The action of General Yang Chun-chang, former commander of the 0th Division of the Nationalist Government forces, who is seeking recover Tls. 90,000, $1,500, costs and further or other relief from 4H, 'T, Wade on charges of alleged fraudulent misrepresentation—in securing French registration for the str, An Lan, vas continued on January 21 in H, M, Supreme Court Before his Honour Judge King.
Mr. E, L. Hartopp was for the defence and Mr. John MeNeill for plaintiff.
At the opening of the hearing Mr. MeNeill told the Judge that he was unable to find Capt, Ma, despite several efforts. He had received letter from Capt, Ma's mother, who said that she would forward a letter, written by Mr, MeNeill, to her son as soon 'a8 she learned the latter's address. Judge King then asked if counsel Wanted to adjourn again, bat Mr. MeNeill said he thought it was hopeless, as it was impossible to find Capt, Ma, and there was no use in adjourning any longer.
Mr. MeNeill asked permission to examine one more witness before Mr. Hartopp's summing up. This witness was a supervisor who had had charge of the loading of the 'An Lan in Nantao on May 21, 1928, and he wanted to examine him on Gapt. Eric d'Bisschop's statement Yogarding the French flag that had eon painted on the ship. The Fudge said that the case was' in curious state, witnesses were continually failing to appear.
The application was refused.
Mr. Hartopp then commenced his summing up, at about 10.30 a.m, and did not finish until after 4.15, pim,, the usual adjournment having taken place from 12 noon to 2.15 pin. He held that it was not the duty of his client to inform plainiff of withdrawal of the flag by the French authorities, Judge King asked why not, and' reply was that the action now brought was for tort, not for breach of contract but for breach of law. Defendant had done all he could, by informing JCapt. Ma that the French registration had been cancelled.
Another of Mr, Hartopp's arguments was that there was no evidence as to what had happened to tthe steamer after it had been commandeered in Hankow on June 6, 1928, General Yang, plaintiff, might have recovered it, himself after a few days, Judge King then asked why counsel had not asked General Yang a question on that Point. Counsel held that theze was evidence as to what had happened to the steamer, and that therefore no damages could be proved. Mhe Judge pointed out that the evidence of the electrician was that the ship had been run for some hix months after this date by Capt. Ma, and that it carried arms and Ammunition from Hankow Ichang, and opium on the return trip.
To enable plaintiff to win, said counsel for the defence, the Judge must satisfy himself that defendant made an act, false to the knowledge of defendant, with intent that action upon it would cause detriment. and loss. Mr. Hartopp asked that the action be dismissed with costs.
Just before Mr. Hartopp coneluded Judge King asked why no reference had been made by defence fo plaintiff's claim for $1,500 as money had and received by the de fendant to the use of plaintiff. Hartopp's argument was that this money had been properly disbursed, hile Mr. McNeill said that plaintitt was not tackling this point quite strenuously, as the sum involved was comparatively small.
The Court adjourned.
The action was. continued on January 22, Mx. MeNeill said these was quite sufficient proof the ownership of the vessel bby the plaintiff, in which ease the defendant as agent was estopped rom denying. the title of hie prince Mr. MeNeill went on then to deal with the relationship of the parties the action and mentioned that it was quite clear. from the evidence that the formal contract of February 4 between plaintiff and Mr.
Berthet was notting more than a document transferring the ship and empowering Berthet to go through the necessary formalities to resister it, There was, in fact, another contract between the defendant and the plaintiff. 'That contract was contained in a verbal arrangement between Mr. Kwok, the plaintiffs agent, and the defendant on Febru ary 4'and by two letters on February 6 and 9. This was substantiated by all the' evidence, including the matter of fees which were paid to the defendant. Furthermore, said counsel, Berthet denied all responsibility' in the evidence.
In eross-examination, said counsel, plaintiff pointed out that he relied on Wade, the defendant, and this was substantiated by the attitude of Berthet, Wade and Berthet tried to shove the responsibility on to each other: Berthet said that he took responsibility for the actual registration of the ship.
After this, counsel dealt with th Alleged misrepresentations. As to the first misrepresentation, the evidence showed that defendant had represented that the vessel could be properly registered, although he admitted that the registration was not proper. Defendant admitted that he felt the registration was dishonest and, in fact, M. Barraud's evidence' showed that it could not and was not properly registered. Moreover, although defendant considered it to be dishonest, said Mr. MeNoill, he never made any inquiries to ascertain this. Further, Mr. MeNeill pointed out, the reistration should have been for one year: Tt was on the books of the French Consulate-General but it might have been struck off at any moment. Defendant took no steps to find out whether the registration could or could not be effectively Continuing, Mr. MeNeill pointed out that the' second misrepresent-_ tion was that defendant did not inform Mr. Kwoh that permission to fly the French flag had been withdrawn, and this resulted in the seizure of the An Lan. According to a statement of Capt. Bishop, the French flag was painted on both sides of the vessel, but Mr. MeNeill contended that this was not so as no French colours had ever been paint. ed on the ship, He asked the Court to accept Mr. Kwoh's statement that he saw no flag and said that th statement had been substantiated by letters which had been introduced. Couns pointed out that he to call a witness to the statement of Capt. Bishop was untrue and that the French had never been painted on 98 of the An Lan.
Referring to Capt. Bishop's statement that, during an interview with the French Consul-General, the was given to understand that the reason for the cancellation of the registration was because the French Consul-General believed the vessel was to be used for improper purposes, viz, ing, Mr. McNeill said that that Berthet did not and could not prove ownership. Capt. Bishop had used his imagination.
authorities in support of his conten-After counsel cited many tions and judgment was reserved.
Text read from the printed page and cleaned; old type leaves the occasional error.