sought to be recovered.
iv
In other cases, such as administration suits, suits to take partnership accounts, suits for specific performance, and suits for foreclosure or redemption, it is often from the first known what order must be made upon the hearing of the cause. In many such suits, notwithstanding improvements recently introduced, the proceedings are still conducted as they are in suits involving a real question as to the plaintiff's right to relief. Considerable delay is thus enused, and useless costs are incurred."
all suits, we think, should be commenced by a document to be called a Writ of Summons, and these writs of summons should be issued from one office. In all cases in which the plaintiff seeks to recover a money demand, whether founded upon a legal or equitable right, the practice established by the Common Law Procedure Act, 1852, should, we think, bo adopted and the writ should be specially endorsed with the amount sought to be recovered, and in default of appearance the plaintiff should be allowed to sign judgment for it. Further, in all cases in which a special endorsement has been made on a writ, and the defendant has appeared, the plaintiff should be cutitled, on affidavit verifying the cause of action, and swearing that in his belief there is no defence, to take out a summons to show cause why he should not be at liberty to sign judgment; upon which summons such order may be made as the justice of the case may require.”
In like ioanner, in cases of ordinary account, as in the case of a partnership or executorship, or ordinary trust account, where nothing more is required in the first instance than an account, the writ should he specially endorsed, and in default of appearance, or after appearance, unless the defendant shall satisfy a Judge that there is really some preliminary question to be tried, an order for the account, with all usual directions, should be forthwith male. The Judge should also be empowered at any time, on summary application in Chambers or elsewhere, to direct, if he think fit, any necessary inquiries or accounts, notwithstanding it may appear that there is some special or further relief sought, or some special matter to be tried, as to which it may be proper that the suit should proceed in the ordinary manner,"
"When the Defendant enters an appearance, and the suit has to proceed further, the issues between the parties must be ascertained by pleading, or otherwise. The systems of pleading now ia use, both at Common Law and in Equity, appear to us to be open to serious objections. Common Law pleadings are apt to be mixed averments of law and fact, varied and multiplied in form, and leading to a great number of useless issues, while the facts which lie behind them are seidon clearly discoverable. Equity pleadings, on the other hand, commonly take the form of a prolix narrative of the facts relied upon by the party, with copies or extracts of deeds, correspondence, and other documents, and other par- riculars of evidence, set forth at needless length. The best system would be ene, which combined the comparative brevity of the simpler forms of Common Law pleading with the principle of stating, intelligibly and not technically, the substance of the facts relied upon as constituting the plaintiff's or the defendant's case, aa distinguished from his evidence. It is upon this principle that most modern improvements of pleading have been founded, both in the United States and in our own colonies and Indian possessions, and in the practice recently settled for the Courts of Probate and Divorce."
We recommend that a short statement constructed on this principle, of the frets constituting the plaintiff's cause of complaint, not on cath, to be called the Declaration, abould be delivered to the defendant. Thereupon the defendant should deliver to the plaintiff a short statement, not on oath, of the facts constituting the defence, to be called the Answer. When new nets are alleged in the Answer. the plaintiff should be at liberty to reply. The pleadings should not go beyond the reply, save by special permission of a Judge; but the Judge should, at any stage of the proceedings, perrait such amendment in or addition to the pleadings as he may think necessary for determining the real question or controversy between the parties, apon sneh terms, as to ensts and otherwise, as he may think fit."
We think, that ʼn defendant, having a right or claim against a plaintiff with reference to the subject matter of the suit, or arising out of the same transaction, which at present he cannot enforce without a separate or cross action or suit. should be at liberty to bring forward such right or claim by his Answer, which, in that case, should have the same effect as if it were a declaration in a cross action or suit, so as to enable the Court or a Judge to pronounce a final judgment between the parties with respect both to the original and to the cross demand. The same principle might, we think, be extended to the recovery of other demands of the defendant, capable of being set off against the plaintiff's demand, when the balance is in favour of the defendant. But a Judge should be empowered, on application by the plaintiff before trial, to refuse permission to allow such cross right or claim to be brought forward, if he shall be of opinion that it cannot con- veniently be adjudicated upon in the ease to he tried. "
"We think also, that the Court should have power to direct that any person not originally a party to the suit, but who may have such an interest in the subject matter thereof as to make his presence necessary or expedient to enable the Court to do complete justice, should be summoned to attend the further proceedings and be bound thereby; and that, with this view, the plaintiff should be at liberty to make any person, against whom he may conceive himself to be entitled to relief, a party defendant to the suit. And, on the other hand, that, where the defendant is or claims to be entitled to cou- tribution or to indemnity or other relief over against any other person or persons, or where from any other cause it shall appear to the Court, fit that a question in the sulf should be determined, not only as between the plaintiff and defendant, hut as between the defendant and any other person, the Court should have power to make such order as may be proper for the purpose of having the question so determined.”
8. The Draft of a Code for the Supreme Court of Hongkong which I have prepared consists of One hundred Sections, divided into Five Parts and Twenty Chapters. It deals in consecutive order with the proceedings in a suit from its institution to the final decree, and is mainly compiled from Imperial Acts and Local Ordinances, the Code of Civil Procedure of India, the Rules of Her Majesty's Supreme Court for China and Japan, and the Report of the Royal Judicature Commission. It will be observed that in the margin of each Section there is a reference to the Act, Ordinance, Code, or Rule, from which it is adopted, so that any detailed explanation of its Provisions is unnecessary.
9. In accordance with one of the recommendations of the Royal Judicature Commission, the Code provides that all Suits shall be commenced by Writ of Summons, and the practice of issuing Writs spe- cially endorsed has been retained and extended to many cases in which this Summary Remedy has not hitherto been applied.
10. Part IV relates to special suits, and under the head of Foreign Attachment," the Provisions
of Ordinance No. 2 of 1855, have been entirely remodelled, and many of its defects have been remedied. It also provides a simple Procedure for suits against the Government, suits of Mandamus, suits on Bills of Exchange and suits in forma pauperis.
11. Section XCIX provides for the amendment of the Code by a resolution of the Legislative Council whenever it may be deemed expedient, without having recourse to the passing of a new Ordinance for that purpose; and although by Section IV, all the Imperial Acts and Local Ordinances relating to Pro- cedure now in force in the Colony are suspended, power is reserved to the Court to apply any of those enactments in the event of any case arising, for which no special provision may have been made; and the Code will, I trust, be found to comprise nearly all the reforms and improvements which have been suggested by recent Legislation and discussion, both in England and in India, on the subject of Legal Procedure,
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12. The Appendix contains two additional Draft Ordinances. The first provides for the abolition of the Court of Summary Jurisdiction and confers upon the Supreme Court a Summary Jurisdiction at Law and in Equity. The second provides for the reconstitution of the Supreme Court and the appointment of a Puisne Judge. Those two Ordinances, if approved of and adopted, should be passed simultaneously with the Code, in order that the three measures may be brought into foren uno flatu.
Hongkong, June, 1878.
JULIAN PAUNCEFOTE, Attorney General.
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