June 12. 1909.]
SUPREME COURT.
Tuesday, June 8th.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR MR. H. H. J. GOMPERTZ (PUISNE JUDGE).
CLAIM AGAINST AN ACTOR.
Kwong Koon Kwan, trading as Wai Shing Tong, of 131 Connaught Road Central, sought to recover from Ling Yuk, an actor at the Tsung Hing theatre, the sum of 81,753.20 being principal and interest on money lent.
Plaintiff waived $753.20 in order to bring the action within the jurisdiction of the court.
Mr. Otto Kong Sing for plaintiff said Mr. d'Almada was to have appeared for the defendant, but he had written to say that he was no longer instructed.
His Lordship-Does the defendant appear in person?
Mr. Otto Kong Sing-Not that I know. think he has absconded.
I
Plaintiff then proved his claim, stating that the money was due on two promissory notes of $500 each:
His Lordship-You are wairing $700 Plaintiff-Yes, that is interest. Judgment was entered for plaintiff.
Wednesday, June 9th.
IN ORIGINAL JURISDICTI N.
BEFORE THE CHIEF JUSTICE (SIR F. PIGGOTT).
ACTION FOR CRIMINAL CONVERSATION.
Judgment was delivered by his Lordship on а point of law raised in the action brought by Thomas Alexander Mitchell against John Lemm for criminal conversation. Sir Henry Berkeley, K., instructed by Mr. Steavenson, of Messrs Deacon. Looker and Deacon, appeared for the plaintiff, and Mr. M. W. Slade, instructed by Mr. Harston, appeared for the defendant.
After explaining that plaintiff brought the present action on the same terms as the previous one, and stating, that defendant claimed that the matter was res judicata, his Lordship dealt with the authorities covering the case, and in conclusion said:-These cases proceed on an accepted principle, that so far as the law is con- cerned rights do not exist until they are ascer- tained, and determined by such ascertainment; and although the rights may have been in ex- istence for a long time, yet for all legal pur- poses, unless the decree ascertaining them otherwise orders, they are not acquired until a decree pronounces in favour of their existence. Acts of the parties may of course take the place of a decree ascertaining the right, if they are sufficient and effective. The application of this principle to retroactive legislation is established in these cases; it alters the rights which the persons affected had before it was passed, and they may enforce them; but it does not affect rights already acquired, that is, determined: and this simple explanation is sufficient; the person who has acquired them under the law as it existed at the time, and there is nothing left on which the new law can operate; the question is, in fact, decided, and is res judicata. It certainly requires express words to cancel or destroy rights which have already been determined and acquired.
CHINA OVERLAND TRADE REPORT.
the defendant acquire any rights by that judg- ment which are in issue in this action? If he did, alike on general principles as laid down in these cases, as on the effect of repeals as laid down in the Interpretation Ordinance, and which of course apply to this Ordinance, of 1908, those rights would be respected, and the matter would be res judicata. But the culy right which he could be said to have acquired was not to be rexed twice for the same cause, which is turning the argument in upon itself; it is petitio principii, and only raises again the very questions which I have been discussing. in order to ascertain whether they exist or not. The only other possible right which is perceptible as haring existed during the period 1895-1908, is to have criminal conversation with another man's wife with impunity. Such was the law then, and it has now been declared by the Legislature that it is to be deemed not to have been the law. I am therefore of opinion that from all points of view that plea fails. Whether as
a fact this defendant did have criminal conversa- tion with the plaintiff's wife, as is alleged, is a question still to be decided,
THE GOVERNOR AS PLAINTIFF.
499
to the claims of other lessees. With the majority of the frontagers in favour of the scheme the Government decided to proceed, and determined on what was, 'no doubt, forcible expropriation so far as the minority was con- cerned. After referring to the circumstances at the passing of the ordinance his Lordship con- tinued: Suppose in fact that some or many had raised the question that the original compact on which the ordinance was based, that the division was to proceed on the principle of equitable proportion, had not been complied with, can there be any doubt that they would have been entitled to be heard? Assuredly not. They could not have protested before the ordinance was passed because the plan was not in existence. Having had much practical experience in such matters. I say unhesitatingly that a Government would be mad which insisted on pressing through a scheme such as this if it had been challenged as being a breach of their original undertaking by those with whom the undertak- ing was entered into. Fortunately nothing of the sort happened, and so far as one can judge the adherents seem to have been satisfied that the Government had kept faith and that the His Lordship gave his formal judgment in proportions allotted to each were equitable the action in which H. E. the Governor was from the standpoint of each. There is no plaintiff, and Chu Ping, of 313 Des Voeux!eridence that such W38 the case, bat Road, was defendant. The action was for it might be well that this very question the specific performance by the defendant; which is raised between non-adherents," should of an agreement dated 19th December, 1889, have been raised among adherents; and I have whereby Chu Chuen (now deceased) agreed no hesitation in saying that if the question with the Governor of Hongkong, for the whether the complete ignoring of back section consideration therein mentioned, either to holders had been so raised they would have been resign an equitable proportion of the re- entitled to a patient, hearing and further that if clamation to Marine Lot No. 53A, or to pay there had only been one without prejudice to the an equivalent sum of money to the owners of rest of the scheme proceeding, he would have Section B. and D. of the said lot. The plaintiff been entitled to have the question, which is also asked for the specific performance of a raised in this action, very seriously considered second agreement dated 24tli. July, 1903, for by the Government, and if necessary, by the certain declarations, and for costs.
law officers at home. For I wish to say this at once: That is a very serious question, and one not to be 80 easily assumed adversely to the back section holders as seems to have been d ne by the Government in this case. Referring to the judgment of his learned predecessor, who said that "equitable proportion" meant so much as a court of equity would give, his Lordship said the Government ought to have treated the protest they had received with less scant courtesy than they did and a timely reference to the law officers at home would have saved this troublesome and very costly litigation. The Government had begun by ignoring its own ordinance. Its duty was manifest, and an amending ordinance ought to have been passed immediately giving the Government and the lessees further time to settle differences. He had been trained in the strictest school of constitutional law, more especially in its application to Crown Colonies; a legislature had been provided and the rights of that legislature must be respected even in the smallest detail. Further, in this case, the rights of individuals were being dealt with and the greatest circumspection was necessary on the part of the Government and its officers that everything should be done regularly.
He had no notion of a Government passing an ordinance and then acting antocratically as if no ordinance had been passed and doing what it thinks fit. learned predecessor in his judgment in the Full Court said: 'The Crown, could, however,
Sir Henry Berkeley, instructed by Mr. Dennys, took the place of the Hon Mr. H.E. Pollock, who formerly conducted the case for the plaintiff, and Mr. M. W. Slade and Mr. G. C. Alabaster, instructed by Mr. Gedge, of Messrs Johnson, Stokes and Master, appeared for the defendant.
In the course of a lengthy judgment his Lordship said: The preliminary objection had been taken that Sir Frederick Lugard had no right to bring the action. The position was this: It may be that the Government is to be ultimately benefitted by the agreements entered into in the case of the Praya reclamation but they are not entered into on its behalf, nor does the Government figure in any of them. Therefore, the simple case I have imagined of the Governor suing to enforce the rights of the Government does not arise, because, on the plain wording of the document, it has none. Therefore, if any action can be brought on this agreement, it must be brought by a prty to it, or some one to whom the rights have been assigned, and Sir Frederick Lugard is not a party to it, nor the assignee of the rights. This defect is not remedied by the addition that he is suing for and on behalf of the Governor of Hongkong. for the addition amounts to nothing, and cannot invest Sir Frederick Lugard with a right which he himself does not possess. I must therefore treat an action brought by Sir Frederick Lugard to enforce cause of action, which, if it exists at all, exists in him personally, though as his title to the action asserts rights, which would result from a judgment, they would not be his per- sonal rights, but would be obtained by him for and on behalf of the government of the Colony. A careful study of the ordinance. makes it remarkably plain, so plain that the wonder is that it should have been so misunderstood.
The Government
this as,
|
His
presume, by its representative, allow the agreement to be entered into after the three months under its general powers if not under its statutory authority." With much respect such general powers which involv. In coming back to the facts before me, I first
ed passing by the provisions of an ordinance did repeat the questions which I have already put,
not exist. For further guidance of the Execu- based on the standard cases on res judicata,
tive, he thought it advisable to correct such a Was the former judgment of this Court on the had this large scheme on hand and had deter-misleading impression, which seems to have merits of the issue raised in the present action mined to undertake it provided those who would prevailed in the colony, and what the Govern- between the parties? The answer must be directly benefit from it would bear the cost. ment thought they were achieving by dating "No." What then did that judgment decide? And the result of the preliminary negotiations the agreements and getting them signed by That the right of action for criminal was that the majority of the frontagers were the land officer within three months and not conversation was non-existent when the willing to accept this benefit provided they each by the other parties, more especially when the alleged adultery took place, because it had had some share in the land reclaimed. What other parties were not ready to sign them, ho been destroyed. That cannot be pleaded as res share? Well, the Government could not say had not the remotest idea. Certainly not com. judicata in this action, the basis of which is definitely, because the scheme was still in pliance with the ordinange. After referring to that the destroying Ordinance has itself been embryo: KO they said if you contribute the preliminary point that had been raised, his destroyed, its effect wiped out, and everything your share of the expense individually Lordship, said he was of opinion that Sir F. declared to be and to have been just as it was
you shall have what any one would Lugard the present Governor, had no right or before the Ordinance of 1895 was passed. I think was your proper share having regard title to sue on the agreements, and the fact that now put the question which results from the
he alleged that he was suing on behalf of the three cases which I have just examined. Did
Government did not alter the position of affairs
to the public requirements for roadways and streets; and of course having regard also