.440
unfortunately the progress of the reclama- tion work is so slow that it will probably be several years yet before a road available for a tramway will be available. The Eastern tramway should, however, he laid As soon as Queen's Road from the Cricket Ground to Arsenal Street has been widened, and the extension westward could be under- taken subsequently as soon as circumstances permit. A preliminary point that will have to be decided is whether the tramways should be constructed and worked by the Government or by concession to a Public Company. The Tramways Ordinance of 1883 authorised the construction of tram- ways by a Company, and the concessionaries claimed some time ago that their rights were still in existence although the work had not been commenced within the stipulated time. Whatever the legal decision on that point might be, Mr. PRICE, writing in 1887, contemplated that the line should be con- structed by the Government. "If well and 'substantially built and managed by com- petent hands," he wrote, "the tramway should not only pay for itself, but should yield a moderate profit to Government, "while to the working classes, provided the "fares are kept at the lowest standard, it "will prove an inestimable boon." It is certainly anomalous that in a place with a large and constant stream of traffic over a continuous length of eight miles we should be dependent on chairs and rickshas for our means of communication. The anomaly cannot continue after we are provided with roads suitable for tramways. Improved means of communication are required not only for the accommodation of the already large traffic, but also for the further indus- trial development of the colony.
"
"
SUPREME COURT.
1st December.
IN ORIGINAL JURISDICTION.
BEFORE SIR JOHN CARRINGTON (CHIEF JUSTICE).
THE EMPEROR OF CHINA V. BENNERTZ
AND ANOTHER.
In this suit the defendants moved for certain costs, plaintiff having withdrawn from the suit. Mr. J. J. Francis, Q.C. (instructed by Mr. H. L. Dennys, Crown Solicitor) appeared for the plaintiff and Mr. E. Robinson (instructed by Mr. H. W. Looker, of Messrs., Deacon and Hastings's office) for the defendants.
The motion came up for hearing on the 29th November, when Mr. Francis made a prelimin- ary objection to the form of the motion.
His Lordship now delivered the following considered judgment on the points raised :-
In this case the plaintiff's solicitor, on the 25th October, 1897, gave-notice in writing to the Registrar that he had received instructions on behalf of the plaintiff to withdraw the suit." The defendants, on the 23rd November, 1897, filed a notice of motion by which they ask that judgment be entered for them for their costs of suit, to be taxed, and also with regard to certain other matters, When the motion was called on for hearing Mr. Francis, on behalf of the plain. tiff, took the preliminary objection that the motion was not in accordance with the practice of the Court as established by the Common Law Procedure Acts and the Code of Civil Procedure. He urged that the defendants should either have moved to dismiss the petition for want of prose cution under section 49 of the Code or have set down the cause for hearing and applied for an order under section 61 of the Code. To this objection Mr. Robinson, on behalf of the defend ants, replied that neither of the sections referred to had any application, because the snit, haying been wholly withdrawn, was at an end and there- fore the petition could not be dismissed for want of prosecution nor could the cause be set down for hearing. Mr. Robinson made some references
THE HONGKONG WEEKLY PRESS AND
to the Judicature Acts, but those Acts are not in force in this colouy, and I think the question now raised must be determined in accordanco with the practice of the Court as regulated by the common law, by the Common Law Pro- cedure Acts, by c-rtain Rules made under those Acts and adopted in this colony, and by the Code.
The decision of the question must turn upon the meaning and effect to be given to the words "withdraw from the suit" used in section 66 of the Code. Before the coming into force of this enactment a plaintiff might either discontinue his action, on a rale obtained for that purpose, or he might, if the record was made up for trial and he was not prepared to go to trial, with- draw the record. In the case of discontinuance the terms imposed by the Court were in its dis- cretion. but generally included the payment of costs by the plaintiff the action was de- ermined; and the plaintiff was at liberty to commence a new action for the same causo, In
necessary
a
[December 8, 1897. exercised against a plaintiff who has withdrawn from his suit. ¦ I come, therefore, to the conclusion that, so far as the form of proceeding is concerned, it is competent for the defendants to move the Court with respect to the matters mentioned in their notice of motion.
The case was then proceeded with..
Mr. Francis said it would save the time of the Court if he mentioned that the plaintiff admitted liability to costs and had always been prepared to pay taxed costs of suit."
His Lordship-That is what I expected. Mr. Robinson said he would apply himself to the other parts of the motion. The application, judg- after the application for costs, was for " ment that the wages of the crew retained on board the s.s. Ningchow by the defendants in pursuance of the order of the Honourable Court, dated 9th December, 1896, and the expenses of the said ship to the date of judg- ment be paid by the plaintiff to the defendants when ascertained, and that the matter be re-
the case of withdrawal of the record the action was still subsisting, and the plaintiff was enti-ferred to the Registrar of the Court to tled to re-enter the record for trial at ascertain the amount of the said wages and another sitting or assize. It is not now expenses, and for judgment that the plaintiff
whether to decide
plaintiff pay the defendants the sum of $1,030 for com can still adopt either of these modes of pensation for the expense and injury occasioned by the issue of the warrant of arrest in this suit." procedure. But section 66 of the Cole seems
With regard to the first point relating to the to have introduced a new terminology, and to some extent, a new course of practice, as com wages of the crew retained on board counsel referred to an order made on the 9th December, pared with the former procedure. By the ear-
1896. lier part of the section it is provided that "if the
Upon the application of the plaintiff and plaintiff, at any time before final judgment, sat- upon hearing the solicitors for the plaintiffs isfy the Court that there are sufficient grounds and defendants and certain affidavits it was for permitting him to withdraw from the suit ordered that the then master and crew of the Ningehow be discharged and their wages with liberty to bring a fresh snit for the same matter, it shall be competent for the Court to paid by the plaintiff without prejudice to the grant such permissiom on such terms as to costs question as to who was to be ultimately liable or otherwise as it may deem proper." The word- for such costs, and that-the ship remain in the ing of this enactment clearly implies that, so custody of a European second officer, a European a Euro- far us the prosecution of his suit by the with-
third officer, three Chinese sailors, drawing plaintiff is concerned, the suit is at an pean engineer, and two Chinese firemen to he end he is no longer before the Court for that appointed and paid by Messrs. Bennertz and But it seems equally clear that Co. pending the hearing of the suit or until the suit is subsisting for some other further orders, and it was also ordered that the purposes. e.g., for the purpose of any applica-payment by Messrs. Bennertz and Co. of the tion by the defendant to compel the plaintiff wages of such crew be without prejudice to the to comply with any terms imposed on him question as to who would ultimately have to by the Court when it permitted him pay the wages. As the action had now been withdraw. The section concludes with the fol- withdrawn defendants were now claiming judg- lowing words:-" If the plaintiff withdraw from ment for those expenses thrown away. The the suit without sneh permission. he shall be crew were put on board and the expenses wasted precluded from bringing a fresh suit for the entirely owing to the action of the plaintiff in Counsel then quoted cases same matter." These words would seem to give bringing the snit. by implication power to a plaintiff who does not desire to bring a fresh suit to withdraw at his own discretion. But so far as the further con- dnet of the suit by him is concerned, the posi- tion of a plaintiff who has withdrawn without the permission of the Court is, I think, the same as the position of a plaintiff who has withdrawn with such permission.
purpose.
to
Can it then be said that the procedure in- dicated in section 49 or section 61 of the Code is applicable to that position? In my opinion, it is not so applicable. Both those sections have reference to the case of a plaintiff still sing. although in default-still before the Conyt for the purposes of the litigation. But, as has been already indicated, the plaintiff in this case is no longer a party to the suit for the purpose of its being heard and determined, and therefore he
cannot obtain an order to set the cause down
in support of his case and said that his friend would doubtless contend that a foreign prince could not be sued, but it had been laid down that if a foreign prince invokes the jurisdiction of the Court as a plaiutiff the Court can make all proper orders against him. That was the princi- ple on which counsel gelied and which covered the present ense. The Court had never hesi- tate:Î to exercise its powers in giving judgment against a foreign prince, but, as one authority observed, "it is another question of what may be the result of execution against the plaintiff should judgment go against him." In the present case. the plaintiff had put himself in the wrong by detaining the ship and now that he had with drawn the suit it was only proper that the defend- auts should be given relief. The plaintiff's right was doubted; the defendants' wrong was be- yond doubt. The plaintiff's object was to de-
them of their business. The obvious and perni- cious reason for seizing the ship and bringing the action was to drive Bennertz and Co. into. the Bankruptcy Court.
for hearing, and the defendants cannot availiberately ruin Bennertz and Co. by depriving themselves of the remedy given against à sub- sisting plaintiff who is in default in respect of down, namely, apply by setting the cause motion under section 49 to dismiss the petition for want of prosecution. And if section 49 does not apply, it is still more clear that section 61 does not apply.
I may add that sub-section 1 of section 66 relating to the withdrawal of suits is a traus- seript of section 97 of the indian Code of Civil Procedure. On reference to Brough'ou's edition of that Code. I find that there have been con- ficting decisions of the Indian Courts on the question whether the Court has power to award costs against a plaintiff withdrawing from the suit without the brave of the Court.
But it is
to be observed that the powers if the Indian Courts in dealing with questions of costs are apparently not so large and general as the pows conferred in that respect upon this Court by section 94 of the Code, and I am of opinion that these powers can, if the case requires it, be
|
His Lordship-We need not go into that. Mr. Robinson said he had not intended to do so, but there could be little doubt that the plain- if had seized the ship with the object of de- priving Bennertz and Co. of the opportunity of making money wherewith to pay the crew,
Mr. Francis contended that the Court had no power to entertain the application for dam-
nges.
Messrs. Bennertz & Co. were, by the charter party, the persons primarily liable to pay the expenses of the crew of the Ningchow.
the Court were to award Bennertz & Co. those expenses, then the Court would be awarding damages for the detention of their. vessel, and it was beyond the power of the Court The Court could award $1,000 if sat- to do so. isfied that the warrant for the arrest of the Ningchow was issued on insufficient grounds.