July 16, 1896,1
was any contempt of Court intended, but I felt it my duty to call attention very strongly to the matter. Before I took any steps I had a cons ference with the Chief Justice, and so I am not acting alone. I wish to add that I am glad that one newspaper at any rate had the discre- tion to avoid publishing it or obtaining the thing directly or indirectly.
The case was then proceeded with.. Mr. Hastings first of all asked leave to reduce the claim to the sum of $82.32..
Mr. Johnson offered no objection and the amendment was made.
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CHINA OVERLAND TRADE REPORT.
Board, which was established by the Public Health-Ordinance 24 of 1887. The Board was to some extent a legislative body, as it had ex- tensive powers of making by-laws, but it was also an executive body, having certain duties to perform which were carried out by its ser- vants. These duties must be performed strictly in accordance with the powers conferred on the Board by Ordinance, and if the Board went beyond those powers and did acts which were unauthorised they became trespassers and were liable in damages accordingly. It was therefore incumbent upon the Board to justify their pro- Mr. Hastings, in explaining the facts of the ceedings in this case by some legislative case, said the plaintiff was the owner of houses authority, and in the third paragraph of their Nos. 80, 82, 84, 86, 88, and 90, Queen's Road answer they justify their action under the pro- East. The houses were comparatively new, visions of the Closed Houses and Insanitary having been built seven or eight years ago, and Dwellings Ordinance, 1894, and by the by- they contained on the ground floor certain mez- laws made thereunder. Before referring to saaine floors or cocklofts extending from the back the provisions under that Ordinance counsel of the shop to more than one-third the length submitted two points to his Lordship. The of the shop. In April last the plaintiff, hearing first was that these cocklofts were perfectly there was some question raised by the Sanitary legal as they stood; and the second point was Board about cocklofts and wishing to be on the that even if they were illegal there was no safe side, instructed Mr. Lemm, an architect, to power under the Ordinance or under the by prepare plans of the cocklofts in the houses and laws authorising the Sanitary Board to pull to submit them to the Sanitary Board for ap them down. On the contrary, a different proce- proval, and to obtain their permission to retain dure was laid down by the Ordinance. Section 7 the cocklofts. Accordingly Mr. Lemm pre- of Ordinance 15 of 1894 repealed section 24 of pared the plans and sent them in to the Sani- Ordinance 15 of 1889, the Building Ordinance. tary Board requesting permission to retain the Sub-section 24 of that Ordinance was repealed cocklofts in that form. In reply he received a by sub-section 1 of section 7 of Ordinance 15 letter from one of the defendants, Dr. Clark, of 1894, and it ran as follows-"It shall not be asking whether the houses in question lawful to construct, put up, continue, or had been erected since the passing of the maintain in any room of any domestic building Ordinance 15 of 1894; if not, no permission now or hereafter. erected or in course of was required from the Sanitary Board for the erection any mezzanine floor, storey, or cockloft retention of the cocklofts, provided there were where such room is partitioned or divided off no partition rooms either above or below the into separate compartments without the per- loft. Mr. Lemm then informed Dr. Clark that mission in writing of the Sanitary Board." these houses had been erected before the pass-Therefore in order to bring a cockloft within ing of the Ordinance 15 of 1894, and, moreover, that sub-section the room in which it is that there were no partition rooms either above must be partitioned or divided off into sepa.ate or below the loft except ingone case, No. 90, compartments. Therefore, it was clear that and that was forthwith removed. Therefore sub-section did not apply to this case; and it these cocklofta complied with the requirements was admitted by Dr. Clark in his letter that no stated by Dr. Clark, and if his letter was permission was necessary. Sub-section 2 of correct no permission was required from the section 7 referred to buildings erected after the Sanitary Board for their retention, and conse- passing of the Ordinance; the houses in question quently no permission was obtained. "On the 8th were erected before the passing of the Ordinance, May last, within a month after the receipt of Dr. and he (counsel) thought it was perfectly clear Clark's letter, certain officers of the Sanitary that neither of those two sub-sectious applied Board and a gang of men, consisting of soldiers to the present cocklofts; it could not be argued and coolies, went to the houses and proceeded that the sub-sections applied to them. There to pull down the cocklofts, or portions of them. fore, what was the law with regard to these They did not treat all the houses alike. In cock lofts? The provision which is sontained No. 80 they pulled down a portion of the in the Building Ordinance was repealed, and cockloft at the back of the shop about four the consequence was that with regard to the feet in width; in No. 82 they pulled down cocklofts erected before the passing of the Or- the whole cockloft: No. 84 they treated in dinance, and in which there are no partition much the same manner as No. 80, pulling rooms, there were no limitations laid down by down a portion of the back; in No. 86 the law as far as counsel had been able to dis- they pulled down the back of the cockloft cover. Therefore he submitted that the cocklofts and removed the floor to the extent of four were perfectly legal and did not contravene any feet on each side; in No. 88 they pulled Ordinance of this colony; indeed Dr, Clark, by down a portion of the west side measuring his letter, impliedly admitted as much. The next about 7 feet 8 inches; in No. 90 they pulled section to which counsel would call his Lord- down a portion at the back of the shop. Not only ship's attention was section 11, which gave the did they do that, but they actually removed a con- Board power to inspect premises upon reason- siderable amount of the materials of these cock-able notice to the occupiers or owners. In this lofts, boardings and joists, and carried them away. After that some correspondence passed. On the 15th May he (counsel) wrote to the Secretary of the Sanitary Board mentioning the pulling down of the cocklofts in the houses and pointing out that there was no justification for pulling down the cocklofts as they were in no way illegal. He therefore requested the Board to re-imburse the owner. No answer was received to that letter, and on the 3rd June he again wrote regretting that no reply had been sent to him, repeating the claim for damages, and asking if the Board admitted their liability; if they did not proceedings would be taken. On the same day Mr. McCallum, the Secretary to the Board, wrote asking if counsel's client would specify clearly and distinctly where these premises were and what they were, although counsel had alearly specified the premises on the 15th May. On the 4th June Mr. A. B. Johnson wrote replying to the letter of the 15th May and stating that the Board, after consideration, were unable to comply with the request contained in the last paragraph of the letter, and the correspondence closed: With regard to the law of the case counsel mentioned that the first five defendants were members of the Sanitary
case
Do notice was given to the occupiers or owners of the houses before the cocklofts were pulled down. Under that section "the Board had power by its officers to enter and inspect, upon reasonable notice to the occupiers or owners, any building and cartilage for the purpose of ascertaining the sanitary condition, cleanliness, or good order thereof or of any part thereof, and of the partitions, mezzanine floors, storeys, and cocklofts.". Therefore if they en- tered and inspected they were perfectly within their powers.
His Lordship-Upon reasonable notice. Mr. Hastings-Yes, upon reasonable notice. Continuing, counsel said that his Lordship was aware that if a man entered a place under his powers and committed an act beyond his powers he became a trespasser. Supposing the cock- lofts were not legal section 19 laid down the procedure which the Board should have taken. Subsection B said "Every person who shall construct, put up, continue, or maintain any balcony, verandah, mezzanine floor, storey, cockloft, or partition wall contrary to the pro- visions of this Ordinance shall be liable on summary conviction before a Magistrate to a penalty not exceeding $25, and such Magistrate may order the removal of such
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illegal construction and inflict a penalty not exceeding $5 for each day such order is not complied with." There was no word in the Ordinance, as far as counsel had been able to ascertain, giving the Sanitary Board power to take the law into their own hands and to removes cocklofts. Then there were the by-laws, Hor did not know which section his friend relied upon
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His Lordship-9 or 10. I should think. Mr. Hastings said perhaps that was so, but he did not know. Section 10 said that the Secretary of the Board shall furnish the Board's inspectors with general authority in writing "to enter and inspect all buildings and curti- lages for the purpose of ascertaining the sanitary condition, cleanliness or good order thereof," &c. Possibly they entered under that power, but there was another power which was contained in section 22. That referred - to neighbourhoods affected by diseases, but in this case the Board had not pleaded that the neigh bourhood where these cocklofts were was in- fected with any infectious disease. He did not know whether the defendants were going to set that up. The section stated that “in any neighbourhood affected by such diseases the officers of the Board duly authorised in writing may make a house to house visitation for the purpose of inspecting the sanitary condition of any premises so visited and of all and every part thereof, and of as- certaining whether there are any persons in or upon the said premises attacked or affected by the said diseases or who have died thereof. If the premises so visited, or any part thereof, shall be found in a dirty or insanitary condition, in the opinion of the officer making such visitation, he may forthwith take steps to have the same thoroughly cleansed and disinfected" by the staff of the said Board or by contractors or others specially appointed for that purpose." So if that section applied the officers had power to cleanse and disinfect, but that was very different from pulling down portions of the premises themselves. The next section ran-"All articles of clothing or bedding and all other articles whatsoever, which have been in contact with any person or body in any way affected by such diseases, shall be removed from any premises on which they are, or shall be found, by the officers or contractors of the Sanitary Board, in covered vehicles and with such precautions and in such manner as the Board shall from time to time direct, and shall be thoroughly disinfected and then returned or owners thereof." If the to the owner defendants were going to set that up counsel would submit that the section did not refer He contended that to portions of houses. there was nothing in the by-laws or in the Ordinance which authorised the Board to pull down cocklofts, whether legal or illegal, and remove them. If the cocklofts were illegal the defendants should have applied to the Magistrate for an order to remove them. The defendants, by their answer, "had denied their liability, bút had paid into Court the sum of $60, and they asserted that that sum was suf- ficient to satisfy the claim of the plaintiff. unusual form of pleading That was in this colony, and counsel did not re
It was member anything like it before. material to consider the effect of such a pleading. The rules in England provide for the payment in with the defence denying all liability, but the Code in Hongkong did not seem to con- template such a payment. Sub-section 2 of section 35 of the Code says, "Payment into Court, whether made in satisfaction of the plaintiff's claim generally, or in satisfaction of some specific part thereof,operates as an admission of liability to the extent of the amount paid in and no more, and for no other purpose." Therefore counsel took it that this payment." was an admission of the plaintiff's claim to the amount of $60, and so, whatever the result of the action-whether plaintiff succeeded or not- he would be entitled to the $60. That view was borne out by the case Burdon v. Greenwood, 39 Law Times Reports, new series, page 223 “The plaintiff is entitled to the money paid in whether he succeeds in the action or not. this case the amount at stake was not very large, but it was in the nature of a test case certain other claims, whin because there are will be influenced by the result of this action,
Evidence was then called.
an
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