Magistrate of Shanghai District, in the Prefecture of Sungkiang, province of Kiangsu, hereby issues his Certificate to hold real estate and for the purpose of collecting the grain tax. The particulars as to the people's land having been in a state of confusion for a long time, the Board of Restoration has received instructions as to the management of such cases and the method of procedure to be followed by all owners of land, which is to be measured according to Parishes (T'us). In regard to the owner hereinafter mentioned, the number under which he holds his land, and the area of the same have been duly recorded in the Land Register. In addition thereto this certificate is given him to hold and by which to pay his grain tax. This is a necessary document.

Location: Pai 25, Chu, 1, Character,"Yu," No. 100.

Owner. - Shen Ming-chia.

Area, - 4 mow, three li, 2 haou.

Given this ......... day of the ....... Moon of the 5th year of Hsiern Feng (1855).

Endorsement No. 1 -

This part of the Document contains only 1 mow, 3 fun, 3 li and 2 haou.

Mr. Phillips. - May it please the Court. I object to all this. Apparently it is only done with a view of suggesting some irregularity in respect of the way in which my client or the beneficial owners have become possessed of this piece of property. What right, I ask, has Mr. Dowdall, on behalf of the Council, to attempt to impugn our title at all until he has produced something to show he has a title to it; he has not shown a scintilla yet in respect of these two lots. I submit he must first show the Court that he has some right to ask such questions for no person may come into Court and off-hand proceed to ask questions of this sort, without showing some original right to impugn the title of my client. Before he can establish the right to ask these questions he must supply that deficiiency by showing to the Court that he has some sort of title to these two lots.

  The President - There has been a deed put in here numbered 760 which covers lot 767, which it is said covers this ground. I take it that Mr. Dowdall will prove that it does, but so far I cannot see how.

  Mr. Phillips - It seems to me it is an entirely different branch of the matter, and before he is entitled to place this branch before the Court, he must first show his right to the land.

  Mr. Dowdall to witness - Look at the Tipao's signature.

  Mr. Hykes - Yes, that is the signature of the Tipao. It seems to be a document which comes in prior to the one given to Mr. Drummond.

  Mr. Dowdall - Does that appear to be the signature of Shen Leo-shi?

  Mr. Hykes - It reads Shen Leo-shi and Yuen Fang. There is a x after both names, but there is no cross after Lee Wu'chiens's name.

  Mr. Dowdall - Is that bill of sale properly completed and filled up?

  Mr. Hykes - It looks correct; the only omission is Shen Leo-shi.

  Mr. Dowdall - Look at the fangtan.

  Mr. Hykes - It is divided into two portions; one part being for the bill of sale in 707 and 708 and the other part for lot 714.

  Mr. Dowdall - Would it be too much trouble to read the fangtan?

  Mr. Hykes - Endorsement No. 2, in the 22nd year of Kuang Hsii (1896) the land contained in the one corner of the original certificate, was measured and found to contain 1 mow, 2 fun, 9 li and 8 haou, and this was leased to Mr. W. V. Drummond, a foreign merchant, by Fei Kwan-hsing and a new title deed, No. 708, was issued by the U.S. Consulate (U.S. No. 708).  In buying and selling this land this certificate must be regarded as evidence (of ownership), and must accompany the deed of sale, when presented for sealing and registration and the filling in of blanks (particulars) and transfer of ownership on the tax register. The certificate issued in the 48th year of Kien Lung is not to be regarded as evidence (of ownership). It has been cancelled.

  Mr. Hykes, continuing said - The other one is the same with the exception of the following endorsements:

Endorsement 1. - This part of the document contains 1 mow and 7 fun.

Endorsement 2. - In the 22nd year of Kuang Hsu (1896) the land covered by this certificate was measured and found to contain only 1 mow, 5 fun, 7 li, 5 haou, and 3sz, which was leased by the owner Fei King-san to Mr. W. V. Drummond, a foreign merchant, and a new deed No. 714 was issued by the US. Consulate for the same.

  The President - As I understand it these fangtans are issued by the district magistrate giving the title to the Fei family?

  Mr. Hykes - It is my impression that during the Rebellion the title deeds of a great deal of property in and about Shanghai were lost and in after years people in order to get proper title were required to bring particulars of their property to the Magistrate who upon satisfying himself issued these fangtans in lieu of the original title deeds which had been lost.

  The President - That is they were practically title deeds issued by the Chinese Government or officials in lieu of those fangtans which were lost?

  Mr. Hykes - Yes, that is my idea.

  Mr. Dowdall - There are the characters of the Tipao's name and the witness's name Leo Shen-shi on both bills of sale.

  Mr. Hykes - They are the characters. They speak here of the fangtans being issued in the 5th year of Hsinfun (1855) to Shen Ni-jao.  The bill of sale from Shen Leo-shi is dated the 9th year of the present emperor 1883 or 1884. I do not know which.

  Mr. Dowdall - Ought not that bill of sale be endorsed on the fangtan?

  Mr. Hykes - It is usual to have it so endorsed.

  Mr. Dowdall - Is the transfer to the woman Shen Leo-shi?

  In reply to further questions by Mr. Dowdall Mr. Hykes stated that though the names given in the two bills of sale were pronounced in the same way the characters were entirely different.

  Mr. Dowdall - You were occupying the place of Mr. Emens in the U.S. Consulate when the transfers were made?

  Mr. Hykes - I was doing his work.

  Mr. Dowdall - If it had been reported to you that there were foreign boundary stones standing on the land referred to in the fangtan would you have taken any steps?

  Mr. Hykes - I would have reported it to the Consul-General as a matter requiring investigation. I knew nothing about any foreign boundary stones being on the land.

  Mr. Phillips - I have no questions to ask.

  Sung Way-chou was then called and his evidence translated by Dr. Hykes. He said - I live in the Louza district and am 55 years of age. I was formerly in the rice business; growing rice in some fields I had in the country and bringing it for sale in Shanghai. I was tipao for about 15 years altogether, commencing in the ninth year of Kuang Hsu, fourth moon. It was in the 20th year of Kuang Hsu that I ceased to hold office as tipao in the district in question.

  Mr. Goodnow - That is to say about twelve years altogether?

  Witness, continuing, said - Yes; but although I was not actually tipao I was doing that official's duties for a period covering about 15 years, the time I was actually tipao being about nine years. The first year I was tipao commenced in the ninth year, second moon, of Kuang Hsu and ended in the twelfth year, fourth moon.

  At this stage the Court rose for the day.

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