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should be changed. It is held that there is discretion in this matter. I cannot see where discretion come in. If it is considered that the practice of the Court should be maintained and the question of discretion put beyond doubt, I would suggest that the seotion might well be amended as follows. If the judgment is for money the creditor might at his option enforce it either by imprisonment or by the attachment and cale of the defendant's pro- perty or by both if necessary. The second matter not arising directly out of the Bill is concerned with Chapter XXV of the Code which deals with the subject of arrest and attachment before judgment. There again I understand that the practice dating back to 1873 has been recently abandoned. In the old days, and I be lieve still in one division of the Court, the judge has either issued or refused to issue a warrant, but now there has been a refusal to issue the warrant and a substitution of a summons for a wairant. The procedure, Sir, has been that the plantiff takes out bis writ of summons. He o mes before the Court on an exparte sum- mons, backed up by affidavits, and the judge having assured himself by such investigation | as he considered necessary that there was probable reason for believing the defendant was about to leave the jurisdiction has issued a warrant to the bailiff to bring the defendant before the Court that he may show cause why be should not give security for his appearance. To substitute for that a procedure the result of which allows the defendant time to run away in the interval between the issue and the return of the summons,—a direct invitation to run away, in fact is not in my opinion called for cr justified between the issue and the service of the summons a man bad time to hire a launch and, putting several thousand dollars on board, get out of jurisdiction. That seems to me contrary to the spirit of this section and contrary to the experience in this Colony that the proper method is to issue a warrant in the first place so that the man shall not be able to escape. Several suggestions have been made as to the way in which the Chapter should be amended. Some are in favour of amending it by putting it beyond a doubt that there shall be no discretion in the Court to issue a summons at all but that "the Court shall issue a warrant." On the other hand it has been suggested that in Line 5 of Section 168 the words exparte should be put in, and that in Sections 567 and other sections a discretion to issue & summons in cases when the Court on investigation does not con- sider it necessary to issue a warrant be allowed. Also that the necessity for investi- gation should be dispensed with, the affida. vits being satisfactory. My point is that as the matter stands at present a very clear pronounce ment is wanted that the uniform practice of the court should be adhered to, and that there is no discretion to issue a summons. I suggest for the serious consideration of the Standing Law Committee that some alteration should be made in the Sub-sections 567 and 672. No discretion should be allowed about issuing a summons the service of which is nothing but giving notice to the defendant to run away. Another matter deals with chapter XVII which pertains to foreign attachment. It may be within the memory of some members that Sections 457 to 463 were recently under the consideration of the Chief Justice when he delivered judgment on 7th November 1905. A difficulty had arisen as to whether Section 458 as to priority of writs of foreign attachment which reached the bailiff was applicable to osses of attachment of immovables. The Chief Justice held that it was applicable, but in his judgment indicated that the heading of the chapter was erroneous, and secondly he pointed out that the question of priority of writs of foreign attachment was difficult, and that the Code was not free from doubt. I would suggest to the Standing Law Committee that that is a matter to which they might give their consideration and add an amendment to the present Bill. there are other points with regard to Sections 158 and 168 of the Code. At present these seem incon- sistent one with the other. When the Code
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was passed Section 168 allowed no pleading subsequent to the statement of defence without leave of the Court. That section was amended and a reply was allowed to be filed within three
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THE HONGKONG WEEKLY PRESS AND
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[September 17, 1906.
weeks of the date of theservice of the statement of interpolated in section 43 (2). Otherwise the defence, and no pleading subsequent to the two clauses are exactly the same. Those are the reply was to be pleaded without leave of two points on which solicitors are practically the Court. I would suggest that the words agreed. There are many other points "may before reply” be substituted for the words in the Bill which they would like to be may within four days after service of the state. | considered but the Colonial Secretary has ex- ment of defence" in order to bring it into pressed the views whick they laid before me that conformity with the English Code, which in if an amending ordinance is to be brought his case, is useful. Another matter deals within it should be made thoroughly effective. | Section 423 (1), which deals with the claims of ❘ It seems sound COMMONSStise that there third parties to attached property. That was being no urgency for the Bill being rushed taken out of Indian Code. Under the last dozen through, time should be given for greater words a difficulty has arisen as to the relative consideration, so that there will be Do position of the claimant and of the judg-occasion for introducing a second bill ment creditor. That difficulty was settled in when the subject has been more fully India by an enactment which struck out the considered by the members of the legal closing words and substituted the words as if profession. There are many points in the the claimant were a party to the suit. existing Code which apparently need revision Another matter pointed out to me, Sir, but the only one to which I will refer is the was Section 443 (3) and (4). It has been question of issuing a summons instead of a suggested that these sub-sections should be warrant. Under section 587 of the existing considered in the light of Section 79 (6) of the Code, as I am informed by those who under old Code. Another point is Section 278, in which stand the law, there should be no doubt it has been suggested to me, also at short notice, as to the powers of the Court and I am also that the English rule in Order 27 (2 to 15) informed that recently that procedure has been might well be incorporated in the Code in lien upset and the rule that no warrant can be of Section 278. It is suggested that Order XX. issued without a summɔas being issued in the Rule 1 (a) might very well be introduced, because first place is now followed. As we are all by that rule a special endorsement is considered in aware the large proportion of Chinese England to be a statement of claim, whereas creditors are in the habit when they here: the case specially endorsed writ a state- find themselves in difficulties, of pass- ment of claim is to be delivered in the same waying into China, where no warrant can as in an ordinary action. Thes", sir, are all reach them. When a debtor receives the points I have to bring before the notice summons, he does not wait for the of the Standing Law Committee when it sits. I warrant, but immediately removes himself and know, Sir, there is a strong feeling among the his property from the Colony. This to my mind legal community that opportunity should be is another instance of inconsistency on the part taken of this Amending Bill to include all mat- of those who have brought in this innovation. ters of practice which call for amendment. With I would not have taken up time in referring to these remarks I beg to second the motion. these points only I have been asked to do so by
certain members of the profession.
The Hon Mr. GRESSON-If this Bill is read a second time does that mean it becomes law ?
His EXCELLENCY-Oh, no. I think the best thing to do is to refer the Bill to the Standing Law Committee which has con- siderable power and may recommend that the Bill be not proceeded with or introduce certain amendments. We are not very competent to deal with the matter in the whole Council. I propose we should have the Bill read a second time and then referred to the Standing Law Committee.
The motion was agreed to.
The ATTORNEY-GENERAL moved that the Bill be referied to the Standing Law Com- mittee.
The COLONIAL SECRETARY seconded and the motion was agreed to.
AMENDMEN OF LUNACY ORDINANCE. The ATTORNEY-GENERAL moved the second reading of the Bill entitled An Ordinance to amend the Luossy Ordinance, 1906.
The COLONIAL SECRETARY seconded, and、 the Bill was read a second time.
The ATTORNEY GENERAL moved that the Council resolve itself into committee.
The COLONIAL SECRETARY seconded, and the motion was agreed to.
The HON. MR. HEWETT---Åt our last meeting you stated, Sir, when the Bill was read a first time that it would be referred to the legal practitioners. A very short time has passed since then and it has not been possible for the members of that profession to thoroughly consider the Bill now before the Chamber. They have considered it to some extent, and yesterday I was approached by several legal gentlemen who asked me to lay their views bafore the Council. Since then some of the practitioners in the courts have evidently also approached the Hon. the Colonial Secretary who is better qualified to speak on this subject. I think, Sir, it is only right that I should endorse, so far as one without legal knowledge may, what has been said by the Hon. the Colonial Secretary with regard to section 42 (e). The objections taken to it have been fully explained by him. It is unnecessary for me to refer at length to the point which has been very clearly explained already. I would point out the difficulty which would arise by changing the present wording in the Code section 42. To my mind there is no reason why the Code should be altered. 1 speak as a business man not as a legal man. Suppose a man enters into a contract to supply goods in China, say goods to be delivered and paid for in Canton. The contract was originally made in Hongkong. Under the existing Code should the contract not be properly carried out it is open to the plaintiff to proceed against the defendant in the courts here, although the breach of contract would not have occurred within the jurisdiction of the court. It seems to me somewhat in- consistent that the judges of the court-I understand the Chief Justice has to some extent promoted this amending ordinance-should have made such a proposal because if my memory serves me right the present judges and their predecessors have time after time during the past years complained of the difficulties that business people have in recovering against absconding debtors from Hongkong. Yet it appears by this proposal that those difficulties are very largely increased. I fail to understand why such proposal should be made. Again in sub- master of junks and vessels in addition to section 2 of this amending section 42 there owner of wharf and landing place." This is Bre the words "Whether such defendant necessary in view of the frequent congestion is a British subject or not." Now, Sir, it is caused by steam launches lying alongside or extremely difficult for any Chinese, European blocking the approach to vessels lying at anchor or American resident in the Colony to state in the harbour. Hitherto there has been no whether any Chinese resident here is a British special regulation dealing with that subject, and subject or not. If this proposal is adopted it it has always been a great difficulty to ensure will appear as if the Bill is going out of its way clear gangway. The power it is proposed to to increase the difficulties of a plaintiff proceed-confer on the masters of vessels will no doubt be ing against a defendant. These words are appreciated by them as by the public who
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On the Council resuming
His EXCELLENCY-I have to report that a Bill entitled an Ordinance to amend the Lunacy Ordinance, 1906, has passed throngh committee without amendment.
MERCHANT SHIPPING ORDINANCE, The ATTORNEY-GENERAL moved the second reading of the Bill entitled An Ordinance farther to amend the Merchant Shipping Ordinance, 1899, and for other purposes. He said-The object is to make effective provision for preventing obstruction in the harbour sad making better provision for the issuing of licences to the masters of trading junks,
The HARBOUR MASTER-I rise, Bir, to second the resolution. With referrence to section 2 of the amending ordinance, the sole section referred to has been expanded to include the words
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