September 29, 1897.]
CHINA OVERLAND TRADE ŘEPORT.
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853
hearing of the action. that the signature of the first defendant The defence W88
on the notes was a forgery. That the signature olear, and therefore fraud had been committed was not that ordinarily used was perfectly by one of the three or two of the three parties concerned in the case. The fraud was.com. mitted either by the plaintiff or by both the de fendants, or one of them. Counsel suggested that the fraud was committed by the two de- fendants together.
either the plaintiff has committed forgery and The Chief Justice.-It appears to me that followed it up by committing perjury, or defen. dants have committed perjury and possibly have been guilty of conspiracy too.
MESSRS. BUTTERFIELD and
SWIRE'S NEW PREMISES, The Taikoo Hong on Monday, 27th Septem- ber, moved into its new offices at the corner of Murray and Connaught Roads with frontage on the New Prays. The chitectural features of Hongkong and being building is a notable addition to the ar-
departure. The business and personal friends fire and typhoon proof represents a new of the hong and of its members were in- vited to make
a call in the afternoon and
quarries was, I think, sufficient to enable under-lease which had been assigned to him. him to maintain a suit for trespass against It was not shown that G. E. Hinde, the father, the officery of the Government or any other per- had any estate, legal or equitable, in the house, son for an interference with that right of pos.
but there was evidence to show that he session. The agreement then, in my opinion, was in substance managing the business operated as a lease by the Government to carried on there in which G. W. Hinde, the the respondent of the areas specified in son, took part. It was held by the Court of the agreement for the term and the pur- Appeal that the evidence showed G. E. Hinde, poses and
on the terms and conditions the father, to be in joint or sole occupation of also mentioned therein. But besides this the the house and to be managing the business in respondent had other rights under the agree- it with notice of the covenants, and that, ment Let us consider the effect of the "term even if he was nothing more than the mere and condition" embodied in the words "the sole occupier, he was liable to an injunction to privilege of farming" occurring in the opening restrain him from using the house in a way words of the agreement, and more expressly in forbidden by the restrictive covenants. At clauses 9 and 11 set ont above. By these stipu- p. 558 of the report there are the following lations the Government engaged that no granite observations by Bowen, L. J.: "If a man, by should be taken from the quarries at Kowloon, the leave of a person who is bound by a restric-dealt with the judgment and referred to the Mr. Slade said that was his point. He then whether such quarries were existing at the time tive covenant as to the use of land, enters into new evidence which he was able to call. of the making of the agreement or should after possession of the land with notice of the coven- wards be opened, for use in private works durant, he will be restrained from violating that the ground that fresh evidence was forth- Their Lordships granted leave to appeal on ing the subsistence of the agreement. It is covenant. Why should not a person who enters coming. clear that this undertaking was an import into possession of land for his own convenience, ant consideration, from the respondent's and by the permission of a person bound by a point of view, in taking the lease of the restrictive covenant, be as much bound as a quarries, since it gave him the sole right of tenant from year to year P" But, in the absence selling to private customers granite taken from of express authority, I think the case can be the Government quarries at Kowloon. It is decided on principle, and that it falls within equally clear that any granite taken from those the operation of the rules laid down for the quarries and used, without the respondent's application of the maxim, Ubi jus ibi remedium. consent, for private purposes, would be so taken and used in direct infringement of that affect illustrated by Lord Holt, C.J., in the This maxim was first fully explained and its right.
At p. 252 Lord Holt says: Every injury case of Ashby v. White et al., 1 Sm. L. C., 231. imports a damage though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage when a man is thereby hindered of his rights.” In Comyns' Digest, Action upon the Case (A), it is said :-"In all cases where a man has a temporal loss or damage by the wrong of an- other, he may have an action upon the case, to has been done and some one person is primarily be repaired by damages." Where an injury liable for it, it may be that a third person, who has taken part in bringing it about, may also be liable, as, for instance, stranger may be liable in tort for procur- ing the breach of a contract. Thus, in the case of Lumley v. Gye, 2 E. and B., 216, the majority of the Queen's Bench held that an action lies for maliciously causing and procuring one of two contracting parties not to perform the contract, whereby loss accrues to the other. This decision was affirmed by the Court of Ap- peal in Bowen v. Hall, 6 Q.B.D., 333. In that case Brett, L.J., says, at p.p. 337-8, that the following proposition may be deduced from Ashby v. White :-" Wherever a man does an not which in law and in fact is a wrongful act and such an act as may, as a natural and pro- bable consequence of it, produce injury to an other, and which in the particular case does produce such an injury, an action on the case will lie." I conceive that the act of the ap- pellant was wrongful; that, as a natural conse- quence, it produced injury to the respondent; and that the present case comes within the scope of the above-stated proposition of law. I am, therefore, of opinion that the present suit has been well brought, and that the judgment of the learned Judge in the Court below should be affirmed, and this appeal be dismissed, with costs.
In this state of circumstances the appellant, by a man named Tsang Un Kwai, in or about the month of July last, entered upon a granite quarry belonging to the Government at Kow loon, but not comprised in the area leased to the respondent, and, having cut and removed granite therefrom, used it in building operations at the Cosmopolitan Dock, that is, in private work. This he did without the sanotion, and, indeed, apparently without the knowledge, of
the Government or of the respondent. I am satisfied that when he did it, he was aware of the respondent's exclusive right and that be was invading that right. For this act the res- pondent brought a suit against him, claiming damages for an infringement of his right as already mentioned.
It is not disputed on behalf of the appellant that the respondent may have suffered a pecuniary loss by this act of the appellant, but it is contended that, if this is so, it is damnum sine injuria for which the respondent has no right of action, and it is suggested that for any such loss the Government, and the Govern ment only, is liable in damages to the respond ent. It is further said that, in the event of such liability being established, the Government would probably have a remedy over against the appellant.
With regard to these contentions, it is, of course, clear that the appellant is liable to the Government for his trespass on its quarries. But, on the facts, as I understand them, it is not at all olear that the Government is liable in damages to the respondent. It is not pretended by the appellant that the Government sanc- tioned or connived at his taking of the granite; on the contrary, it appears that it was taken without the knowledge and against the will of the Government. Under these circumstances, and in the absence of proof of negligence on the part of the Government directly conduoing to the sat of the appellant, I confess it seems to me difficult to hold that the Government is liable for the consequence of that not. If this view be correct, the result is that the respondent has suffered a loss for which he has no remedy, unless it be against the appellant who has caused that loss. I do not see any reason why he should not be held entitled to that remedy. No direct authority bearing on the case was cited on either side in the argument, nor have I been able to discover any such authority. If the agreement had been under seal, the doctrines as to the effect of convenants restrictive of the right of enjoyment of land would apply. Even as it is, the case of Mander v. Falcke (1891), 2 Ch. 554. is instructive. There the owners of the free hold reversion in a honse sued G. E. Hinde and his son, G. W. Hinde, to restrain them from using the house in such a way as to break a restrictive convenant contained in a lease of it granted by the plaintiff's predecessor in title. The house was vested in G. W. Hinde, the son, for term under an'
The Puisne Judge--I concur.
CHEUNG IU ting, apPILLANT & CHUN YAM AND MA PAK TO.
a
The appellant, the plaintiff in the court below, applied for leave to appeal from the judgment of the Puisne Judge delivered on the 20th September. The application was heard ex parte.
Mr. M. W. Slade (instructed by Mr. Reece) appeared for the appellant.
The appellant is the proprietor of a sugar shop and he brought three actions against Chun Yam, compradore to Messrs. Gilman and Co., and Ma Pak To, broker, to recover sums due on three promissory notes for $600, $800, and $900 respectively, and judgment was given against the plaintiff.
Mr. Slade said the application was made on the grounds that the judgment was not in ac- cordance with the evidence and that new evidence was forthcoming which could not have been obtained on the day of the
between four and five o'clock the building was thronged with visitors, who were afforded an opportunity of viewing its novel features and were hospitably entertained by Mr. Herbert Smith and Mr. Walter Poate, the resident partners, and the members of the staff. Mr.
tunity to propose success to the firm, which Fullarton Henderson, one of the old hands of the colony, seized a favourable oppor he did in a short and characteristically happy speech. Having indulged in some reminiscences of the time when the blue funnel steamers arrived at long intervals and compared that time with the present, when the signalman at the Peak had hardly flags enough to signal Taikoo Hong, Mr. Henderson went on to the approach of the vessels consigned to the
say that newspaper people, who were given to writing on subjects they knew nothing about merchant, but he pointed to the splendid build- were now talking of the decadence of the British ing in which they were assembled as a refuta- tion of all that was said on that topic, (Ap. plause) In conclusion he proposed the toast afterthought. remarked that had he known of "Success to the Taikoo Hong." and, as all
adorned himself with a bouquet of the flowers of there were to be ladies present he would have
three cheers and a tiger, Mr. Herbert Smith rhetoric. The toast having been honoured with
their good wishes. briefly responded, thanking those present for
The building has three frontages on public roads, namely, on the New Prays, Murray Road, and Connaught Road (the old Praya), while on the west it is separated by a nar- row lane from a pile of offices now being erected by the Land Investment Company. On the Praya side it consists (including the ground floor) of three storeys and on the Con- naught Road side of two storeys. The design is in a modified rennaissance style, all the architectural features being in cement plaster. This is coloured a soft grey tint, and the exterior walling being of Amoy red brick, the combina tion of these differently coloured materials enhances the effect considerably and gives the building at once a striking and distinctive character. The elevations to the three fine frontages the site commands have been variously treated, which gives the build- ing a picturesque appearance and presents a pleasing variety of design viewed from different aspects. The chief elevation facen the New Trays, and, like the other frontages, it rests ou substantial granite base. The entrances on either side and large bay window in the centre are the most distinctive features. A particularly rich and excellently modelled scroll freise runs round the whole building at the first floor level at a position where it is most
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