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THE HONGKONG WEEKLY PRESS AND
being a thing calculated to incommode or annoy | threats whatever of legal proceedings unless ↑ as passed by the Legisla passengers thereon was an obstruction within speedily followed up by an action. Further, Act.
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the meaning of the Ordinance. The Magistrate the general scope and object of section : 3, however was of opinion that the general word the intention of which was to prevent nui- thing" following the specific words "barrel, sances of various kinds in public places, cask, or butt," took its meaning from them and required that the words "or other thing" must be presumed to be restricted to articles should not be restricted in meaning by the of the same genus. He held therefore that the words preceding. The words should be given evidence given before him did not bring the the fullest and most extended meaning. A case case within the operation of section 2, strongly in point was R. v. Edmundson, where sub-section 11, of the Ordinance, and he Statute 17 of George III, cap. 58, which gave his decision accordingly. The question authorised justices to issue search warrants of law arising in the above statement for the for stolen goods suspected to be concealed "in opinion of the Appeal Court was whether the any dwelling-house, outhouse, yard, garden or term “ other thing as used in this sub-section other place," was held to include under the last of the Ordinance could be so construed as to words "other place" a warehouse which was a include the bamboo pole carried by the respon-mile and a half from the dwelling-house. Or- dent.
dinarily a warehouse would not be considered Proceeding to his argument the Attorney ejusden generis with a dwelling-house, but in General said it was in the first place to be this case it was held to be reasonable, having observed that the general words of sub-section regard to the preamble to the general object 11 of section of Ordinance 1 of 1845 of the statute, to think that the warehouse were not limited to the words
or other
was within the contemplation of the Legis. thing" as the learned Magistrate appeared | lature as a likely place for concealment. to think. The general words were 44 or So now it Was submitted that a long other thing calculated to annoy or incommode" bamboo pole carried over the shoulder which the passengers upon a public footway. The the Magistrate found as a fact was carried by class of objects, or the genus, against which the respondent in such a way as to obstruct the the sub-section was directed included everything, footpath and to be calculated to annoy and whatever it might be, which was calculated to incommode the passengers must, having regard annoy or incommode passengers using a foot- to the object of the section which was to way. The general words or other thing prevent nuisances upon the public footways, be calculated to annoy or incommode could not regarded as having been in the contemplation therefore be restricted to things ejusden generis of the Legislature when it forbade by the 11th with "barrel, cask, butt." To 80
construe sub-section the carrying of things calculated to the sub-section would in effect be to hold annoy or incommode. A narrower construc. that it was по offence against the sub- tion would restrict the effect of section 3 of section to drag along a footpath a bundle of the Ordinance. The paramount object of long bamboo or fir poles, because neither was section 3 Was ejusden generis with either a barrel, a cask the footways from being annoyed or incom- to prevent persons using or a butt. It was however submitted that the moded. That object should, if the language genus, the class of objects contemplated by was susceptible of such a construction, be given the Ordinance, was not the limited genus within effect. Cases in point were mentioned in Max- which came barrel, cask or butt, but the wider well on the "Construction of Statutes," p. 480. genus which comprehended everything, includ- The cases Eastwood v Miller (L.R.G., Q.B., 440) ing of course barrels, casks and butts, which and Bows v. Fenwick (L.R., 9 C.P., 339) were was calculated to annoy or incommode passengers in point; also Shillits v. Thompson, IQ.B.D. 12. using the public footway. But even if the The Puigne Judge asked if a Volunteer words "calculated to annoy or incommode carrying a rifle would come under this sub- passengers" had been absent from the sub-section. section, even if the general words had been confined to the words “or other thing," those words would not be restricted in their meaning by the words "barrel, cask or butt," because it was clear from the scope and intention of the Ordinance that those words were not used in the limited order of ideas to which the words "barrel, cask or butt" belong; that was to say, it was clear on a consideration of the whole section that sub-section 11 was not intended to be limited in its scope to such things only as were ejusden generis with barrel, cask and butt because it would be futile legislation to forbid & barrel to be rolled along a footway but to per- mit a large bundle, of long poles, for instance, to be drawn along the footway. Without the words "calculated to annoy or incommode pas- sengers,” it would still have clearly appeared that the object of the legislation was to prevent passengers using the public footway from being annoyed or incommoded by things being carried or rolled upon it. Moreover the use of the word "carries as well as the word "rolls " indicated that the sub-section had a wider scope than it would have if it were limited to barrels, casks, butts and things ejusden generis therewith, because barrels, casks, butts and such like usually were not carried but rolled. The word carried" must therefore be taken as referring to other genera than the genus within which barrels, casks and butts are comprised. The sub- section therefore must be construed prohibiting the rolling upon the public The Chief Justice was of opinion that it footway of any barrel, cask or butt or aimed at keeping the pavement free from physi. the like, and also as prohibiting the carry-cal impediments. They must in such cases. ing on the public footway any other thing trust to the commonsense of the police and the calculated to annoy or incommode passengers. Magistrate. A case strongly in point was Skinner v. Shew, where it was held that having regard to the object of section 32 of the Patents Act, 1883, in construing the reference to "threats of legal proceedings by “circulars, advertisements or otherwise," the words or otherwise" were not to be restricted to threats' by measures ejusden, generis, with circulars and advertise ments, but were to be regarded as extending the previous words so as absolutely, to prohibit any,
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The Attorney-General certainly would.
replied that he
The Puisne Judge asked if his market coolie carrying a leg of mutton would come within the meaning of the sub-section.
The Attorney-General said the coolie would, even though it was the very best Australian mutton.
the Crown that was
The Puisne Judge as language of the Ordin Attorney-General
butt was a thing calculated commode
[Taly 90/190
or
decidedly
did, especially if it rolled bet
The Attorney-General said
The Pulsne Judge: conter
that construction, the words “· barrel, onal " or other thing" would render butt."
have been made short by simply saying that
The Attorney-General admitted that it could "any thing rolled or carried." The object of the Legislature was not directed to barrels, casks and butts alone, but they were included for the purpose of the Ordinance among the things. calculated to annoy or incommode.
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The Puisne Judge asked if the sub-section would refer to a dripping umbrella Pic
The Attorney-General held that it would, if the umbrella was big enough. If it was a doll's umbrella the Magistrate would dismiss the case, but not so if it was a huge umbrella such as he had seen the Chinese use.
a lot had to be left to the discretion of the police. The Chief Justice agreed that in such cases
and the question was, Should it be left to the The Puisne Judge said this was a legal point, discretion of the police? He was in favour of stopping this sort of thing, but had they the power to stop it? This was a very difficult case, and as it had only been brought before him that day he preferred to defer his judgment. \
The Chief Justice, stated: that he was quite to his learned brother he would defar his prepared to give judgment then, but in deference judgment also.
The Court adjourned sine die.
Thursday, 28th July.
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IN BANKRUPTCY.
BEFORE HIS HONOUR SIE WILLIAM M. Goodman (CHIEF JUSTICE).
APPLICATION FOR COSTS.
In the matter of Wong Tak Hing, ex parte Wong Hoi Sang, Mr. F. B. L. Bowley, of Messrs. Dennys and Bowley, solicitors, appeared in support of an application for payment of costs of Messrs. H. Skott & Co., merchants, in action No. 29 of 1903. The application, he said; was made under section 33, sub-section 2, of the Bankruptoy Ordinance.
The Chief Justice remarked that they would His Lordship asked the Official Receiver (Mr. have to find out if it was calculated to annoy. Bruce Shepherd) if he had any objection to the
The Puisne Judge asked if his valet-up-granting of the application P posing he had one-was carrying his portman- teau along the footpath, would he come within the meaning of the Ordinance.
The Attorney-General replied that he certainly would.
The PuisneJudge asked the Attorney-General to suppose that a Chinaman was carrying salt- fish which smelt along the footpath: would he come within the sub-section ?
The Attorney-General answered that he did not think olfactory offences came within the section.
The Chief Justice said that if one were ! walking close to him in the highway it would have the same effect.
The Attorney-General asked the Court if a 40 feet spear being carried along the pavement would not be calculated to annoy? Personally he should be extremely incommoded.
The Puisne Judge held that the real point was whether it was aimed at in this sub-section.
The Puisne Judge said everybody admitted that a bamboo pole would annoy and incommode; but, he repeated, does it come within this section ?
The Attorney-General held that it did. Where two constructions of an. Ordinance were possible, he said, it was, the duty of the Magistrate to adopt that construction which would promote and not defeat the object of the Ordinance. To strain the meaning of the Ack
The Official Receiver replied that he had heard of the application, only that morning. He had looked through the bill of costs and had no objection to it.
His Lordship--What is the figure ? Mr. Bowley-$15,000.
His Lordship And you say that by your action you succeeded in saving property to the value of $15,000 to the debtors P
Mr. Bowley-Yes.
His Lordship allowed the payment of costs as taxed.
▲ COMPOSITION. Mr. J. S. Harston, of Messrs. Ewens-and- Harston, solicitors, appeared for the petitioning creditor and the Official Receiver and made an application for approval of a proposal; for a composition in the matter of the Tung Chan firm, ex parte the Sni Kat Bank. ¡Mr. H. W Looker, of Messrs. Deacon, Loaker and Denoon, S solicitors, represented the Chartered Bank, and Mr. P. W. Goldring, solicitor, of Mr. John Hastings's office, appeared for Un Oi Yu, of the Kwong Yuen firm, who proposed to take over the bankrupts' business and pay a composition - of 66 per cent.
પાણી મ In his opening statement Mr. Harston said he had filed an affidavit showing that Un Oi Yu proposed to effect, the composition promissory notes payableï im within five months. Tha made a report upon application waG HA creditors for withd receiving order on- had made a
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