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August 8, 1904. j
the Attorney-General referred the Court; they were Skinner v. Shew (1893) 1 Ch. at p. 421. Eastwood v. Miller, L.R. 9 Q.B. 440, and Bows r. Fenwick, 9 C.P. 339. I will content myself with remarking that Eastwood r. Miller is overruled in Powell . Kempton Park Race- course Co. (1897), 2 Q.B. at p. 280, and that Lord Davey in the same case. on appeal to the House of Lords, said in (1899) A.C. at p. 183. that the distinction between Bows r. Fenwick and Callaway v. Maries was too thin to be a good ground for decision, cases with reference to which A. L. Smith L.J.. said that Gallaway v. Maries had gone too far, and that the limit to which the provisions of the Betting Act 1853 could be extended had been reached in Bows v. Fenwick. Hence, one of th cases quoted has been overruled and the other has been discredited: Moreover, as both those cases, if rightly decided, could be supported only on the basis that the spot where the betting went on was within the words "other place." because other place” meant a place akin or equivalent to a betting house or office, they are to that extent authorities in support of the ejusdem generis construction placed by the Magistrate on the now dehated sub-section. These two cases were overruled or discredited because they went too far in deciding that certain spots were places ejusdem generis with a betting house or office, not because the words other place were wrongly construed ejusde generis, Next, the Court was pressed with the case of Skinner & Co. v. Shew & Co. on behalf of the appellant. In that case the words "where any by circulars, advertisements or otherwise, threatens any other person with any legal proceedings." were under the notice of the Court.
person
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A person had received by letter a threat of legal proceedings, and the question was whether a threat by letter was a threat within the language quoted. The Court held that such a threat was within the words of the section, and that the words or otherwise were not erdem geeris with the words circulars and advertise. ments, and included hy letter. It is evident from the judgment of A. C. Smith, C.J. that he would have construed the words or otherwise us ejusdem generis with hy circular, advertisements unless he had found in the section an absolute prohibition against threatening legal proceed. ings at all; or in other words unless the object of the section was to prevent all threats. how- soever communicated and it was because the substance of the section would have been missed if a threat by letter had been held not to be within the enactment that the Court held that by letter was covered by the words or otherwise. In passing. I observe that in Skinner r. Shew it was not the action of the threat, but the manner of the threat that was under discussion; in the present case. it is the nature of a thing and not its manner of use which is in question. Now, before Skinner v. Shew can be held to govern this case, the Court must find that the object of the sub-section under consideration was to prevent the carrying on the footway of all things whatsoever calculated to annoy or incommode passengers; so that the exclusion of such a thing as a bamboo pole from the operation of the section would cause the substance of the section to be missed. Unfor. tunately. I am very clearly of opinion that the object of the sub-section in question was not the comprehensive purpose for which the appellant contends, but was limited to a much smaller range of objects: and I have arrived at this conclusion by the same process by which the Court of Appeal arrived at its conclusion in Skinner v. Shew, viz. by an examination of the language of the sub-section. In Skinner v. Shew it was held that the ejusdem generis rule was overpowered by the manifest object of the action: that reason for rejecting the ejusdem generis construction in the present instance does not in my judgment exist, and the case quoted therefore does not govern the present case. For the reasons given, I have come to the con- clusion that the magistrate was right, and that the words barrel, cask, butt or other thing calcu- lated, &c., must be construed to mean barrel, cask, butt, or other like thing, calculated, &c., and not to mean barrel, cask, butt or any other thing whatsoever calculated, &c.
CHINA OVERLAND TRADE REPORT. with the whole language of the subsection. also think that the latter construction strains I the language in order to extend the remedy to a nuisance not yet legislated against. If I may properly say so. whilst on the one hand I regret that a bamboo pole is not within the legal purview of the sub-section, yet, on the other hand. it is satisfactory to know that my conclu. sion exempts from liability to arrest without warrant and to fine or, in default, imprisonment. a far larger number of persons carrying on the footway articles which, thongh calculated to annoy or incommode, are articles of every day necessity and convenience. For there is no getting away from the fact that the con- struction contended for by the appellant. though only affecting in the particular in- stance a person carrying a bamboo pole. must by force of the ratio decidendi sweep into the sub-section that large class of persons already indicated. I have only to add that it was very unfortunate that no one appeared at the hearing of the appeal to argue on behalf of the respond. ent. The appeal ought in my opinion to be dismissed with costs.
The Chief Justice.-The ease will now go back to the Magistrate, and I have no doubt he will note the views I have given effect to.
The Attorney-General-The Magistrate can detain the coolie for two minutes. to decide the legal question that the appeal was It was only
brought.
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The Chief Justice pointed out that the maximum of £5. changed under the New Ordinances to 850, was made to cover a great number of different offences of different degrees of magnitude Although a person convicted under the sub-section could be fined the maxi- mum amount, yet he imagined that one-tenth would be ample. He also imagined that in the majority of cases the police would not prosecute on the first offence if the man was willing to desist. as it was only necessary in occasional i cases, The law had been in force 60 years!
without causing any great hardship.
The Attorney-General
opined that the decision arrived at by the Court could not lead to any hardship being inflicted, but a contrary decision would have led to interminable nuisances on the footpaths.
I think that the former construction is not only more reasonable than the latter construc- tion, but is also beyond doubt more in conso nance
The Court adjourned sine die.
ADVENT OF H.F. THE GOVERNOR.
A HEARTY WELCOME.
97
Diesen;
Commanding H.M. Forest in 8. Chins and Major-General Villiers Hatton, C.B., Officer Hongkong: Capt. Ward, Aide-de-camp to Major-General Villiers Hatton; Sir H. S. Berkeley, Attorney-General; Hon. L. A. M. Johnstone, Colonial Treasurer, and Mrs. Johnstone: Hon. P. N. H. Jones, Acting Director of Public Works; Hon. Sir W. M. Goodman, Chief Justice, and Lady Goodman; the Bishop of Victoria, and Mr. Hoare; Hon. A. W. Brewin. Registrar-General. and Mrs. Brewin; Hon. Sir C. P. Chater, Kt.. C.M G., Hon. Ho Kai, M.B., C.M..C.M.G., Hon. Wei A Yuk; Hon. R. Shewan, Hon. Gershom Stewart, and Mrs. modore C. G. Dicken. and Mrs. G. Stewart; Hon. W. J. Gresson; Com- Mr. F. J. Badeley, Captain Superintendent Captain_Superintendent of Police; Mr P. of Police; Mr. E. R. Hallifax, Deputy P. J. Wodehouse, Assistant Captain Super- Acting Police Magistrate, Mr. A. intendent of Police; Mr. H. H. J. Gompertz, Acting Registrar of the Supreme Court; Dr. Seth, J. M. Atkinson. Principal Civil Medical Officer: Major A. B. Hamilton. Chief Staff Major Dopping-Hepenstal, Major Fitzwilliams Officer; Major A. A. Chichester, D.A.Q.M.G.. Lieut. Col. Birdwood, Col. Watts, S.F.; Col. F. E. Kent. Commanding .G.A.; Major French. A.S.C.; Lieut.-Col. R. G. Iremonger. Commanding 93rd Burma Infantry; Col. W. E. Webb. Principal Army Medical Officer; Dr. Kruger, German Consul; M. Gaston Liébert, French Consul; Chov. Z. Volpicelli. Italian Consul. and Mme. Volpicelli; Mr. M.Noma. Japanese Consul: Sr. A. G. Romano, Portu- Marty. Spanish Consul; Mr. Nic olas Post. guese and Brazilias Consul-General; Mr. A. P.
Droeze Consul for the Netherlands: General Consul for Austria Hungary; Mr. T. J. Haver Bragg United States Consul-General. M. Bar- retto. Consul for Mexico; Mr. Haupt. Consul. for Denmark ; Mr. Gonzales. onsul for Chili; Mr. Harleng. Consul for Sweden and
Norway Mr. A. Chapman Dr. W. W. Pearse, Medical' Officer of Health; Mrs. Layton; Mrs. Fitzwilliams; Miss Stilwell: Miss Law: Mrs. Raymond: Messrs. R. C. Wilcox. D. ". Law, J. R. M. Smith, . R. Scott, W. B. Dixon. Bruce Shepherd. G. Bateson Wright. H. N. Mody. Fung Wa Chun, and many others, including represent- atives from the different religious bodies in the Colony,
His Excellency the Governor. Sir Matthew Nathan. set foot on Hongkong soil on the 29th ult. for the first time, and received a welcome that must have appeared to him a happy, augury. Blake Pier, at which the Governor landed. was made as presentable for the occasion as such an erection could be made. On the palmate roof, and pendant from it, were festoons of greenery and flowers. On the gangway itself. little forests of palms and shrubs were grouped. and the nakedness of the timber supports was hiddenin swathings of crimson cloth. Opposite the place of debarkation, scaffoldings and build- ing gear were ve y much in evidence; but if not esthetically pleasing in Excellency may have consoled himself with the;
appearance. His
reflection that they were very concrete re- presentations of commercial prosperity and progress.
ON THE WATER.
All the ships in harbour wore special bant- ting to brighten the occasion. The men-of-war were dressed rainbow-fashion, the Commodore's Tamar being conspicuously gay.
THE CROWD.
COLLEGIANS HAIL HIM.
The boys of St. Joseph's College were before all in crying "hail out to the Nubia in a, launch. Two hundred to the Governor, going and fifty lusty young throats cheered His Ex- cellency as he passed on the Victoria, and were rewarded with a good-natured smile.
H.E.'S FIRST HONGKONG TRIP. The Harbour-master (Captain Barnes-Law. reuce. R.N.) went out in the launch Victoria, with Mr. Ponsonby, (Private Secretary to over the stretch of water between the vessel and H. E. Mr. May) to take charge of the Governor
the landing plac .
THE LANDING.
Nathan, and his Aide-de-camp, Lieut. Arbuth- As the launch Victoria, with Sir Matthew
was fired from the Tamar. H.E. was met at not Leslie. left the side of the Nubia a salute
and Major-General Villiers Hatton. After the steps of Blake Pier by the Hon. F. H. May
shaking hands. Mr. May proceeded to intro- duce him to the members of the Legislative Council, and Major-General Villiers Hatton performed a like ceremony embracing the Army officers present. After bowing to Mrs. May and the other ladies, and the large assembly, H.E. was given a Salute by the Guard of Honour. Between the pier and the serried lines of He proceeded to inspect the Guard. The band the Sappers was congregated a crowd of in the rear struck up "God Save the King," Hongkong's representative citizens. uniforms, and a sprinkling of pretty toilettes,
The and all the men present bared their heads to the fierce rays of the sun. After the inspection ought to have brought a smile of pleasure H.E. and his Aide-de-camp were conveyed in to the gubernative countenance. That they Government House chairs to the Legislative did not succeed was perhaps due to the battery Council Chamber. of Kodaks turned upon him. There must have been quite two hundred lenses taking in the strong, resolute lineaments of the new ruler. Among those present to receive His Excellency we noticed Hon. F. H. May, C.M.G., Colonial Secretary, ex-Officer Ad- ministering the
AT THE COUNCIL CHAMBUË, Government, and Mrs. May; Capt. Hurly, 93rd
A fair number of people assembled in the Infantry, Aide-de-camp to Mr. May; H.E. oaths.
Burma Light | Council Chamber to witness the taking of the
THE GUARD.
The Guard of Honour consisted of 100 men
being in command), and the band of the Sher- of the Royal Engineers (Capt. Watkins, R.E., wood Foresters.