434
to what they were previous to 1894, at, the French Convent the average number received during the last four years is larger than any number received in any single year previous to 1894, except the year 1893.
The average number received into the French Convent per year for the last 20 years is 1,415, while the Italian Convent's average for the same period is 546.
Laid on the table.
THE OBNOXIOUS SECT ON AGAIN.
Correspondence was submitted relative to section 175 of the Public Health and Buildings | Ordinance, 1903, in respect of Nos. 377 and 379 Queen's Road West. Messrs. Leigh and Orange, architects, wrote stating that each of these houses bad an open space in the rear ex- ceeding 50 square feet in area, and that the right of way in the rear could not be built upon. They therefore submitted that the owner had provided the
necessary space required by
Ordinance 1 of 1903.
The LAND OFFICER minuted that the lane at the rear of these houses was a private one and might be built upon subject to the approval of the Building Authority, which would probably not be granted as the plans for letting out the lot no doubt showed an open lane and were approved subject to that i.., they would not have been approved without the lane being opened.
Mr. SHELTON-HOOPER-After reading the minute of the Land Officer I think the applica- tion should certainly be granted.
Mr. HUMPHREYS-Under what section could the Building Authority withhold permission to build on private property ?
Mr. Lau CHU PAK-This application should be granted.
Members agreed that the notice served on the owner should be withdrawn on the condition that the lane at the rear be preserved as an open space.
MORTALITY STATISTICS.
The mortality statistics for the week ended May 25th showed that at a death rate of 1,000 per annum the percentage for the week ending May 18th was 19.6; and for the following week 20.5 against 34.1 for the corresponding week Jast year.
SUPREME COURT.
Monday, June 24th.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.]
DAVID SASSOON AND CO. v. YUE WING FIRM.
Judgment was given in the appeal, in which the Yue Wing firm, of 15, Jervois Street were the appellante, and Messrs. David Sassoon and Co. of 8, Des Voeux Road, the respondents. The appeal was against an order made by the Chief Justice in Chambers, in favour of the plaintiffs in the original action.
Sir Henry Berkeley, instructed by Mr. F. X. d'Almada e Castro, appeared for the appellants, the respondents being represented by Mr. M. W. Slade, instructed by Mr. D. V. Steavenson (f Messrs. Deacon, Looker and Deacon).
:
The Chief Justice said :-The following is the definition of liquidated damages given in the new Encylopedia (Vgl. IV, page 102) "When ever the amount to which the plaintiff is en- titled can be ascertained by calculation or fixed by any scale of charges or any positive date, it is said to be liquidated, or made clear. But when the amount to be recovered depends on all the circumstances of the case and on the con-
|
THE HONGKONG WEEKLY PRESS AND
1
The
sion v. Hills (1906 A.C. at page 375) where it is said that a sum specified in the contract is liquidated damages and not a penalty when it is a genuine pre-estimate of the creditor's probable or possible interest in the dus performano of the principal obligation. The damages are liquidated because of the genuine pre-eati mate of their amount. So it may reasonably be said that if the amount of the demand to be inserted in the particulars of the writ can be pre-cstimated in a genuine manner on an acknowledged principle of law then it is liquidated and may form the particulare of claim on A specially endorsed writ Convenience is certainly in favour of this explanation of the term. The defendant is given at once the fullest particulars of the claim made against him. Is is not put at any disadvantage for if he contests either the amount of the claim or the principle of law on which it is assessed he will get leave to defend. case is absolutely different from a claim for damages for breach of a contract which have to be assessed by a jury or the judge. Test the matter by two simple methods. If an applica- tion were made to set the case down for bearing b fore a judge with a jury on the ground that the damages required assessing by a jury of commercial men the application would be refused becaused the only question is one of law and if the law is right the assessment is already made. Again, supposing the writ not to have been specially endorsed and the defendant not appearing the case was tried in Court ex parte. The claim would be formulated it is formulated in the particulars of claim, the amounts being supported by vouchers. As to this latter illustration I think it advisable to allude to a point of practice in connection with signing judgment ou specially endorsed writs in default of apparance, which has Occasioned
trouble. me some
At Home, I believe, signing judgment in these circum-
of form. But stances is a matter
I bave
as
introduced a practice here of always requiring the documents, whether promissory notes or mortgages, or whatever they may be on which the claim is founded to be produced. I have on one or two occasious refused the application because it is bad in law. I
can find
по
authority for this action in the Eaglish practice books; but it is a good one in the opinion of the Puiane Judge and myself and we take this opportunity of confirming the practice in the Full Court. Applied to such a case as the present it would require the pro- duction of the vouchers before the Registrar before judgment is signed. I am glad that this question has been raised in the way it has been, as it has enabled me to consider
the reasons for
order I the carefully made on this summons in Chambers, where
instinct than од
upon
the
ope is obliged aften to work more by definite principles, if these are Tot immediately available. regret that the Court should not be agreed a question of practice but though I cannot pretend that the point is clear I do not in any way see my way to alter the opinion I had formed. The plaintiff was right to issue a specially endorsed writ, the principle I have id down being applicable to all the several items of his claim. These are (a) for balance of account, (b) for damages for non-acceptance of goods estimated on the difference between the actual price in the contract and price they fetched upon the market when sold, (c) for auctioneer's charges properly incurred in connection with the sale. The defendant was within his rights in raising the initial question of law whether the claim writ. This being dec.ded against him the order was properly the subject of a special y endorsed I originally made stands, and he may if he No authority is cited for this proposi-thinks fit file affidavits in order to obtain leave tion, but it seems to me to be very sound law, I acted in the present case on the following variant, which clearly comes within it :-Where the amount to which the plaintiff is entitled is capable of being assessed by a well-known principle of law then the damages are liqui dated. With the exception of the above quota. tion from the Encyclopedia I have not been able to find any other attempt to analyse the real meaning of the phre-liquidated demand-but there is one which explains the difference be- tween liquidated damages and penalty, which has certainly some affinity with the present question. It is to be found in the Public Works Commis
duct of the parties, and is fixed by opinion or by estimate, the damages are said to be uuliqui
dated.'
to defend. I have not referred to Runnac'es v. Mesquita (1 Q. B. D. page 416) because it was one of the early decisious on Order XIV, and it seems to me to go great length. But it was decision of Cockburn C. J. and it is still quot d as an authority in the White Book. This claim was on a quantum meruit and although the point was not specially argued, because it was apparently not specially takeb, the writ was specially endorsed and the case argued on it. The decision supports the proposition in the White Book that a claim for reasonable remuneration not expressly fixed by contract
[June 29, 1907. may be specially endorsed as a debt or liquidated demand.
The Puisne Judge said he regretted to dis- agree with the Chief Justice. In his opinion two of the three items (the second and third) on the writ did not justify the summary judgment. The Chief Justice-The appeal is dismissed with costs.
Sir Henry Berkeley said the money was in Court and he asked leave for a stay of execution in order to give appel ants time to consider their position.
The Chief Justice--You shall have 14 days,
IN ORIGINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR FRANCIS PIG JOTT).
AN ARBITRATION
CASE.
In the matter of the arbitration between the executrix and the executors of Choy Chan deceased and Tsan King contractor, Mr. M. W. Slade, instructed by Mr. Holborrow of Messrs. Deacon. Looker and Deacon, appeared for the plaicliffs, and Sir Henry Berkeley, K.C., in- structed by Mr. Harsthouse, appeared for the defendant.
This was a special cas set down for hearing before his Honour by the arbitrator, Mr. W. Danby. Plaintiffs had complained that defen. dant had not completed certain work in the time stated in the contract and that in consequence they had sustained damage. The arbitrator stated that he was satisfied that there had been unreasonable delay on the part of the contractor and that damage had been sustained by the plaintiffs who claimed that defendant had been overpaid and that they were entitled to a con- siderable sum
in liquidation of damages. On the other hand Tsan King averred that he was entitled to a greater sum than he had received for the work done,
length, after which Sir Henry B rkeley ad- Mr. Slade opened the case at considerable
dressed the court, and the case was adjourned.
IN ADMIRALTY JURISDICTION.
BEFORE THE CHIEF JUSTICE (SI& FRANCIS PIGGOTT), AND THE HON. MR. E. A. HEWETT (NAUTICAL ASSESSOR).
1 SALVAGE CLAIM.
Judgment was delivered in the action for salvage brought by the Hamburg-Amerika Linie and the master and crew of the 8.8. Aragonia" against the China Navigation Company, Ld., the owners of the s.s. "Hupeh
Mr. M. W .Slade and freight. (instructed by Mr. G. Hastings of Messrs. Hastings and Hastings) appeared for the plaintiffs, while, defendants were represented by ́ the Hon. Mr. H. E. Pollock, K.C., (instructed by Messrs. Johnson, Stokes and Master).
her
cargo
The Chief Justice found for the plaintiffs in the sum of £1,50", expenses and costs. The expenses were placed at :-Coal, 3900, Telegrams, one day's charter 8575; overtime 891; and $600. Of the £1,500 the master was to receive £250 and the crew £300, The chief officer and deck officers to count with the chief engineer and offlors below in respect to the pro rata
distribution of the £300,
The full text of the jigment will appear later.
Monday 24th June.
IN ADMIRALTY JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIE FRANCIS
PIGGOTT), AND THE HOV. MB. E. A. HEWETI (NAUTICAL ASSESSOR).
A BALVAGE CLAIM.
"
Appended is the full text of the Judgment delivered in the action for salvage brought
Linie by the Hamburg-Ameriks
and the master and crew of the s.s. "Achgoais" against the China Navigation Company, Ld., the owners of the s.s. Hupeh" de cargo and freight.
His Honour said: The s.s. "Hapsh" was lying at anchor disabled in the China Sea in latitude 27.16 N., longitude 121.25 E. and 28 fathoms, on the morning of Dec. 6. She had broken her
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