1948-09-14 — Page 5

S.M. Churn Loses Appeal Against Tenancy Tribunal

An appeal brought by Samuel Macomber Churn, of 156 Austin Road, against the decision of a Tenancy Tribunal which refused to grant an eviction order against the To Sau Girls' School, of 102 Argyle Street on the ground of non-payment of rent, was refused by Mr Justice Gould (Acting Puisne Judge) in the Appeal Court this morning when he delivered a written judgment.

The lion Leo d'Almada, KC, in- [iminediately the rent in in arrears structed by Mr F. 1. Zimmers ap- peared for the appellant while res- pondents were represented by Mr A. J. Clifford, instructed by Mr Peter M. Sin.

£2

Giving judgment, his Lordship said:

This is

appeal against An refusal by a Tenancy Tribunal to evict the respondent, the To Snu Girls' School, from premises described л No. 102 Argyle St., Kowloon. Tho application was originally brought before the

residence

Tri-

for over 30 days and that the juris- diction remains, even though the breach of the tenant's obligation is eured before action. The same nega- ment was put forward in Bird v.

Pildage but was rejected by the Court in the following words:-

"We are unable to accede

to

为

argument. I requires, ** 1 seems to us, the word "punctually so. be read into the language of the paragrapit belure the word "pald."

now

Counsel for the appellant submits that the wording "in arrearu for more than 30 days" has a similar bunal on the ground that the ap-effect to the insertion of the

word pellant required the premises for a "punctually" in the English provi- for himself and his sion. "Punctually" is n provision as family but when I came on

foto time just as "within 30 days" 15. hearing the applicant asked for This is an attractive argument but leave to add the further ground thai

ore it is in my view defective. the rent was in arrears

for more than 30 days. This amendment was subsequently allowed bul It in common greund that before it was allowed a tender of the amount the for rent was made by the sollettur for the respondent.

TRIBUNAL'S DECISION

The

to Tribunal refused

Hiving as its reasons:

Tribunal

or

In Bird v. Hildage, the Court of Appeal did not pursue the matter of the effect of inserting the word further. it went "punctually" any on to suggest an alternative form of wording which was a complete re- casting of the section. But if the

In fact

fact been word "punctually had Evict

inserted.

have would repugnancy arisen in cases of tender unless soine words such an "which was" "which became were read into the provision before the words "lawfully. due." If the words to be read Into are "which 19" (and that passage are those are the words which the Court think of Appeal obylously and, I with respect rightly,

rend

Into it; results Immediately repugnancy there is tender: for the Court of Appeal has held that by reason of the tender the rent is not lawfully due (which would deprive the pro- vision as to punctual payment of any effect.

(a) Section 10(1) The considern that Greater hardship would be on opponent than on the The applicant (b) Section 18(e) Tribunal is satisfied that there was never any unwillingness on the op- ponent's part to pay the rent.

of

The present appeal is brought only in respect of the second of thesc Andings

the on

ground the exercise that it importa

which discretion

the Tri- burnt (on

1hc appellant's submission) did not possers. Apart from the matter of the existence or In the otherwise of a discretion Tribunal,

behalf It was argueil on

of the respondent that its decision

in conjunction with the

words

PRESENT TENSE Coming to the consideration of evidence the Hongkong provision, I And it is Andings of fact by the

Iny not necessary to read unal that tender had been made into the sub-acction as the present tease has actually been used. The phrasing la, "is in arrears-not, as

from time to time and at other times hd

been waived, and was not therefore the exercke of a dis-it could easily have been, is or cretion at all.

however, of the adnilt In view, ted tender of all arrears made In the presence of the Tribunal be- fore leave was given to add ground under section 18(c) to the application. It is not necessary to to Info this argument if it is good here on ascertainment and there is Law that П

valid tender of

made after it has falles more

rent

than

"has al has been in arrears," or

The In arrears." any time fllen meaning of the phrase

"rent is it m Vol. arrear" is given in Hailsham

477 (quoting 3 131. Com. s. 7) 15 p.

rent which is ascertained, due.

turns Nothing unpaid."

nad

no

lawfully difference between due" and "duo". Therefore the Hongkong subsection 30 days in arreur, but before any meaning of the application is lodged, will deprive is merely "whose rent

..is law. tho Tribunal of jurisdiction to 01-

fully due and unpaid for more than The perfectly natural der eviction on that ground. In the

30 days." present case, for the purpose of any interpretation of this is that at the date of the application, at which, question of date, the amendment of

in the words used in Bird v. Hildage the lion to include the extra the rights of the parties crystal- deemed equivalent to an originallised", the rent must be in arrears Le lawfully due and unpold and that it must have been so for up- wards of 30 days. The concluding words of the subsection merely ro to extent, allowing some latitude the tenant which is not given by the English provision, and no con-

ground under section 18(c) must be

appilention on that ground.

THE HONGKONG TELEGRAPH, TUESDAY, SEPTEMBER 14, 1948.

Held After Narcotics Raid

Dancer Vickie Evans (left), 25, and Movie Actress Lila Leeds (right) are pictured (top) in gaol at Hollywood after their arrest in a narcotics raid with Actor Robert Mitchum (left) and Robin Ford (right), real estate agent,

also shown in gaol (bottom)-AI Picture.

Ex-Italian

Colonies

Talks Adjourned

BARREN

DISCUSSION

Paris. Sept. 13.—The first session of the four- power conference on the future of the Italian colonies adjourned tonight after a barren discussion on whe- ther the meeting was really one of the Council of Foreign Ministers or their deputies.

M. Andre Vyshinsky (Russia) agreed to regard it.ns a meeting of the "representatives" of the four powers in question. It was also appar ntly decided that no com- munique or statement should be made to the press until after the last meeting.

The Western lelegates maintained that it was a Council of Foreign Minister and stated that they held Governments 10 Dower from their take decisions.

M. Vyshinsky sald that he was authorised to participate in the discussion but was not authorised to take decisions. He said that the

COWIE CASE

RESUMES

(Continued from Page 1)

composition

British and Americans, by sending against the struction could properly be given

representatives and not Foreign Board. Ministers, had violated the peace trenty.

&

The

Italian

of the

RED DEAN'S

ADVICE TO BRITONS

Bucharest, Sept. 18.-Britain should tighten her belt, work harder and restore Empire free trado if she wants economic re- vival, according to Dr Hewlett Johnston, Dean of Canterbury.

the

Pro-

the

Dr Johnston today told Rumanian and foreign Journal'ats at a press conference' here sponsored by Soviet-Rumanian Society for moting Cu'tural Relations with Soviet Union that ho agninst Britain taking money from the United States "the Empire weather the economic storm on its

own

If allowed to do so.”

can

He is opposed to American and British intervention in Greeco.

-

He is in favour of a tree change of goods between Britain on the one hand and Soviet Russia and the popular Democracies the other,

on

be

MUST CHANGE POLICY polley "Britain's

must changed," he said, "If a democratle peace be established in Germany and it cordial relations with the Soviet Union were encouraged, Great Britain would have no need to maintain great armies abroad and there would be no shortage of man- power in Britain. The Dritish Em- pire would be able to face the world and the Pound Sterling could face the collar."

Dr Johnston, who was recently refused a visa to visit the U.S. sald that in a previous trip to America three detectives had been on per- manent guard in front of his hotel room. "I don't know if they were there to guard the U.S. from myself or myself from the U.S.," he said.— Associated Press,

Reds Cut Main Railway Says

Report

Peiping, Sept. 14.—An uncon- firmed Chinese press report said the Reds cut the Manchurian section of the Peiping-Mukden railroad just north of the Great Wall.

for an O-

It also alleged that a large number of Iteds have gathered sult on Suichung, railtown 40 miles Inside Manchuria.

As a result, of these developments. traffic on the Manchurian section of the railroad now is running only between the Nationalist bore of Chinhalen and Histncheng, a dis- tance of only 40 miles, the report

Red in the Felping- Tso-yl's

aid.

Nationalist planes attacked convoys West of Pelping Kupeikou section of the Jehol ne, General Fu headquarters announced.

It said heavy casualties were in- fleted and much damage was done

to Red food supplies (Kupeikou is 70 miles nor heast of Felping),

said Headquarters

Nationalist ground forces are sweeping the Reds further into the hills west of Hunin, railtown 25 miles northeast Peiping-Associated Press.

Demonstrators

Want War

(Continued from Page 1)

p

of

OPPOSING VIEWPOINTS The opposing points of view then are these. The appellant says that if a tenant allows his rent to fall 30 days in arrear, no tender

the on thirty-first

or any subsequent day

to them which would negative the will avall him; he landlord is en- titled to obtain his eviction.

plain meaning of "is in arrears". The

A Madras dispatch said the Indlan The word "" In that phrase is respondent says that a tenant even

Continuing. Mr Bernacchi fatal to appellant's argument.

caid forces moving in from Bezwida had though upwards of 30 days in ar-

that from the very carliest View therefore that I take the view

days advanced 40 miles and were pos- roars with his rent is protected from the principles underlying

The next meeting would be hold after Cowie's dismissal, it was made sibly within approximately 60 miles the de- eviction if he malces a valid tender clsion in Bird v. Hildage are equal-

tomorrow morning and will considerperfectly clear to the representative of the capital. the reports of the deputies. at any time before an application is ly applicable to applications under

of the Crown that the plaintif In the northwest sector, in the lodged

for his eviction.

his the Landlord

that dismissal; of

Indinn areo,

troops section 18(e)

Je Aurangabd Counsel for the respondent refles

conference opened in the contested

would . raise the Tenant

afternoon I hold that

question in the French Foreign irregularity; and that he intended portant railroad Junction.

of were within sight of Jalan, an im- upon the ense of Alrd v. Hild ge

has not been made the where face, 1847

time

Once under the chairmanship of M. Tribunal Robert Schuman,

to proceed to claim for damages. essence of the contract, a

French Foreign Minister. has no jurisdiction to make an or-

"1.submit it is indeed against the der that subsection. where, by ten- that case tender was followed

idea of the Crown, as the fountain 3son of full and valid tender made payment Into Cour a proceeding before the application for eviction

of justice, that he should first have which is not provided for in the

got his writ of certiorari and then has been lodged, one of the cle-

Fifty prominent Moslems in New Hongkong Tenancy Tribunal rules ments

made statementa pledging catered a claim for damages. Your Delhi of being "In arrears" The decision in Bird v. Hidge. missing the rent is no longer law-

Lordship has the power to allow their support to the Indian govern for n it is relevant to the presen! fully due. The appeal is conscquent-

this plea under the circumstances, ment in the campaign and calling cose, was based on the wording

namely,

it is not a plea to ask your the fight not a communal struggle ly refused with costs to the respon-

Lordship the section of the English statute dent fixed at $250.

to declare the

decision but a political one against the last corresponding to section 18 (c)

looked of the Board of Inquiry should be reactionary forces on Indian soll. the Landlord & Tenant Ordinance,

reversed, but inercly the case of an 1047.

Schedule 1 of the Rent and

affirmative answer to a prima facie cuse of estoppel where we cease to

(1947) 2 AER. 7 in which under was made a few days before the action was entered in Court. In

cf

of

Mortgage Interest Restrictiona (Amendment) Act, 1033 confers jurisdiction upon a Court to make or give an order or judgment for re- covery of possession or for the eject-

Sailor Breaks Crockery, Knocks

the

WAR OR PEACE? As M. Vyshinsky arrived at the French Foreign Omce to attend the meeling, a reporter osked him whether there is going to be "war or peace."

Arst

then answered:

1

Extra precautions were taken in New Delhi

to prevent outbreaks. Armed police were placed in all suspicious sections of the city with shoot to kill orders.

GUARDS SURRENDER Hyderabad Army guards stationed

on

M. Vyshinsky astonished "Peace."

The other delegates to the meet- ing, besides M. Schuman ond M.

Delhi surrendered their arms Vyshinsky, were Mr Hector McNell. ertopped and can claim that the round the Nizam's palaco in Now Minister of State (for Britain), and Plaintiff is not guilty of miscon- Monday night after. Indian military Mr Lewis Douglas,

na found by the Board of In-police invaded the grounds. duct, Ambassador to Britain.

quiry. Counsel submitted that the

The palace is used for the The four delegations went into the Court should allow issue of breaches «idence of the Nizam's representa- so-called "Parrots Room" where the the trial of the present action.

of natural Justico to be rated in tives here. been paid."The Court of Appeul That he had had some drinks for conference was held without held that these words applied as al pleasure and that he did not remem-concrete idea how the discussion was In reply, Mr Lonsdale declared the date of commencement of theber what he had done was the plea to proceed,

ment of tenant if"any rent w: Down fully due from the tenant hog not

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in several of Bombay. Omcinis explained the

move was mado in order to proceedings for electment. It held of Leading Seaman James Metcalf, The situation te that unless the the authorities that breaches of

summon home guards and did not that no rent was lawfully 24, of HMS Sussex, when he ap- representatives of the four big natural justice were supportable In

mean air raids were in the offing.. due at the date because it could not peared before Mr Hin-shing Lo at powers can ogrce on a joint plan for an action where an estoppel was

The move caino as, rumours swept have been recovered by process of Central Court this morning charged the African territories of Italy by Bernacchi's arguments, he submit-owned warplanes based in Pakistan raised to rebut an estoppel. Mr Bombay, bazaars that Hyderabad- law. The only two avaliable proces with causing malicious damago and Wednesday, the problem must, under ted, would lead to an iniquitous re- ses being distress and judgment, the assa

assaulting Al former was barred by tender and

the terms of the Italian peace treats, sult which it would be dilleult to might rald Bombay. go before the United Nations General Imagine.

Despito announced evacuation the latter by tender and payment

He denied that becauseplans, approximately 200 British Prosecuting, Inspector H. Brown-Assembly in Paris. into Court. No rent being lawfully rigg said that defendant, appearing

Cowlo WO.s refused the Cross- The deputies of the Foreign Mini-

Commonwealth nationals and examination of certain witnesses restaurant at negotiations to reach an agreement constituted broach of natural the Fleet Club at 11:45 p.m. yester on Italy's prewar colonies Reuter. If the Court

justice. Counsel also refuted Mr of Appent would day. For some unknown reason, he have come to the same decision had ran tato the kitchen and chased after

Bernacchi's submissoin that a plea It been considering the wording of the head boy.

of natural justice was an efirmative Again, for an un-

answer to a nien of res judicata,-* section 18 (e) of the Landlord & known reason, he picked up some Tenant Ordinance, 1947 instead of crockery, which was the joint pro- the corresponding English provision valued at $113.80, and broke them. of all Naval, ratinga and perty. that euso is conclusive against appellant in the present

circum

About this time Albert E. Jones, stances. Section 18 (6)

(c) giver juris- who happened to be in the vicinity. . Manila, Sept. 14.-Hongkong-m diction to a Tribunal to evict--a was pushed down by the defendant rubber shoes reportedly uro

due, the Court has no jurisdiction | to be under the influence of alcohol. sters have failed in 11 months of before the Board of Inquiry that Americans remained in Hyderabad.

to make an eviction order.

TRIBUNAL'S JURISDICTION

tho

went to the ratings'

examination of his person revealed

RUBBER SHOE

It

DUMPING

tenant whose rent any port there- and received injuries to his right being dumped in the Philippines of, insofar as the same accrued duo elbow for which he was inter treated violation of the anti-dumping ufter the 1st October, 1945, is in

in in 1IMS Tomar.. Arrears for more than 30 days." The

Defendant was arrested, and an and to the prejudice of local rubb

alio manufacturers. ::important words are "whose rent ..

was reliably oner

·roporied: that ́ Is in arrears for more than 30 days that he was not intoxicated at all. pollee on Saturday caught in tr Counsel for the appellant contends Defendant, was accordingly charged. leaving South: If rbour that theko words,, differing Defendant pleaded guilty to both cargo of rubber shoes for th substantially in form from the charges.

which allegedly was manifested English provision, creato

He was fined $75 and ordered to shoes for women, Women's rul Jurisdiction In

Tribunal pay compensation to the restaurant.shoes are not banned, United Pr

Lbo

with

British officials said about bad been evacuated by air Madras and some others were-be-

loved to have left by train.

Th American embassy said most of the Americans were missionaries and chose to remain.

The Bombay-Hyderabad train, the only rail connection between the dominion and the slate, wake Euspended on Monday--Associated Press,

BOMB FOUND ON HILLSIDE

A largo aircraft bomb has been 9 discovered on the hilalda over-

AUTHORISED ERP

SPENDINGS

३.

pur

Now York, Sept. 13.John Mc-

13. The Washington, Sept. Kee, a Wall Street lawyer who suc-Economie Co-operation Administra- Cessfully concealed his Negro torf today authorised British parentage for 40 years before re-chases under the Marshall Plan yealing It to claim $300,000 left by amounting to $33,400.000, his grandfather, died - almost pen-

It was part of the biggest dally Hist niless.

His will, fled for probate yestar- European. Recovery day, showed that McKee, who died Headquarters here.......... on August 4, left "less than $500, The total of the day's purchases In cash, Jowellery and clothing and no real estate)".

་

McKee had been accepted as white by friends and business as Loclates.

He established that he was the. d looking the premises of the Kowloon wealthy negro's grandson, but the Docka. An official of the Royal Orphana Court did not rule that ho Army Ordnance Corps is now un was entitled to the fortune under n the scene determining how to dia- | the terms of his grandfather's, will.

posa

of the misalic.

-Reuter.

of authorlaphone ivot Isan **

hy the

Programme

was $47,607,139, bringing the amount et money so far expended on Mar- shalt Ald to $1,409,201,607.-

feature of the day's authorisa Lons. was the approval of the first ourchaze under the Marshall Plan In Argentina$300,080 worth of hides for the German Bizone....

Bizonia's total authorisations for the day amounted to 80,210,000 for waph rags, wood pulp and ocean freight.-Router.

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