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May 2, 1908.]
SUPREME COURT.
Monday, 27th April.
IN CRIMINAL JURISDICTION,
BEFORE THE CHIEF JUSTICE
(SIR F. PIGGOTT).
THE FLORIDA WATER CASE,
The case was continued in which the proprie- tors of the Kwong Sang shop were charged with a breach of the Trade Marks Ordinance by applying a false trade description to bottles of
scent.
His Lordship said he had asked the Attorney. General to be present as he was not sure whether the prosecution was a Crown prosecution or a private one,
The Attorney General replied that no pro- secution could be conducted without the consent of the Crown and the Crown could allow any one to conduct the prosecution.
His Lord hip said the matter after all was purely academic.
Tung Tak Tim, recalled, told his Lordship that the management of the trade mark business was left to him, and the first and third defendants took no active part in it, with the exception of giving approval,
Sir Henry Berkeley devoted several hours to addressing the jury and was followed by Mr. Slade who spoke at less length.
The Chief Justice then summed up and ex- plained the legal aspects of the osse, He told the jury to consider the question that having had a vague impression of Lauman and Kemp's label, would the ordinary purchaser, on seeing the defendants' label be likely to buy the defendants' scent instead of that of Lanman and Kemp? He had certain questions to put
to them.
Sir Henry-I think it is a question for a verdict-guilty or act guilty.
The Chief Justice-It is absolutely essential- Sir Henry-We don't want a verdict by the Court but by the jury. I think it might very well be left to the jury If they think a man might be deceived by the two girls then the defendants are guilty.
His Lordship-I don't think that would be quite fair to your clients.
Sir Henry-You cannot make a jury. return a special verdict.
His Lorship-I think the questions ought to be put to the jury.
Sir Henry-You canuot make them answer them.
His Lordship-That is so. I shall put these questions to the jury, which, as Sir Henry say, I cannot ins'st upon your answering.
His Lordship then put the questions as to whether the trade mark used ly defendants so chsely resembled that of the prosecutors as to be calculated to deceive and as to whether the trade description being false they had t ken every reasonable precaution and that there was no intention to defraud on the part of the defendants.
ihe jury returned after an absence of twelve minutes and the foreman (Mr. Logan) announced that by six to one they had. found that the defendants were not guilty,
Sir Henry-I have to ask your Lordship to exercise your powers under the section and award costs to the defendants.
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His Lordship-Well, it is my
fara now. think it was the biggest fraud. I ever oame across in this Colony. I shall certainly not awaid any costs..
Wednesday 29th April,
IN ORIGINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR F. PIGGOTT).
CRIMINAL CONVERSATION" ACTION.
The action brought by Thomas Alexander Mitchell against John Lemm was a trial of issue of law. The Hon. Mr. H. E. Pollock, K.C., instructed by Mr. Steavenson, of Messrs. Deacon, Looker and Deacon, appeared for the plaintiff and Mr. M. Slade, instructed by Mr. J. Scott Harston, appeared for the defendant.
CHINA OVERLAND TRADE REFORT.
The statement of claim wae :
(1) The plaintiff is a master mariner in the employment of the Indo-China Steam Naviga- tion Company, Ltd. of which Jardine Matheson and Company Ltd. are the agents in this colony.
(2) The defendent is an architect of No. 64 Queen's Road Central, Victoria.
(3) The defendant on the 12th and 13 b days of October 1904 and on the 11th and 12th days of December 1904 and on divers other dates before and after the said date, wrongfully, wickedly and unjustly debauched and carnally knew one Henrietta Maud Mitchell, then being the wife of the plaintiff and bearing his name. (4) In consequence of the said misconduct of the defendant with the said Hearietta Maud Mitchell the plaintiff took legal proceedings in the First 'ivision of the Court of Session, Edinburgh, Scotland, against the said Henrietta Mand Mitchell, his wife, praying for a divorce from her on account of her misconduct with the aid defendant.
(5) Eventually, nam-ly on the 7th day of November, 1906 and after evidence as to the aaid misconduct had been taken on commission in Hongkong, the said Court found that im- proper conduct between the defendant and the said Henrietta Maud Mitchell had been proved and pronounced a decree of divorce against the said Henrietta Maud Mitchell accordingly..
(6) The costs which the plaintiff has either paid or become legally liable to pay of and inoidental to the said divorce proceedings amount to the sum of $15 175. 0..
The plaintiff therefor claims (1) Payment by the defendant to the plaintiff of the sum of 810,00 is damages for the improper conduct of the defendant in connection with the said
Henrietta Maud Mitchell and also payment by the defendant to the plaintiff of the further sum of 815,175.40 being special damages incurred by the plaintiff of and in connection with the said divorce proceedings.
Mr. Slade said they appeared to argue a question of law which arose on the pleadings, & question which was raised under the modern practice in the place of the old demurring. He was in fact demurri:g to the statement of claim as disclosing no cause of action which was tryable in that court. The cause of action was set out in paragraph 3, and paragraph 5 set out that decree had been pronounced and stated the amount of costs which had been paid by the plaintiff. Thes were items of special damages. There was no original claim upon the divorce proceedings because the defend nt was not a party to them. As his Lordship would see $10,00) was claimed from defendant for improper conduct in connection with Hen $15,000 was claimed as special damages incurred rietta Maud Mitchell and the further snm of
by the plaintiff in connection with the said divorce proceedings. The plaintiff took pro- coedings against his wife oaly. The defendant was not a party to these proceedings.
His Lordship-He was not a party ? Mr. Siade-No.
Mr. Pollock-He was not within the juris diation of the court in Scotland.
Mr. Slade That is a matter which we need not argue now.
His Lordship-I don't know what the point of law is.
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Mr. Slade-We are agreed; he was not a party. Now, my Lord, this cause is the old cause as to criminal conversation, a short history of which is given in Pollock on the Law of Torts. Mr. lade quoted the old law which regarded a wife as not being a free agent as regarded her husband who could bring an action against ar adulterer for damages in the same way as an action for damages for trespass could be raised. This was purely a common law cans. He argued that the Act of 1857 abolished the jurisdiction of the Common Law Courts with regard to actions for damages by a husband against a man who has committed adultery with his wife and transferred the entire jurisdiction to the Court for divorce and matrimonial causes. Up to 1857 a cause for criminal conversation conld be brought in England in the Common Law Court but after that year it
abolished and the jurisdic ion conferred
the Probate and Divorce Court. The jurisdiction of the Court in Hongkong was regulated by the Supreme Court Ordinance of 1873, and in
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dealing with that at length he argued that any law in force in England, which had been repealed by the local Legislature was a law which was inapplicable to the circumstances of the Colony.
His Lordship-It has never been decided. Mr. Pollock-I think it has been decided in a way contrary to what my friend contends.
Mr. Slade added that before that Ordinance was passed a Bill was passed in England repealing all the arcbaio criminal laws of England and that Act was subsequently extend d to this Colony by an Ordinance of the Legislature. Any other interpretation would work frightful chaos in our law. Alaw was inapplicable if it had been repealed by the local Legislature.
His Lordship-You mean this does not revive old laws which were repealed by the Act of 1873, Mr. Slade-Yes. Proceeding he said that the court had no jurisdiction to entertain this action. Any jurisdiction which the Court had had been abolished by the Ordinance of 1858 and had not been revived since, and he argued that it was clear from the statutory law in the Colony that action for criminal conversation, had been abolished here and the equivalent action which had been given in Eagland bad been deliberately withdrawn from the courts of the Colony,
There was no jarisdiction to
entertain the action.
Mr. Pollock submitted that seotion 9 of the Interpreting Ordinance did not apply to the circumstances of the present case. His Lordship would so that that Ordinance provided that it should not be considered a reviving any enactments previously rep aled unless wo ds were added expressly providing that. They had to tara to the Ordinance of 1858, upon which his friend relied. That Ordinance did not purport to repeal any previous enactments but on the contrary it obviously purported to extend to the Colony certain provisions contained in various Imperial enactments. Therefore he would submit that it was clear that the provisions of section 9 of the Interpreting Ordinanca of 1897 were not applicable to the circumstances of the present case. In other words Ordinance 5 of 1858 being repealed by the Ordinance of 1860, the force of Ordinance of 1845 as regarded bringing an action for damages for oriminal con- versation was continued by the Ordinance of 1860 and continued at the present time. Were it not so a man who sought damages for criminal conversation would have no remedy.
His Lordship-Supposing in 1848 there was an act giving the right to bring an action in this Colony, and it was expressly des troyed in 1858 and that the destroying statute was itself destroyed in 1860, does that revive the right of 1845 ?
Mr. Pollock-Yes.
His Lordship pointed out that Hongkong being a coded colony there wis no common law here, The common law of England was introduced here by s atute and therefore ba came statutory law.
Mr. ollock continuing said that the defend- ant could not be joined in the divorce proceed. inga in Scotland, and this was the orly course open to them. His friend contended that the Act of 1897 restricted their right to bring an action for the recovery of damages and yet they were not to have the alternative right under 33.
Judgment was reserved.
Thursday, 30th April.
IN APPELATE JURISDICTION.
BEFORE THE FULL COURT.
LEAVE TO APPEL.
An application was submitted to their Lord. ships (Sir F. Piggott, Chief Justice, and Mr. H. H. J. Gompertz, Acting Paisne Judge) for leave to appeal to the Privy Council in the case Chan Wo and others v. Chan Yam and others. This was an appeal from the decision of the Fall Court; on July 2nd 1907, arising out of a claim by the appellants for $4 '58 paid into court being part of a sum of $12,030.
The Hon. Mr. ́ ́, E. Pollock, K.C., instructed by Mr. Sergeant of Messrs Wilkinson and