"Between 1872 and 1938 the Council made no serious attempt to collect a tax on fan-tan' land, although it put on record that it was legally entitled to levy it and would endeavour to collect it.... The reason why the Council did not collect a tax on fan-tan' land between 1872 and 1938 was not because it was not legally entitled to tax such land, but an account of the following reasons: 1, the difficulties in ascertaining the owners of fan-tan' land, due to lack of proper registration. This difficulty hàs been exemplified by the evidence offered by the plaintiffs. The illegal practice of cutting fangtans' and failure to register transfers have created further confusion; and 2, be~ cause in the early days of the Settlement, most of the unregistered land was wholly agricultural and not considered worth while taxing, as the revenue which it would produce, would probably not have covered the cost of its collection. This reason does not apply now for some of the fan-tan' lands, and particularly the Jand of the plaintiffs which -is the heart of the Settlement and revenue producing."
A tang tan', Mr. Bryan explained, is in reality a perpetual lease issued by the emperor to the occupant of the land on condition that he pays the ground rent, and failure to do so subjects the land to confiscation and the reversion of the title to the emperor. The term 'Consular Title Deed', he declared, is a misnomer, for technically it is in the same cate~ gory as a fan-tan' which is not a title deed but a perpetual lease. The original owner or vendor re-languishes all rights which he may have to the property and grants a title in perpetuity. The principal difference between a fan-tan' and a consular title deed is that a fan-tan' is only prima facie evidence of title while a consular title deed is conclusive evidence. The, legal affect of the new land certificate is the same og that of a consular title deed and is cgnelusive evidence of title."
Plaintiffs' Unclean Hands Mr. Bryan submitted that plaintiffs were estopped from claiming custom, adding "Because the failure to en~ force consistently the tax on fan-tan' land is due not to the fault of the defendant, but in part due to the difficulties raised by the plaintiffs themselves. In other words the plaintiffs do not come into court with clean hands and are, therefore, not entitled to the equitable remedy of mandamus prayed for."
'After asserting that fan-tan' land cannot be exempted from taxation and review a consideration of the Land Regulations, Mr. Bryan went on to say:
Before doubts can arise as to the construction of the powers conferred by the Land Regulations, such doubts must arise in the minds of the political departments of either the foreign powers or the Chinese Government. As far as I know, no doubts have ever been expressed by the political departments of either the foreign powers or the Chinese Government. The political department of the Chinese Government has not, as far as I know, ever filed any protest. In this case there can be no doubt that the Council by virtue of the proclamation of Taotai Lan and the Land Regulations, is clearly entitled to tax "tang tan' land. The fact that plaintiffs refuse to comply with the law and pay their taxes, does not in any way indicate that there is any doubt as to the proper construction. If the law is as plaintiffs contend, it would be possible to make every legal case arising out of the Land Regulations a political matter, and this is prob~ ably exactly what the plaintiffs are endeavouring to do,..."
Text read from the printed page and cleaned; old type leaves the occasional error.