June 2, 1900.]
Appellants to appeal to Her Majesty in Council from the decision of the Court delivered on the 14th March, 1900, in favour of the Respondent. | The grounds on which the motion is moved 'are, 1st, that the decision was neither a final judg- ment, decree or sentence nor a rule or order having the effect of a final or definitive sentence, and, 2nd, that there was no satisfactory evidence before the Court that the decision was given or pronounced for or in respect of a sum or matter at issue above the amount or value of five hun- dred pounds sterling, or that the decision in- volves, directly or indirectly, the title to pro- perty or to some civil right exceeding the value of five hundred pounds sterling.
The facts relating to the proceedings out of which the motion has grown may be shortly stated.
The Respondent (the Plaintiff in the Court below) as administrator of the estate of Ho I Shok, deceased, claimed to have an account taken of the partnership dealings between the deceased and the appellants (the Defendants in the Court below) in the Yan Wo and Yi Li opium shops, in which the deceased was a part-
ner.
To this claim the appellants by their answer set up two defences, namely, 1st. that they were not partners in the Yi Li firm and that the deceased was not a partner and had no Share in the Yan Wo firm, and 2nd that the claim, if there ever had been any sufficient gounds for it. was barred by the Statute of ⚫ Limitations.
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After the pleadings had been closed the ap. pellants took out a summons asking that the Court should proceed to ascertain und det ruine what were the material questions in controversy between the parties and settle such questions iù the form of issues. To this suminous was au- nexed a copy of draft issues of fact and of law. Before this summons was heard the parties came to an agreement that an issue of law, in the nature of a demurrer on the point of the Statute of Limitations, should he tried before any other issues in the suit, and an order was accordingly made to that effect. The issue was in these terms:-**
"Assuming that all the facts stated in the petition are true, is or is not the Plaintiff's claim herein barred by the Statute of Limitations?"
This issue was accordingly tried before Acting Chief Justice Goodman, and on the 21t De cember, 1899, he decided it in favour of the Respondent. The appellants appealed from this decision to the full Court. but the decision was affirmed on the 14th March, 1900, by this Court. consisting of Mr. Justice Wise and myself. The appellants then presented to the full Court a petition praying for leave to appeal from the decision to Her Majesty in Council, and on notion made ex parte this Court consis- ting of the same Judges made an order gran- ting such leave. By the present motion the Respondent seeks to have this order set aside.
The determination of the first ground stated in the motion turns upon the construction to be placed upon the first paragraph of the addi- tional Royal Instructions of the 21st January, 1846, which make provision for permitting and regulating appeals to Her Majesty in Council from the Supreme Court of Hongkong in Civil suits or actions.. Such an appeal is to be against any final judgement. decree, or sent-
ence
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or against any rule or order made in any such civil suit or action and having the effect of a final or definitive sentence." It is alleged on behalf of the Respondent that the decision from which leave to appeal was granted was a decision upon a preliminary issue only and was not a final judgement or order within the meaning of the paragraph. In support of this contention it is urged that the decision does not dispose of the controversy between the parties, but only clears away the contention raised with respect to the applicability of the Statue of Limitations. leaving the parties to litigate the matter to a final determination on the facts. On the other hand it is said on behalf of the appellants that the decision is final in its effect as regards them at any rate, since it disposes of a ground of defence to the suit which they believe to be good and valid and which, if allowed, as it ought to be, would put an end to the suit.
CHINA OVERLAND TRADE REPORT.
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It is curious what a small amount of judicial interpretation seems to have been placed upon the words above quoted and upon similar words having operation in other colonies with respect
In In re Nalion et al., 2 Knapp 66, it was held. on appeal from the Supreme Court of Gibraltar, that an order of that Court directing the appellants, who has been apprehended under a writ of ne exeat regno, to appear to the cause, was not a final judgment or order from which an appeal would lie.
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to the right of appeal. I will refer to a few | the hearing of the suit is concluded they must cases of such interpretation decided by the either appeal against the judgment on the Judicial Committee.
whole case, that is, a judgment involving separate issues of law and of fact, when they do not desire to challenge the judgment on the issues of fact, or they must appeal against the judgment only in so far as it decides the point of law, in which case the hearing of the issues of fact will have involved a mere waste of time and money, If the issues of fact have been tried by a jury their plight will be even worse, for, if his contention is sound, they may be told that, in order to obtain their appeal, they must challenge the adverse verdict by a motion for a new trial--a thing that they may have no hope of doing with success. On the whole I think the balance of convenience is in favour of allow- ing the appellants to put forward at once by way of appeal their contention that the decision of this Court on their defence of the Statute of Limitations is wrong, and that a right decision on that defence will dispose once for all of the Respondent's claim. For these reasons I think that the motion fails in respect of the first of the two grounds on which it is founded.
In Macfarlane et al. v. Leclaire et cet, 15 Moore PC.C. 181, the appeal was against a judgment or a writ of saisie arrêt, or attach- ment before judgment of goods of the defendant in the action in the hands of the appellants, the said judgment having declared that those goods were liable to the respondent's claim. It was contended on behalf of the respondents that the judgment was interlocutory inerely, and, therefore, that an appeal against it was prema- ture. "But," said Lord Chelmsford, although the judgment is interlocutory in form. it is final in its effect upon the rights of the appel- lants. The goods which they claim as their own are finally and conclusively fixed by the judgment to be the property of the original debtor, and must be applied in satisfaction of his debts, and there is no mode by which the appellants can he relieved from it except by an appeal."
In Esnon v. The Attorney-General for Jer- -ey, 8 A Cas. 304, it was held that an order of Court Grecting a defendant to plead to an information (or other analogous proceeding) for libel, an directing that, having pleaded, he should he tried without a jury, was not a defini- tive sent ...
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In Raimbhog Hubbibhøy v. Turner, cited in Wheeler's Privy Council-Law p. 776. there was a petition for special leave to appeal, leave hav- ing been refused in the Court below on the ground that the decree was not a final one. The decree directed that accounts should be taken which the appellant contended should not be taken at all, and it was held by the Judicial Commit ee that the real question in issue in the suit was the liability of the appellant to pay something on each of the claims against him, if only the arithmetic result of account should be worked out agains him, and that question had been determined a reinst him in such a way that in that suit it was final. Accordingly, leave to appeal was granted.
It was pointed out by Mr. Francis that an appeal is admitted to Her Majesty in Council frora an order refusing a motion for a new trial or from an order discharging or making absolute a rule isi for a new trial. On this point see amongst other cases Trouson e. Dant. 8 Moore P.C.C. 419, on appeal from this Court. Yet it may be said that such an order is not "au order having the effect of a final or defnitive sentence in any event. since. if the order is for a new trial, the cause is re-opened between the parties and its final determination abides by the result of the new trial. And the fact of appeals from such orders being competent would seem to show that the rule laid down by the Court of Appeal in Salamuan Warner, [1891] 19 B 734, with regard to what are final judgments and orders under Order 58 Rule 3 of the English Rules of Court, can- not be regarded as an authority ou the construc- tion of the words in the Royal Instructions which are now under consideration. In con- firmation of this view it may be ob-erved that the Court of Appeal has expressly decided that an order discharging a rule for a new trial is an interlocutory, and not a final, order within the rule just mentioned: Wilks v. Judge, W. N. [1880.] It must be borne in mind that under the English Practice the right of appeal exists with respect to both interlocutory and final judg- ments and orders, and that the decisions as to the one of these two classes within which the cases severally fall turn upon the questions of the length of notice required for the appeals.
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Then it was said by Mr. Pollock for the Respondent that this appeal is premature and that the appellants should have deferred the making of it until the case had been determined on the merits. But let us consider what prac- tical consequences would, or at any rate might, follow if this argument were to prevail. Sup- pose that the appellants' real defence to the suit is the Statute of Limitations, and that they feel that they have no chance of making out a defence on the facts. Yet, ex hypothesi, when
With regard to the second of these two grounds not very much need be said. It is alleged that there is no satisfactory evidence before the Court that the subject matter of the suit is of an appealable value. This evidence consists of an affidavit by Mr. C. Ewens, the solicitor for the appellants, to the effect that the value of the shares in the two firms of Yan Wo and Yi Li claimed by the Respondent und of the matter at issue in the suit or of the property the title to which is involved by the order appealed against in the suit, is above the value of £500 sterling." Mr. Pollock said that the affidavit as to the value should have been made not by the solicitor but by the appellants or by the managers of the firms in question. But I do not see why the solicitor should not satisfy himself, by examination of the books of the firms or otherwise, as to the value of the shares and depose to such value accordingly. At any rate lie makes the statement positively and there is no counter affidavit and no suggestion that he is mistaken in fixing the value. I think, therefore, that his statement may be accepted as sufficiently satisfactory evidence on the question of value.
The result on the whole matter is that, in my opinion, the motion should be refused, but as the main point raised by it is one of consideable difficulty and very well deserves to be argued, and as the Court is divided in opinion, I think there should be no order as to costs.
The Puisne Judge said:In suit No. 8 of 1899, in which the plaintiff as administrator of the estate and effects of one Ho I-shek, deceased, claims to have an account taken of the partner- ship dealings between the said deceased and the defendants, an order was, on the 1st December, 1899, made by the Court that an issue in the nature of a demurrer on the point of the Statute of Limitations should be tried before any other issues in the suit.
On 21st December. 1899, Goodman, Acting Chief Justice, decided that the plaintiff's claim was not barred by the Statute of Limitations, and on 14th March, 1900, his decision was upheld on appeal.
On the 26th March, 1900, an order was made ex parte by the Full Court granting leave to the defendants to appeal to Her Majesty in Council from the decision of the 14th March.
On the 8th May, 1900, plaintiff by his council moved to have the order of the 26th March set. aside on the two grounds—
(1) That the decision of the 14th March ap- pealed from was neither a final judgment, decree, or sentence nor a rule or order having the effect of a final or definitive sentence;
(2) That there was no satisfactory evidence before the Court that such decision was given or pronounced for or in respect of a sum or matter at issue above the amount or value of five hundred pounds sterling, or that such decision involved directly or indirectly the Title to Property or to some Civil Right exceeding the value of five hundred pounds sterling.
Accordingly, the first question before the Court is whether the judgment of the 14th March was a final judgment or not.
No case was cited which showed the meaning which had been attached to the term final judg- ment so as to constitute it a judgment from which an appeal, subject to certain condition of
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