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THE HONGKONG WEEKLY PRESS AND
of the cause; (3) That the plaintiff is entitled to the costs of the particular issue, namely, that of the trespass, which I find in his favour.
Mr. Hastings With regard to the question of costs, my Lord, your Lordship has found the defendants entitled to general costs of the cause. I submit they will only be entitled to any costs from the date of the payment into Court.. I think that is a matter that scarcely requires argument.
Mr. Johnson I think, my Lord, that the case you quoted, Burdon v. Greenwood, shows that if the plaintiffs succeed in the main issue they are entitled to costs on the main issue, and nothing more.
His Lordship-I have a note here of the words in the judgment. "General judgment will be for the defendants with general costs of the case, and the plaintiffs are entitled to costs on the particular issue."
His Lordship-Yon will be entitled to any loosts of evidence Mr. Danby has given, or costs of reports he has made, but not on the question of damages.
His Lordship-Yes, I take it to be that the Mr. Hastings-Surely that would argue an defendants shall be entitled to the costs of the injustice. It comes to this, that we would have suit after the payment of the money into Court. to pay them the costs of the action before they Mr. Hastings-Your Lordship has not re-paid the money into Court. Surely we are en- férred I dare say you have taken it into con- titled to our costs. sideration to the case of Burdon v. Greenwood. That was an action brought principally to sustain a right, or to enforce a right, and your Lordship has found that right in our favour; therefore we are entitled to the general costs of the action. In the words of. Lord 'Justice Cotton, in Burdon v. Greenwood, where a judge is satisfied that an action is brought for the purpose of testing a right he has power to give the general costs of the action to the plaintiffs, although they do not succeed in proving the damage iu Court.
"
His Lordship-What do you understand by 's right "?
A Mr. Hastings-The question of trespass or no trespass-whether the Sanitary Board were justified in doing what they did. Your Lord ship has found. they were not justified, and that they were trespassers ab initio. That was the primary object of bringing the action.
His Lordship-You are trying the right of the Sanitary Board and not your own right.
Mr. Hastings-The right of my clients not to have their property interfered with by the Sanitary Board.
His Lordship-The real question tried was, were the Sanitary Board right in doing what they did?
:
Mr. Hastings-Quite so; on that we have. succeeded and I submit that Lord Justice Cotton's words apply to this case and that we should have the general costs of the action. I ask your Lordship to reconsider that point. and to give us the general costs of the action.
His Lordship-Do you notice that in the judgment delivered by the Lord Justice it dis- tinctly refers to right of property which is in, dispute?
Mr. Hastings-This is a right of property. Mr. Johnson-A right of properly means a title to property.
His Lordship That is how I looked upon it. Lord Justice Cotton merely used the word right," but at the very beginning of the judg- ment the words “right to property" mean title to property. That is how I looked upon it, and I very carefully considered the point.
Mr. Hastings-Of course if your Lordship has carefully considered the point I thought it was not confined to the question of title to property.
His Lordship-It was the strong impression on my mind that it was.
Mr. Hastings-Your Lordship gives them the general costs of the action from the time of the payment into Court, and you give the plaintiff costs, if any, of the issue on which he has succeeded ?
His Lordship—Yes.
D
Mr. Hastings-There is the point as to whether we were justified up to the time of pay- ment into Court. There is no doubt our action was perfectly justified and in order, and there- fore I submit we should have the general costs of the action up to the date of the payment into Court.
His Lordship-Have you any anthority on that point?
Mr. Hastings-It appears to rest upon the basis of common sense. Our action was justified and properly brought; therefore naturally we ought to have the costs of it. Your Lordship sees there was no tender before the action:
His Lordship-No.
Mr. Hastings-If there had been our action would have been wrong at the beginning. Our action was clearly in order until the payment into Court was made by the defendants. There fore I submit we are clearly entitled to the Costs
sup to that date.
* His Lordship-Have you anything to say on the point, Mr. Johnson P
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Mr. Hastings-Quite so.
His Lordship-If I were to give you general costs up to that time, you would be able to include costs of any survey made by Mr. Danby.
Mr. Hastings-Including the survey made by Mr. Danby as to what had been done by the Sanitary Board and on the question of damages. Clearly that evidence was necessary in order to prove the issue on which we succeeded. That is a matter for the Taxing Master.
[July 221896
or at
defendant, in consideration 401 $20,000, covenanted with the plain them that sum on the 12th July 1891 any time thereafter, upon one calen previous notice to repay t meantime to pay to the plain sum at the rate of seven per equal monthly instalments on the month. Defendant further assi plaintiffs certain properties, with the plaintiffs, in default of payment into and hold and enjoy the premises the rents and profits thereon. The had not repaid the money or any part ther and no interest had been paid since April, 18 Since November, 1895, the plaintiff Compan had been in possession of the properties had received the rents thereon. On the 29th November, 1889, defendant, in consideration of the sum of $8,000 lent to him by the plaintiffs convenanted with the plaintiffs to pay them that sum on the 29th November, 1890, the meantime to pay plaintiffs interest at rate of 8 per cent. per annum in monthly in- staliments: No interest had been paid since September, 1893, and plaintiffs had been in possession of property assigned to them by defendant since December, 1895. The plaintin now prayed. that an account be taken of what was due by the defendant, that the defendant be ordered to pay the amount found due with costs, or, on his failure to do so, for an order foreclosure.
His Lordship-Could not Mr. Danby have simply gone down there and said "I saw that joists had been removed and so many planks taken away"? He could simply have said Mr. Thomas Arnold, the £ecretary of the plain. that they were not there. Was a plantiff Company, gave evidence of the transactions. necessary for that?
His Lordship granted the order applied for 2.
18th July.
Mr. Hastings--I think so, to show what had been taken away. I submit we are entitled to the general costs up to the time of payment into Court. I have no authority, but I ask your Lordship to reserve your decision on the point until I can look up the authoritis. It is plain and so clear.
you
His Lordship-It is plain up to a certain point-as I am advised at present-that would not be entitled to costs of survey made by Mr. Danby for damages.
Mr. Hastings-Take the cost of the issue of the summons. Surely we are entitled to that.
His Lordship-After all, is it not a question for the Registrar?
Mr. Hastings-I do not think so.
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CRIMINAL SESSIONS.
BEFORE HIS HONOUR DR. CARRINGTON (CHIEF JUSTICE).
DISCHARGED.
The Acting Attorney-General (Hon. H. E. Pollock)-Before the jury are called, there are two cases, my Lord, in which, after considering conclusion it would not be proper” to file, any the depositions carefully, I have arrived at the
information. I consider that there is no pos81- tl.bility of obtaining a conviction in these two
His Lordship-If you like to rese: ve point and argue it on another day I should be perfectly willing to hear the argument.
Mr. Johnson-If your Lordship gives plain- tiff's counsel leave to re-argue the question I will argue it at the same time if he can find any case.
His Lord-Simply on the point as to what is the meaning of the costs on your successful issue. I will reserve that point for argument.
Mr. Hastings-As to whether it shall include the whole of the costs up to the time of the payment into Court P
His Lordship-Yes,
Mr. Hastings I say we are entitled to costs up to the time of payment into Court.
His Lordship said he would hear the argu- ments in Chambers on Friday afternoon.
17th July.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR DR. CARRINGTON (CHIEF JUSTICE).
THE HONGKOng, canton, and macao STEAMBOAT COMPANY, LIMITED, v. PESTONJEE FRAMJÉE DAVER.
The plaintiff Company applied for a fore closure order.
Mr. J. J. Francis, Q.C. (instructed by Mr. J. Hastings, of Mr. V. H. Deacon's office), appeared for the plaintiffs.
Mr. Francis said the proceedings were taken éz parte ander leave granted by the Court under section 12 of the Code, and the action was for a foreclosure order. The plaintiffs' petition set forth that the Company was incorporated under the Companies Ordinances 1865 and 1890, and the defendant was a merchant formerly residing and carrying on business in Hongkong, but at present residing in Bombay. By an indenture of mortgage, dated 12th July, 1889, and made between the defendant and the plaintiffs, the
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CACUS. One is a case against Wong Kai, charged under Oidance 11 of 1890 (Women and Girls'
Protection Ordinance) and there is another case, my Lord, also under the same Ordinance, against three people. Tong Mun, Tsang Ut Fan and Chau or Chan Lok. I would ask your Lordship to order these people to be brought up so that they can be discharged by proclams. tion in the usual way.
A nolle prosequi was therefore entered in each of the cases and the accused were dis- charged by proclamation.
THE “ MARTHA SHOOTING CABE. ship to fix a day for the hearing of the charge The Acting Attorney-General asked his Lord.
Gruenwald, second engineer of the Martha. of shooting two coolies brought against Peter
was a special jury case, and Mr. Francis ap- peared for the defence."
In reply to his Lordship the Acting Attorney General said the case would last two days.
His Lordship fixed Thursday next for the hearing..
A SPECIAL JUROR EXCUSED. The Acting Attorney-General said”. soon; a special juror, had engaged his to go to Japan. He understood Mr had engaged his passage before he was moned. Two of the special jurors ha excused under medical certificate, and Mr Bas- soon would be the third,
Kum
The Chief Justice excused Mr. Sassoon from attendance.
ROBBERY BY A SERVANT Wong Yan, a boy who was employed by M David Kennedy, Causeway Bay was with stealing two gold watches, three gol pins, three gold scarf rings two gold one Chinese gold coin, one gold i medal; and $30 in money, the pro Kennedy,
The Acting Attorney Genera The jurors were Messrs. D do Rozario, F. W. Rapp. Tyndale Lea, Abdool Gazee,