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SUPREME COURT.
27th July.
IN ORIGINAL JURISDICTION.
BEFORE THE HON. W. M. GOODMAN (Acting ChiEF JUSTICE.)
LI CHING AND OTHERS V. WONG YIK AND ANOTHER.
Judgment was given in the case in which Li Ching and others sued Wong Yik and another for an injunction to restrain defendants from allowing their premises in West Street to continue in use as a public latrine for Chinese.
Mr. Robinson (instructed by Mr. Ewens) appeared for the plaintiffs and Mr. Francis, Q.C. (instructed by H. L. Deunys), appeared for the defendants. The case was heard on the 22nd. 23rd, and 25th July before the Acting Chief Justice, without a jury.
•
THE HONGKONG WEEKLY PRESS AND
[August 1, 1895.
side, to the latrine. He stated that he did not Mr. Francis, Q.C. (instructed by Mr. Hast. mind the latrine, that it did not interfere withings, of Mr. V. H. Deacon's office), appeared his comfort, his appetite or his health, and that for the plaintiffs, and Mr. Phillippo for the his customers did not object to the odour from the defendants. latrine, though two of them objected to the smell of the disinfectants recently required to be used. Indeed, the barber stated his business had in- creased. The barber's experience, however, does not appear to be that of the less fortunate plain tiffs, tenants of Nos. 21 and 19 on the other side of the latrine. The smell (the 32 pans were not covered pans), which several witnesses described as" awful," seems to have been wafted rather in their direction than in the direction of No. 25. One of them, after complaining of it, left No: 19 altogether, and the other, a stationer, stated that he would have left except for the fact that the action was pending and he hoped for relief from the Court, and that he had him $20 to remove them, even if he could find spent $150 in fixtures, and it would cost suitable premises elsewhere. To a Chinaman in a small way of business $20 represents a far larger sam than to many Europeans. I see no reason to doubt Mr. Leigh's evidence that the tenants of 21 and 19 cannot fail to experience a "sickening stench, worse in summer than in winter, in the case of a latrine situated as this latrine is situated. Mr. Leigh went several times to these premises before giving evidence. I grant, therefore, in this case an injunction to restrain the defendants, their servants, &c., from using or causing or permitting to be used No. 23, West Street as a latrie so as thereby to create a nuisance and annoyance injurious to the plaintiffs or either of them. If any difficulty as to form of decree should unexpectedly arise, I shall be happy to settle it in chambers, but it is I understand the claim really a simple matter.
for damages is not pressed, and I allow the plain- tiffs their costs, to be paid by the defendants.
26th July.
IN BANKRUPTCY.
BEFORE THE HON. W. M. GOODMAN (ÀCTING CHIEF JUSTICE).
RE MAK SAI MUN alins MAK SY MON EX PARTE LAU CHIN, A CREDITOR. Mr. Reece appeared for the petitioning creditor and asked for a receiving order.
Mr. Stephens stated he appeared for a judg meat creditor.
Mr. Reece objected that Mr. Stephens had no losus standi in these proceedings, which were between the debtor (who did not choose to appear, although served in due course with the petition and with due notice of the proceedings) and the petitioning creditor.
His Lordship said-The writ in this suit was issued on the 9th January, 1895. The plaintif Li Ching, is the registere owner of the land and houses known as Nos. 19 and 21, West Street. No. 21 adjoins the latrine which is situated between Nos. 21 and 25, and No. 19 is next door to No. 21. The plaintiff, Mak Kwok, resides and carries on business on the ground floor of No. 21, West Street, and is a tenant of Li Ching. The plain- tiff, Ma Chi Pong, resided and carried on business on the ground floor, of No. 19 and was also a tenant, but has left the premises since this action was brought and before the hearing The material question is whether the annoyance produced by the latrine was and is such as materially to interfere with the ordinary com- fort of the plaintiffs, occupiers of Nos. 21 and 19. The latrine in question contains 32 seats, is frequented by probably at least 3,000 persons every day, and is one of a row of houses. A small charge is made for the accommodation, and the defendants derive such profits as aceruo from the use of the place as a latrine. In con- sidering whether this latrine constitutes a nuisance with regard to which an injunction ought to be granted, no doubt all the circumstances should be considered. One must bear in mind the locality, the neighbourhood, the habits of the Chines people of the class that usually reside in the district, and the fact that Chinese p ople, of a certain class, are by no means fastidious with regard to smells-which might be extremely offensive to some Europeans. I am certainly not of opinion that, if due care is taken in the choice of site and with regard to ventilation and sur- roundings, a latrine inast of necessity be a nuis. ance. I quite agree that, as Vice-Chancellor Knight Bruce said, in Walter v. Selfe, 4 De Gex and Smale's Reports. p. 332, The inconve- nience," justifying an injunction, ought to be more than one of mere delicacy or fastidiousness; it ought to bo one materially interfering with the ordinary comfort, physic lly. of human existence." Now, what are the facts in this case ?
As usual the evidence is conflicting, This, however, is clear, that the latrine in question is one of a row of small houses in a densely crowded and somewhat narrow street. It was stated by one of the expert witnesses that a latrine ought to have 25 feet clear all round it, and that, then, if properly managed, it would not cause nuisance, unless in exceptional states of wind and weather. I do not propose to attempt to lay down any hard and fast rule in such cases Each application must be judged on its own merits, but I may, at least, point out that very little caro seems to have been taken in the selection of the site for this particular latrine. Considering the habits of the Chinese, latrines may well be a necessity, but there is no reason27 Q.B.D. p. 182 he was not quite in time to why suitable sites for such places should not be selected and due care be taken to prevent them becoming nuisances, materially interfering with the ordinary comfort, physically, of those in the immediate neighbourhood. The two plaintiffs, Mak Kwok and Ma Chi Pong, complained, in writ- ing, to their landlady a few days after the latrine was reopened on 26th December, 1894. They com plained also to the rent collector before the writ was issued, and after carefully considering the evidence I believe this action to have been brought bona fide, and I find, as a fact, that the stench did, in their cases, amount to a nuisance, at and before the issue of the writ. I find also, as a fact, that the unisance materially increased with the advent of summer and warm weather. depot forget the evidence of the barber ad at No. 25, ground floor, next, on one
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The Acting Chief Justice asked Mr. Stephens whether he could refer to any authority in support of his position.
Mr. Stepheus replied he could not and it was, accordingly, decided he had no locus standi, though the Court held, as an act of grace, it would hear Mr. Stephens as amicus curia before the order was made.
Mr. Recce then, proved the debt service of petitious, and act of bankruptcy, and that $600 were in Court available as assets.
Mr. Stephens then urged that it was hard this creditor had delayed till after Mr. Stephens had obtained a judgment in the Summary Court and then by bankruptcy proceedings had endeav- oured to deprive bim of the fruits of his judgment.
The Acting Chief Justice said that if Mr. Stephens had "received the debt" attached he would have been safe, but under section 38, sub- section 2 (d), and the case of Butter v. Waring,
prevent this application being successful, The object of the bankruptcy laws was to procure equal distribution of assets and there was no reason in the circumstances why the receiving order should not be made.
Order made accordingly.
24th July.
IN SUMMARY JURISDICTION. BEFORE MR. T. SERCOMBE SMITH (ACTING PUISNE JUDGE).
WON YIH WAN V. CHEUNG KAM TIN AND CHEUNG CHIN SHI.
This was an action in which the plaintiff sued for $340.50, money lent to Cheung Chin Shi, and $9.50 costs.
Mr. Francis said the claim was for money due being balance of principal and interest borrowed by Cheung Chin Shi, who was the wife of Cheung Kam Tin, and who borrowed the money for the purchase of necessaries. Cheung Kam Tio was compradore to Messrs. Meyer and Co. He was a very wealthy man and had property in Hong- kong and also on the mainland of China. The defendants had been married 26 years, but three years ago they quarrelled, and Cheung Kan Tin refused to live with his wife, and for a long time gave her no money for her maintenance. The consequence was that Cheung Chin Shi incurred a considerable number of debts in order to support herself. In 1893 and the beginning of 1894 three actions were brought against Cheung Kam Tin by creditors of Cheung Chin Shi for money lent to her. In two of them Cheung Kam Tin was held liable and judgment was given against him, and one was dismissed on the ground that there had been collusion, and the claim was a false one. Cheung Chin Shi also brought a suit against Cheung Kam Tin for $1,000 for twenty months' maintenance, but this action was dismissed on 15th December, 1893. At the same time Mr. Ackroyd, then Acting Chief Justice, saw the parties in Chambers and it was arranged that Cheung Kam Tin should allow his wife $40 a month for her maintenance. On the 11th May Cheung Chin Shi saw the plaintiff, and told him she wanted to. borrow- $300 or $400, as she had not enough to live upon, sud she required the money for necessaries. He advanced her the money on the understanding that her husband would pay him back.
Evidence was then called in support of this statement.
The plaintiff spoke to saving the woman at her house in Hollywood Road. He asked her what she wanted the money for, and she said her husband allowed or $40 a month, but that was not sufficient. She added that her husband promised to pay off all her debts, but he did not do so.
He bad received five months' interest on the money,
Cross-examined-Witness was sometimes a steward and sometimes a cabin hoy. He used to be on the Empress of Japan. He was not doing anything now, and received money from his mother, When Cheung Chin Shi came to him first about the money he went and saw his mother in the country and obtained the required amount from her.
Cheung Chin Shi was also called and said that her husband was compradore for Messrs. Meyer and Co. He received about. $3,000 a year, and he had property in Hongkong worth botgeen $80,000 and $100,000. She quarrelled with him because he had other wonen in the house, and she left him in 1892 Up to 1893 no money was given to her, but since 1893 she had received $10 a month. She was obliged to borrow money from the plaintiff, because she was in want of necessaries.
Mr. Phillippe, for the defence, said that Cheung Kam l'in was not responsible for any It was arranged debts contracted by his wife. by Mr. 'Ackroyd that she was to have $40 a mouth, and the husband could not be held liable if she contracted debts after having that allow- auce for her maintenance.
His Lordship resorved judgment.
25th July.
મ
His Lordship delivered judgment as follows This is an action brought by the plaintiff to recover from defendant a sum of $300, and in- terest, lent to defendant's wife for, and expended by her in, the purchase of necessaries during her separation from her husband, It is not disputed that the money was lent by plaintiff to defendant's wife, that it was lent during separation, and lent for the purchase of necessaries, and that it was spout upon necessaries. The only question is whether defendant is liable for this debt incurred by his wife. In order to render le- fendant liable it lay with the plaintiff to prove that the parties were living apart either on account-of-the-husband's misconduct, the wife being left without adequate means; or by mutual consent, the husband having agreed to pay the wife an allowance but neglected to do In either alternative the wife becomes an so.
agent of necessity" to supply her wants
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