28
APPENDIX TO REPORT FROM THE LAND COMMISSION OF 1886-87.
+
The Proclamation of 1st May, 1841, would seem to have provided for the abolition of merely possessory Titles up to that date and in subsequent Crown Leases the Legislature may have considered that the Crown had already provided for the prevention of merely possessory Titles, inasmuch as amongst the covenants for Title contained in the Crown Leases for which a condition of re-entry is imposed is one that "the Lessee shall not nor will let underlet mortgage or otherwise assign over or otherwise part with all or any part of the land leased for all or any part of the term demised without at the same time registering such alienation in the Land Office, or in such other office as may hereafter be instituted for the purposes of registration in the said Colony of Hongkong and paying all reasonable fees and other expenses thereon."
If the Attorney General were not counsel for the plaintiff I should perhaps have thought it necessary that he should be served with notice of this question being raised on a Crown Lease so that he might take any steps on behalf of the Crown that he might consider advisable. As it is he has notice of the suit and will as a matter of course take steps to protect the interests of the Crown if he considers such interests involved.
As the case stands at present I must hold that the defendant's right to the possession of the premises is barred by the Statute 3 and 4 Wm. IV. C. 27, which I take it is in force in this Colony as it has been decided to be in India and recognized as it has been to a certain extent by Ordinance 13 of 1864, subject to any legislation which may have affected it.
As neither the Proclamation of 1841 nor Ordinance 3 of 1844 as it seems to me in any way prohibits possessory titles as between individuals or even as against the Crown, the law of England in respect thereto must be considered to be in force here.
The defendant therefore in my opinion has not a legal right to the possession of the premises in question.
The effect of this finding is governed by the Agreement filed in the cause aud is equivalent to a Judgment for the plaintiff.
No. 3.
Appendix No. 4,-Continued.
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Suit No. 69 of 1884.
Between CHUN YIK CHUNG AND OTHERS, Plaintiffs,
and
M. J. D. STEPHENS, Defendant.
Judgment of the Honourable Sir George Phillippo, Kt., Chief Justice, delivered 6th March, 1885.
In this action the question was mainly one of boundaries between the possessors of Marine Lot 184 and Marine Lot 185.
The Plaintiffs the Owners of Marine Lot 185 complained that the defendant who was the Owner of Marine Lot 184 had pulled down a wall of a house belonging to them and was also preparing to build upon a narrow strip of land belonging to them which the defendant claimed as his property so as completely to deprive the plaintiffs of light and air through the windows of their godowns and the plaintiffs claimed $500 for damages and that the defendant might be restrained from trespassing on their land.
The hearing lasted for some days and a considerable number of maps and plans and Title Deeds were put in evidence. The vivá voce evidence consisted in great part of the evidence of skilled Witnesses, Mr. DANBY on the part of the plaintiffs and Mr. HANCOCK on the part of the defendant. Their evidence, as is usual, was somewhat conflicting and if I did not see my way to come to a conclusion without deciding as to which of them was in the wrong I might have considered it necessary to refer their plans and evidence to some qualified and disinterested Surveyor for my guidance in the matter. I do not think that this is necessary, however, because their measurements were not taken from exactly the same stand points and there seems to me to be sufficient evidence to enable me to dispose of the case without reference exclusively to