CO129-007 - Sir John Davis - 1844 — Page 137

Proceedings, orders

c. to be in form prescribed in Schedule.

Court may dismiss action or complaint with costs, c.

not under Jurisdiction.

Defendant or Defendants, viva voce on their several corporal Oaths; and that it shall be lawful for the said Chief Justice to award costs in all actions or complaints, heard and determined under the aforesaid Summary Jurisdiction, and to allow to the Plaintiff or Defendant, and to his, her, or their Witnesses such reasonable sum or sums of money for his, her, or their attendance and loss of time as he the said Chief Justice shall think fit.

117. And be it further enacted and ordained, That the several proceedings, orders, decrees, and dismissals, which shall be taken, prosecuted, made, and pronounced in pursuance of the aforesaid Summary Jurisdiction, shall be in the form prescribed in the Schedule hereunto annexed, marked (No. 11.) or as near thereto as circumstances will admit.

118. And be it further enacted and ordained, That it shall be lawful for the said Chief Justice, and he is hereby authorized and empowered, to dismiss any such action or complaint before him with costs, and either on the merits, or without prejudice to further or other proceedings, as he shall think fit.

Consequences of 119. And be it further enacted and ordained, That if any action or suit shall be proceeding commenced in the Supreme Court of Hongkong for any debt, or damages, other than Summary hereinbefore excepted, not exceeding the sum of One hundred dollars, and recoverable under and by virtue of the Summary Jurisdiction given by this Ordinance, the Plaintiff or Plaintiffs in such action or suit shall not by reason of any verdict for him, her, or them, or otherwise, be entitled to any costs whatsoever; and if the verdict shall be given for the Defendant or Defendants in such action or suit, and the Chief Justice of the said Court shall think fit to certify that such action or suit ought to have been brought and tried before him under the Summary Jurisdiction of the Court, then such Defendant or Defendants shall have double costs, and shall have such remedy for recovering the same as any Defendant or Defendants may have for his, her, or their costs in any case by law.

120.--And be it further enacted and ordained, That no person whatever shall be fendants to attend permitted to appear and act in any such summary proceeding for or on behalf of any personally unless Plaintiff or Defendant therein, unless it shall be first proved to the satisfaction of the unavoidably pre Chief Justice of the Court that such Plaintiff or Defendant is prevented by some unavoidable necessity, or some good and sufficient cause, from attending such Court in person.

Plaintiffs and De- vented.

Witnesses not at- tending, and persons made with respect to the non-attendance of Witnesses pursuant to their subpœnas, guilty of Contempt, and to persons guilty of a Contempt of the Court, shall apply to and be in force as to all low punished.

Perjury.

Execution,

Power to appoint special bailiffs.

Orders and decrees may be executed any where within the Colony.

Time of levy.

Mode of proceed- ing in the writ of execution.

121-And be it further enacted and ordained, That the provisions hereinbefore tending, and persons guilty of Contempt of the Court, shall apply to and be in force as to all matters and proceedings under the Summary Jurisdiction of the said Court,

122.-And be it further enacted and ordained. That the provisions hereinbefore made with respect to persons guilty of wilful and corrupt perjury shall apply to and be in force as to all matters and proceedings under the Summary Jurisdiction of the said Court.

123.-And he it further enacted and ordained, That in each and every case within the Summary Jurisdiction of the Court where the Chief Justice thereof shall have made any order or decree for the payment of money, it shall and may be lawful for the said Chief Justice, at the prayer of the party so prosecuting such order or decree, to issue a precept signed by the said Chief Justice, in the nature of a writ of Fieri facias, or Capias ad satisfaciendum, which precept shall be directed to one or more Bailiff or Bailiffs of the said Court who is and are hereby authorized and empowered to levy the amount thereof of the goods chattels and effects of the Defendant, or to arrest the Defendant, as the case may be : Provided, that it shall be lawful for the said Chief Justice and he is hereby empowered and authorized, when thereto required by the Plaintiff in any suit or proceeding wherein such precept or writ may be issued, to appoint one or more special Bailiff or Bailiffs, to be named by the said Plaintiff, to execute such precept or writ, upon receiving from such Plaintiff full and sufficient security against any improper use or abuse of such precept or writ.

124. And be it further enacted and ordained, That all such orders and decrees shall and may be carried into execution in any district or place whatsoever, within the said Colony where the Defendant, his goods, chattels, or effects may be found or be met with Provided, that all executions and processes against the goods, chattels, and effects of the Defendant shall be executed between sunrise and sunset, in like manner as is hereinbefore provided with respect to such executions; and that any officer or person executing the same at any other time shall be liable to the same fine as is hereinbefore also provided in such cases.

125-And be it further enacted and ordained, That for the purpose of preventing ing in the writ of any disputes as to the mode of executing the said last mentioned writ or precept, the same shall be executed in the following manner; that is to say, that the Bailiff or Bailiffs be directed, in the first instance, to levy on the goods, chattels, and effects of the Defendant, and that, in the event of such Bailiff or Bailiffs not being able to find any goods, chattels, or effects of the Defendant, and the Defendant failing to point out to his or their notice any goods, chattels, or effects whereon to levy the amount, it shall and may be lawful for the said Bailiff or Bailiffs to enforce the order, or decree of the Court by the personal arrest and imprisonment of the Defendant as hereinafter is mentioned: Provided, that if previous to the sale of the property so levied upon a disputed claim shall be made thereto, and such claim shall be deposed to on Oath before a Magistrate by the party claiming the same, or by some person on his or her behalf, the Bailiff or Bailiffs, on payment to him, or them, or either of them, of the costs of the levy by such party, or other person claiming on his or her behalf, shall release such property from the execution, and proceed to enforce the order or decree of the Court by levying upon other goods, chattels, and effects of the Defendant, if any can be found or pointed out to him or them, or by arresting the body of the Defendant as hereinbefore is directed.

Proviso as to disputed claim to goods, &c.

Imprisonment by 10 exceed three

126.-Provided always, and be it further enacted and ordained, That every such Defendant who shall be arrested and taken in execution under the process of the said process of Court not Court, as last aforesaid, shall and may be imprisoned in the prison of the said Court, and months. shall be there detained for a space of time not exceeding three Calendar months, unless before the expiration thereof, the order or decree of the said Court shall have been satisfied; and in case such order, or decree, shall not then be satisfied, such Defendant shall be discharged from such prison; but it shall be lawful for the Complainant at any time within three years after such order, or decree, to take out fresh execution against any estate, or effects which such Defendant may have become possessed of, or entitled to, until such order, or decree, shall be fully satisfied.

127.--And be it further enacted and ordained, That no execution awarded against

Liability of future effects.

Execution not to 8 Anne C. 14.

the goods of any party or parties shall extend to, or be construed to extend to deprive prejudice Landlords. any Landlord or Landlords of the power vested in such Landlord or Landlords by an Act passed in the eighth year of the reign of her late Majesty Queen Anne, intituled "An Act for the better security of Rents and to prevent frauds committed by Tenants" of recovering one year's rent by virtue of, and in pursuance of the said Act.

128.- And be it further enacted and ordained, That it shall be lawful for the said Court may order Chief Justice, whenever it shall appear to him that the levy of the full amount of any money to be paid by

instalments. such order, or decree, of the said Court at one time may be attended with great distress to the Defendant, and that such distress may be avoided or lessened by enlarging the time for satisfying such order, or decree, to order and direct the amount thereof, together with the costs and charges, to be levied by instalments, at such stated times, and in such proportional amounts, as shall be expressed in such order, and as shall be reasonable and just: Provided, that the time for satisfying any such order, or decree, shall not exceed three months from the time of making such order as aforesaid: Provided also, that in case such Defendant shall fail to pay any such instalment agreeably to such order, in every such case the Plaintiff may proceed to take out execution for the amount of such order, or decree, and the costs and charges thereof, then remaining due and unsatisfied, in like manner as if no such order as aforesaid had been made..

129.--And be it further enacted and ordained, That all orders, and decrees, or other decision, so to be made or pronounced by the said Chief Justice in any such Summary proceeding as aforesaid, shall be final and conclusive to all intents and purposes whatsoever.

Orders to be final.

Actions against

General Issue. Officers, &c.

130. And be it further enacted and ordained, That in case any action or suit, shall at any time hereafter be commenced, or brought against any Officer, or Officers of the said officers, &c. Court, or against any other person or persons, for any thing done in pursuance of, or under the authority of this Ordinance, it shall and may be lawful for such Officer or Officers, or other person or persons, in every suit or action to plead the general issue, and give this Ordinance, and the special matter in evidence; and in case the Plaintiff or Plaintiffs, in such action or suit, shall have a verdict pass against him or them, or be nonsuit, or discontinue his, her, or their action or suit, the Defendant or Defendants, shall in any of the said cases be allowed double costs

Proceedings not to

of form. be set aside for want

131. And be it further enacted and ordained, That no action or complaint, or other proceeding under the Summary Jurisdiction given by this Ordinance shall be treated or considered as invalid, or subject to be set aside, on account of any verbal or technical error; but that all errors and mistakes not having a tendency to mislead the opposite party shall and may, in all cases, be amended or altered by the Court.

132.-And be it further enacted and ordained, That in all actions and complaints

Allowance and re- covery of fees.

or other proceedings under the Summary Jurisdiction given by this Ordinance, the fees specified in the schedule hereunto annexed, marked (N. 12.) shall, unless and until otherwise ordered and directed, be established, and be deemed and taken, as the lawful fees and emoluments for the discharge of the several duties therein specified; and the Chief Justice of the said Court shall have full power to compel the payment thereof in a summary way, by order, and on non-payment, by warrant of distress and sale, under his hand and sealed with the seal of the Court;

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