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September 17, 1906.]
CHINA OVERLAND TRADE REFORT.
the prospecting stage, and If it proves to be the into line as far as applicable with that of the success that its promoters anticipate the Colony | courts of England. will grantly benefit thereby. Another great induster is to be started this year by the Hong. kong Milling Co, at Junk Bay, to which we wish every success. (Applause.) Speaking last year on the subject of industries I referred to the assistance which was given to the promotion by exhibitions. Since then we have completed an exhibition of the products of Hongkong and of those of South China which pass through Hongkong in the Imperial Institute in London. An exhibition of industrial arts in the Colony has been arranged for, and we have also started again the annual flower show Gentlemen, I thank you for the attention with which you have listened to my somewhat halting remarks. I also take this opportunity of expressing my thanks for the advice which has been given me not only on the subject of these estimates, bat on ofher subjects, not only by the official but by the unofficial members both in this Connoil Chamber and outside of it (Applause).
The motion was agreed too.
PREPARED OPIUM ORDINANCE.
The ATTORNEY GENERAL moved the first reading of a Bill entitled an Ordinance to amend the Prepared Opium Ordinance, 1891.
The COLONIAL SECRETARY seconded, and the motion was agreed to,
CODE OF CIVIL PROCEDURE.
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The COLONIAL SECRETARY-In seconding the motion that this Bill be read a second time I wish to make a few remarks to the Council on certain matters which not only occurred to my self but which were suggested to me from out- side. I hope that my remarks will not be taken to be didactic or hostile. I don't wish to teach anybody anything and I don't wish to be hostile to any particular person. I think that this Bill before the House for amending the Code of Civil Procedure should be framed to make that amendment as complete as possible. The matters on which I wish to address the Council fall into two categories. The first includes matters which arise out of the Bill and the second includes matters which, though they do not arise strictly out of the Bill, yet would fall within the scope of the Bill as a Bill to amend the Code of Civil Procedure. Dealing with the first category, the Bill as a whole is one to which I think no objection can be taken, bat there are certain points in which think it should be amended. The first point to which I would direct attention is section six which proposes to amend the whole of section 42 of the Code. Section 42 reads-(1) "Service out of the jurisdiction of a writ of summons or notice of a writ of summons, may be allowed by the Court unless the case falls within the provisions of Ordinance No. 1 of 1851." I think, Sir, when the Bill is The ATTORNEY-GENERAL moved the second referred to the Standing Law Committee reading of the Bill entitled An Ordinance to that that Committee will come the amend the Code of Civil Procedure. In doing conclusion that these words unless the so he said--The reason for the introduction of case falls within the provisions of Ordinance the Bill is so obvious that it is not necessary No 1 of 1851" are useless. Ordinance No for me to say much at this stage, except to of 1851 an Ordinance which provides that explain that the object of the Bill is to bring Chinese born in China would not be allowed to into line as far as expedient the procedure of litigate in this Colony on a cause of action the Supreme Court in this Colony with, which arose in China unless the defendant that of the Supreme Court in England had resided in the Colony for six months. If The chief object of assimilating the the jurisdiction does not arise there is no need procedure which is obvious to all who have to insert these words. Again if circumstances practised in the courts is that the decisions have arisen which confer jurisdiction on the of the courts in England upon
rules Court, under Ordinance No 1 of 1851. I think of practice and procedure shall be applicable to it is a fortiori unnecessary to exclude that cases that arise on similar rules in this Colony, Ordinance from the operation of this and that the judge of the Supreme Court here section. I see no reason why, under these will be guided by the considered decisions of circumstances, if a defendant runa away the courts in England. The Bill deals prao to Chins the plaintiff should be defeated in tically in its entirety with one matter, that is, bringing an action simply because he is not the alteration of the present procedure with allowed to serve the « rit out of the jurisdiction on respect to service out of jurisdiction. The the absent defendant. The second matter arising alterations proposed by the Bill have been primarily out of the Bill before the Council proposed on account of the necessity which is a matter to which the Hon. Attorney. appears to the Chief Justice and the General has already referred, section 42 (1) (e) Puisne Judge of the change advocated to He proposes to substitute that sub-section for bring our procedure more into line with the existing sub-section which says" Service out that of England. There is one portion of of the jurisdiction, etc" [Beads]. The difficulty the procedure with respect to service ont of suggested by the Attorney-General is what is the jurisdiction in which it is proposed to make a cause of action. I will deal with the suggested sharp difference to that in existence, and to difficulty as the cause of action. I think I can follow more closely the spirit of the correspond say in an experience of many years in this Colony ing section of the English code. It is proposed that this matter has not troubled a single judge that section 42 of the principal Code be re-up to the present moment, and I think it is not pealed, and another section substituted. Sub-section E. of that section will be found to be the same as section 42 (e) of the Code of Civil Procedure. At present service out of jurisdic- tion may be ordered in every case where the cause of action arises in the Colony. That used to be the practice or something like it under the old Common Law Procedure Act., but différences of opinion were expressed between the Courts of Common Pleas and the Courts of Queen's Bench as to the meaning of "cause of action." One Court held the cause of action to be the contract. The other Court held, more properly, in my opinion, that the cause of action is the breach of the contract. There could be no action unless the contract has not been observed. The cause of action is not the contract but the breach. That is the view taken by the Chief Justice and that is in his opinion sufficient to call for an alteration of the present system. The other changes in that section are practically verbal. They give legislative effect to the prac ice that bas been to my knowledge followed for at least four years in the Colony which provides that notice of writ, instead of service of writ be given to a person ont of jurisdiction and who is not a British anbject. The seventh clause of the Bill is now. Nothing of the sort appairs in our Code. As I have said, the principle of the Bill is to bring our practice and procedure
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which it is proposed to substitute for it. If we examine the reason for the English practice, I think we shall find that England being adjacent to the Continent where there are civil- ised countries who have ofvil tribunals of recog. nised status, if a man comes to a court in England to institute an action for a breach of a contract
which ought to have been performed outside the jurisdiction of the English courts and the breach of which occurred outside the jurisdiction of the courts in England he would be told-you have your proper remedy in the courts of the country where the breach of contract has occurred and where the contract ought to have been performed. When we come to this Colony I think the circumstances are totally different from the circumstances in England, Putting aside any relation with Manila or with other parts of the world, our immediate relations are with China. I think nobody, Sir, will contend that the civil tribunals of China
are yet in a state to offer proper redress to the Westerner or to the Chinese who are British born, neither do I think that anybody will contend that at present the Occidental residents of this Colony should be deprived of the right which the tribunals of this Colony afford them and be referred to the civil tribunals of China for redress. To show, Sir, that these are not merely my own opinions or the opinions of the people of this Colony but the opinions of the Government of China itself I would refer to the British Com- mercial Treaty of September 1902, Artiole XII which reads "China having expressed a strong desire to reform her judicial system and bring it into accord with that of Western nations, Great Britain agrees to do," etc. I think I have given sufficient reasons in support of my contention that the present section has a wider scope than the proposed sub- section. I should be the last, Sir, to say that conformity to English procedure is not laudable thing, but when English procedure is brought into conflict with the interests of the people most concerned, then I plump for the interests of the people of this Colony rather than for conformity to English practice. The present sub-section was deliberately inserted by the committee of men of experience--though it included myself who had long legal practice in this Colony and for no light reason should there be any attempt to substitute for it a section which I think is not so good. These are two matters which arise out of the Bill itself. In the second category are matters
which do not arise out of the Bill. I bad thought of certain amendments which might be suggested to the Standing Law Committee and only this morning I received several additional suggestions. An amendment which does not arise out of the Bill concerns Section 371 [Reads]. Now, Sir, that section is taken out of the old Hongkong Code which dates back as far as 1873, and the practice until recently on that section has been uniform. The practice has been to give to the creditor the option of whether likely to give any trouble to any judge in the he will enforce his judgment by means of future. So far as the difficulty of deciding what imprisonment or by means of attachment and is a cause of action is concerned I think sale of property. I don't see why the plaintiff that the reason for the alteration of the sub- should be deprived of what in my opinion is his section is not valid. I can show good reason right to imprison the debtor on a judgment . why the present sub-section should not be summons instead of being compelled to attach tampered with. If the Standing Law and sell his property. That practice has been Committee will look at the present sub endorsed by judges and it has not section they will find that that sub-section been held to be illegal, and I don't see contains no restriction such as that the con-
why it should be set aside. I under- tract the breach of which gives cause of stand, Sir, one argument is that the action must be a contract which ought to only form in the Schedule is Form 30 which, be performed within the jurisdiction. In that by-the-bye, is not marginally noted against respect the present sub-section has a wider Section 371 but against 399. The contention is scope than that proposed to be substituted for it. that that form is part and parcel of the Ordi- Moreover the present sub-section provides not nance and does not empower the Court to allow only for the case whether the contract is made creditor to enforce the judgment for money outside the Colony or within the Colony and by means of imprisonment, only by means the breach occurs within the Colony, but also that of Attachment and sale. Apart from if the contract was made in the Colony e. the contention that that Form 30 does within the jurisdiction, a writ of action would specifically apply to Section 371 I would beg lie though the breach may have occurred to bring to the notice of the Standing Law elsewhere. Therefore these two important Committee Section 709. So far as the principles, namely, that breach is not necessarily forms may be incomplete, all forms at confined to breach within the jurisdiction and present in use may be used for the purpose of secondly that the contract the breach of which carrying out this code. When this code causes the action must not necessarily be a came into operation, there was a form which contract which according to ita terms allowed immediate execution of the judgment ought
be performed within the by the imprisonment of the debtor, if he would jurisdiction, render the present sub-section not pay up. There seems to be no reason the of greater scope than the sub-section' practice hitherto in force under Section 371
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