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THE HONGKONG GOVERNMENT GAZETTE, 27TH AUGUST, 1864.
Part of Ordinance I. So much of Ordinance No. 3 of 1857 as relates to "The Mercantile Law No. 3 of 1857 repealed. Amendment Act, 1856" (Imperial) shall be and the same hereby is repealed, except as to anything done before, or any proceeding pending at, the time of the passing of this Ordinance.
Protection to Per- sons acquiring Title to
seller.
II. No Writ of Fieri Facias or other Writ of Execution and no Writ of Attachment goods before seizure, against the Goods of a Debtor shall prejudice the Title to such Goods acquired by any &c. under writ against Person bona fide and for a valuable consideration before the actual seizure or attachment thereof by virtue of such Writ, provided such Person had not at time when he acquired such Title, Notice that such Writ or any other Writ by virtue of which the goods of such owner might be seized or attached had been delivered to and remained unexecuted in the hands of the Sheriff.
Specific Delivery of goods.
guarantee need not appear by writing.
III. In all Actions and Suits in either Court of Record in this Colony for Breach of contract to deliver specific goods for a price in money on the application of the Plaintiff and by leave of the Judge before whom the cause is tried, the Jury or if the case be tried without a Jury, the Judge shall, if they or he find the Plaintiff entitled to recover, find by their verdict or his decision, as the case may be, what are the goods in respect of the non-delivery of which the Plaintiff is entitled to recover and which remain undelivered; what (if any) is the sum the Plaintiff would have been liable to pay for the delivery thereof; what Damages (if any), the Plaintiff would have sustained if the goods should be delivered under Execution, as hereinafter mentioned and what Damages, if not so delivered; and thereupon if judgment shall be given for the Plaintiff the Court at its discretion, on the application of the Plaintiff shall have power to order execution to issue for the delivery, on payment of such sum, (if any) as shall have been found to be payable by the Plaintiff as aforesaid, of the said goods without giving the Defendant the option of retaining the same upon paying the Damages assessed; and such writ of Execution may be for the delivery of such goods; and if such goods so ordered to be delivered, or any part thereof cannot be found, and unless the Court shall otherwise order the Sheriff or other Officer of such Court of Record shall distrain the Defendant by all his lands and chattels in the Colony till the Defendant deliver such goods, or at the option of the Plaintiff cause to be made of the Defendant's goods the assessed value or damages or a due proportion thereof; provided that the Plaintiff shall either by the same or a separate writ of Execution be entitled to have made of the Defendant's goods the Damages, Costs, and Interest in such action or suit.
Consideration for IV. No special promise to be made by any Person, after the passing of this Ordi- nance to answer for the Debt, Default, or Miscarriage of another Person being in writing, and signed by the party to be charged therewith, or some other Person by him there- unto lawfully authorized shall be deemed invalid to support an action, suit, or other Proceeding to charge the Person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing or by necessary reference from a written document.
Guarantee to or for
a change in the Firm
V. No promise to answer for the Debt, Default, or Miscarriage of another made a Firm to cease upon to a firm consisting of two or more persons, or to a single person trading under the except in special cases. name of a firm, and no promise to answer for the Debt, Default, or Miscarriage of a firm consisting of two or more persons, or of a single person trading under the name of a firin, shall be binding on the person making such promise in respect of anything done or omitted to be done after a change shall have taken place in any one or more of the persons constituting the firm, or in the person trading under the name of a firm, unless the intention of the parties, that such promise shall continue to be binding notwith- standing such change, shall appear either by express stipulation or by necessary im- plication from the nature of the firm or otherwise.
A Surety who dis-
to be entitled to As-
rities held by the Cre- ditor.
VI. Every person who, being surety for the debt or duty of another, or being charges the Liability liable with another for any debt or duty, shall pay such debt or perform such duty, signment of all Secu- shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty, or other security which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty, and such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a proper indemnity, to use the name of the creditor, in any action or other proceeding, at law or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty, and such payment or performance so made
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