April 30, 1906.3
CHINA OVERLAND TRADE REPORT.
when he has exercised such harsh and summary powers as these, I believe my setion to have been right, by not sotiur " judicially" now, then the word “judicial” has lost all meaning.
The motion is refused.
Mr. Sharp-I have to ask your Lordship now, following the precedent in the oase on whish your Lordship has relied, that of Bunder Singh," with a view to proceedings which I think your Lordship is aware it is intended to take by way of an application for appeal to His Majesty's Privy Council, to stay further execution of your order for one month.
His Lordship-The next appeal is to the Full Court,
Mr. Sharp-I don't think- the appeal was brought before the Full Court. His Lordship-In that oase of Sunder Singh There was a condemnation by the Puisne Judge and the appliction to have it set aside
was made before the Full Court.
ed, but that its punishment must be preceded by somebting approaching a regular enquiry There are many cases in which this is obvious, as in the case of newspaper comments: it is only when the ontempt is in open court that the dealing with the case seems to be summary, and this the Judicis Committee have droided is not d proper method of dealing with it, It is not necessary to pursue the supposed analogy between the case of contempt and that of perjury au further because the law in the case of perjury makes it punishable summarily; and if punishable sum- marily the power must be exercise then and there sedente curia, I can ree no half-way honse between the course which I adopted in this case and the impossible procedure suggested by the learned counsel. And. if Pollard's case is not applicable, I am boun by the decision of the Full Court in Funder Singh's case decided in 1897 and I desire to say that I agree with every word which fell from the leseyed Judges, ex ept, for the reasons already stated, as to the
Mr. Sharp-As your Lordship is aware, an adcisability of putting to the witness the appeal lies direct to the Privy Council, and I question whether he has anything to say why he think under the circumstances your Lordship should not be committed. The last point taken taking the view which you have takeo-it would was as to the recessity of the warrant being be superfluous to appeal again to the Fall under the hand and seal of the commit Court in which your Lordship has the ting Judge. The authority oited
was preponderating vote. I think you will agree, Hawkins' Pleas of the Crown, where it is following the precedent in Pollard's case, said that a commitment "must be in writing, that this would be the convenient course to under the hand end seal of the person by whom it is made, and expressing his office, or authority, and the time and pl ce at which it is made". To act on this would be upsetting the practice of this Court since its foundation. On reference to the New Encyclopædia-and I wish to say here that no book published in modern times
His Lordship-The application is for a has more facilitated or expedited the administra-month in which to consider your position? tion of justice, nor enabled Courts to deal more
Mr. Sharp-It is necessary to consider our promptly with false points which are sprang position to take necessary steps which cannot upon them, than this valuable work—I find it be taken instantaneously. suggested that this saying of Hawkins, so far His Lordship-That would postpone the
take here in order to save time and trouble. We quite respect your Lordship's view. We would ask your Lordship to stay execution to consider whether we should appeal to the Privy Council. The intention is the same as in the case mentioned.
as the necessity for a written commitment is con-imprisonment for a year.
Mr. Sharp-They would have to return to prison.
His Lordship-Then it would be no use staying execution for a month.
Mr. Sharp-We thought it better to adhere to this precedent. If it is intended to appeal to the Privy Council, we shall make application, but we wish first to consider our position. The matter
will ooie before your Lordship automatically in a month's time. If your Lordship prefers three weeks we will take it so. tion will be stayed for a month.
His Lordship-Take a month. The execu
cerned, does not apply to courts of record. The Mr. Sharp-Supposing the Privy Council reference is to Burns' Justice of the Peace, and decides in our favour it would only be just that There (p. 851 of the 20th edition) it is quoted meanwhile the prisoners should be out of goal, with reference to Justices specially: but there otherwise the decision in their favour would do follows this limitation ; “ but this is to be un-them no good. If the Privy Council take the derstood of those osses where a statute either | vi-w we submit these men would not be expressly or in effect so requires, for indepen-imprisoned. dently of the requirements of a statute, there His Lordship-Supposing the Privy Council does not appear to be any general principle does not support your view? requiring a seal." This was decided by Erle J. in re Bowdler (17 L. J. Q. B. 243). And what is true of the “seal" must also be true of the "hand"; so that nothing is left of Hawkins' statement. As a matter of fact this order was made in the course of civil pro ceedings, and so falls within section 349 of the Code of Civil Procedure, which enables a minute of every order to be made by the Registrar, and which gives such minute the same force and effect as au order of the Court. The learned counsel who appeared for the pisintiff on the issue contended that I had not 'so ed judicially" in this matter. This is a serious charge to make against a judge and one to which the maxim audi alteram partem is peculiarly applicable. If to act, after a loog trial, of a conviction which had been growing day by day as the trial proceeded, a conviction based on the demeanour of the witnesses in the box, and a more shifty lot of witnesses I never came across on the complete failure of their evidence to come within measurable distance of the opening of connsel on an important branch of the case, on their petfy denials of facts which were irrelevant almost to the issue, and on that general impression of their veracity which it is the duty of a Judge to receive: having regard too to the position of these men, 'who were to all intents and purposes plaintiffs in the issue, and to the absence of the other greditors, far more numerous, who might have spoken to that part of the case which con- cerned the management of the Bank, if it were true: or of the remainder of the thirty, or forty alleged to have been presept at the His Lordship called the bailiff, Mr. Howell. "creditors' meeting, and who might have spoken who said he had been unable to find Wong to what Wong Ka-cheung is stated to have Tre.
305
Thursday, April 26thus golfsen
ÎN APPELLATÉ JURISDICTION, VÁS
Barons TÉ FULL COURT.
THE SALE OF A NEWSPAPERĄ
This was an appeal from the decision of the Paisne Judge in the osse of Tam Man Sam u. Tam Yan and Cheung Sau-pang, the origina. action being a claim for $1,000, $500 for return of money deposited by plaintiff with defendant on 2nd June, 1905, in part payment of purchase money for the business, property and effects of the Sii Kai Kung Yick Co., under contract, and $500 for damages for breach of said contract. Mr. H. E. Pollock, K.C., instructed by Mr. C. E. H. Beavis (of Messrs. Wilkinson and Grist), appeared for appellants, and Mr. M. W Slade, instructed by Mr. Steavenson (of Messrs. Deacon, Looker, and Deacon), appeared for respondents.
'i be facts were that a Chinese newspaper was offered for sale, and plaintiff's tender was accepted by the liquidators, but when plaintiff and his staff attempted to take possession on a certain date they were ordered out.
Mr. Pollook, in opening, said their Lordships would remember that the matter came before the Court on a previous occasion. An order was made on 4th November, 1905, for a speciál osse to be stated, but when the matter came subse quently before their Lordships it transpired that the parties could not agree on the special case to be stated, and following the suggestion made by the Court each party was to give its own version of the various clauses in dispute. It would be convenient if he referred to the special case, because it contained the document which they submitted was very important, the sgreement between the parties, the document which contained the clause with reference to the forfeiture of the deposit money. After reading the special case, counsel stated that the question was whether appellant's deposit of $500 was liable to forfeiture. There was no doubt that the appellant when he tendered on 4th June a portion of the purchase money had saddled it with conditions which the Paizne Judge bad decided he had no right to do. Appellant was bound by that ruling, but their Lordships would bear in mind that it was admitted on behalf of the respondents that such a condition was made. The Chief Justice-The effect would he the same as if the tender had not been made ?
Mr. Pollook—Yes. Continuing, he said it had not that effect. It was important as showing that the appellant did not wish to repudiate the contract. As a matter of fact he was too eager and wanted to take over the business some ten days before he had a right to do it. Proceeding, he contended that the only right to forfeit a deposit would arise if the conduct of the party amounted to repudiation of his part of the contract. It could not be said that appellant was in default until after 14th Jane, samuming that on the 4th June he did something, which he ought not to have done. He did not show
Mr. Sharp-Thank you. His Lordship-Bail must be fixed. Mr. Sharp-Would your Lordship take the any intention of repudiation. He wsa too same amount, $750 each man ?
His Lordship - I think the security should be $1,000 in each case. The execution is only with regard to the seven.
Mr. ha p-The principle applies in the same way to the eighth man.
His Lordship-But he is evading the law. Mr. Sharp-If we are right in principle the protection applies to this man as well.
His Lordship—I should not dream of staying the execution against Wong Tse. He is evading the law.
|
Mr. Sharp-If he comes before your Lord ship, he will be put in the same position.
His Lordship-That is another matter. I should require much heavier bail in his case,
Mr. Sharp-Is it true that no attempt has| been made to find Wong Tee?
said, if that were trus: having regard further His Lordship-We must leare Wong Tse's to the many points of prejudice against the case. I cannot pledge myself. defendant which were commenced or hinted at Mr. Sharp-We have every reason to believe but not pressed home, and of which I greatly the man has been in his shop every day. He disapproved, was acting “ judically"; then: and was certainly there for several days after the 1if, after the most serious consideration sub- Į trial.
́sequently, which a Judge is bound to give The Court was adjourned.
eager. Having become the highest tender, he was anxious to take the control of the business.
Mr. Blade, for the respondents, contended that the deposit was by way of a guarantee for the performance of the contract. It was not a performanos of the contract to tender the right price on the wrong day. The contract was not completed in due time by reason of any default on the part of respondents. It was not som plated in time soleƉy by resson of the purebaser who had by his own not disabled himself from being able to do it. The clause in the agres ment was not exclusive and if the general rule of law gave no other grounds of forfeiture of the deposit, the vendors conid appropriate the deposit under those rules.
Mr. Pollock replied to the points raised by Mr. Slade.
Their Lordships reserved judgment.
IN ORIGINAL JURISDICTION.
Berorn Siz Francis Piggott (Chiar JUSTIOR).
AN UNFULFILLED Lo Pan-ki and another, Lok Street, sued Ch
at 214, Wins
!
$