The-Hong-Kong-Weekly-Press-1895-08-07 — Page 8

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reason for the separation. Counsel then urged that at the time of the loan the wife was not in wants of fands. In February, 1894, she was paid 8720 by her husband for 24 months' arrears at $30 a mouth and from then up to July she was paid $40 a month. In May, 1894. she said she borrowed the money in respect of which the suit was brought.

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THE HONGKONG WEEKLY PRESS AND

the questions were immaterial he would not

take them down.

The Acting Chief Justice-If the evidence is not cross-examined upon it must be taken as not disputed. That was counsel's opportunity for showing that the evidence was not to be relied upon.

Mr. Robinson-Many counsel would not have The Acting Chief Justico-The woman her-ross-examined upon the point. but would have self stated that there had beau no amount settled. | laft it to the common senso of the Court. The Mr. Robinson-There; again, the facts were Judge might have said, “ Mr. Counsel, the Court I ask has common sense."—Counsel, at considerable inadequately brought before the Court leave to call the people who were in chambers length, argued that the evidence of the wo man, who was very strong minded, was absolutely when the agreement was made, and, if necessary, to take the evidence on commission of Mr. unreliable, and there was no proof whatever that Ackroyd, who was then Acting Chief Justice. she spent the money in necessaries. I submit that after the agreement she ceased to be an agent of necessity.

The Acting Chief Justice pointed out that the woman could not live ou air, and she had to pay away a large portion of the lump sum for her maintenance in the previous months.

Mr. Robinson-The money represented past alimony.

The Acting Puisuo Judge-That money was paid in consequence of the action by the wife.

There Mr. Robinson -No, that is not so. was an action pending and the Judge thought it better to call the parties into chambers, when $720 was agreed upon, and $40 a month was agreed upon in addition.

The Acting Paisne Judge-There would have been no arrangement in chambers if there had been no action. I held that there was no agree-

ment.

Mr. Robinson again asked for au opportunity to call the witnesses who were present when the agreement was made.

The Acting Chief Justice said some of those witnesses could have been called at the trial.

Mr. Robinson said the action was not to be decided upon sentimental grounds. The ques. tion was, upon whom lies the onus ?

T

His Lordship repeatedly reminded counsel that the witnesses were not eross-examined upon these matters, and therefore their evidence held He thought that the real reason why they good. were not cross-examined was not that the defence questioned the amount, but that the defendant did not hold himself liable at all, and conse- quently details were not gone into. If there were subsequ›nt actions the defence could take warning by this one. flis Lordship also pointed out the great danger that might result in cases from the Summary Court being re-heard because the facts were not properly bron:ht out, and said that such a system would an incentive to a witness to commit perjury.

August 7. 1895.

tenance can protect himself from future demands acorning after the date of such settlement. As regards the question whether, by Chinese law or custom, the husband is justified in keep. ing concubines in a different house from that in which the wife resides and passing the most of his time with them, I give no opinion, in the absence of evidence as to the Chinese law. It seems to me that it lies upon the husband who sets up such a right as being in accordance with the Chinese law and custom to give some evi- dence showing his contention is correct.. If auy dispute should arise between the husband and wife as to what amount is an adequate allowance for the wife's maintenance in all the circum- stances there can be no difficulty in referring it by consent either to a Judge or the registrar or au arbitrator appointed by the parties.

The Acting Paisne Judge-I concur in the judgment of the Acting Chief Justice.

OUTRAGE BY CUSTOMS CRUISERS.

SEIZURE IN BRITISH WATERS.

The firing which was heard early on Saturday morning just off Pokfulam turns out to be no- thing less than a very serious case of unautho- rised seizure by Customs cruisers in British

waters. It seems that a Chinese revenue cruiser

and a gig saw a couple of junks, which, it was supposed, contained opium. The Customs' boats` The Acting Chief Justice delivered the folchased the junks and at length blocked their further progress. The boatmen in the junks lowing judgment: This is an application for have to appeal from the judgment in this suit. jumped overboard and swam to the shore. The application is made under sect. 41 of Ordin- Several shots were fired at the men, who, ance 14 of 1873. That Ordinance provides for au however, escaped without injury, and the appeal on questious of fact. Assuming the facts juuks, which were then only fifty yards from to be correctly found, there cau be no doubt that the shore, were then captured and taken The police are making the law is correctly stated as applicable to those to Chung Chau. facts by the learne judge who tried the case in every inquiry into the affair, and the Govern

It remains, therefore, toment has taken the matter up. There have the Summary Court. consider whether the findings of fact were justi- been several similar cases in British waters fied by the evidence of the witnesses at the trial.during the last few months, and it is now Neither side wished for a jury if the Court below,quite time that severe measures were taken to and, therefore, as to findings of fact, the judge resent these attacks by the Chinese Customs. below acted not only as a judge bat also as a jury. This particular case is a most serious one, and it Now upou the evidence before the Summary is quite certain that if an armed police launel Court, were the findings justified by that evi- had come up at the time of the firing the

Among those findings were the follow-

police would have retaliated, captured the dence? ing (1) That the wife was living apart from cruiser and gig, aud charged the occupants with the husband owing to his misconduct alone. (2) attempted murder and piracy. The Government That the allowance of a month was not ade will doubtless take severe action in the matter, quate to support the wife iu a mauner suitable to and warn the Chinese officials of the very serious her station and the husband's means

risks they run in interfering with the trade of of opinion that the evidence justifies those find the colony. ings. But it was urged on the part of the up- Mr. Robinson-I say that the facts were not pellant that the case was not presented at the trial in a manuer so strongly in favour of the properly presented.

The Acting Chief Justice-That is the Eng-defendant as it could be if the case were reheard lish equivalent of saying that the application is before the Fall Court. made for a new trial on the ground that the case was badly put.

The Acting Chief Justice pointed out that the Judge sat as both Judge and jury, and he decided the case on the evidence brought be fore him. He makes cortain findings upon the evidence, and as those findings were made as by a jury they could not be upset uuless counsel could show that the verdict was against the weight of evidence. His Lordship could find no point of law upon which the Acting Puisue Judge was wrong, and the question was whether He the fadings were wrong upon the facts. thought there was adequate ground for those

findings.

Mr. Robinson-Not altogether, because some evidence could not be got. We are willing to pay all the costs of the action up to date.

The Acting Chief Justice-There is an old Roman maxim that there shall be an end to litigation.

Mr. Robinson-If this case goes as it is it will certainly lead to further litigation, and that is why we urge our application now.

The Acting Chief Justice-My own im- pression is that this is eminently a case where the two parties should have an agreement drawn up in writing, and if the husband carried out my suggestion he would make his wife au allowance. There is no doubt that there is likely to be liti. gation from time to time unless the parties draw up an agreement.

Mr. Robinson repeated that there would be multitudinous suits if this case was not re-heard. The Acting Chief Justice-I do not think it will give rise to law suits. If there is a desire on both sides to avoid law sus be could make her an adequate allowance.

·

Mr. Robinson-I do not know what your lordship's ideas of adequacy are, but when the woman brought an action she put her own allowance as $50-Counsel spoke of the sum of $180 which the woman said she paid for the curing of her band.

3 preposterous figure, as a Chinese docter would have attended her for half a dollar a day and chair hire.

The Acting Puisno Judge-No question was asked on that point.

It was

Mr. Phillippo-I perfectly well remember putting several questions, my Lord.

Mr. Robinson said that if the Judge thought

I am

The seized juuks, it appears, were fishing boats and were on their way from Victoria to Aberdeen, with opium on board valued at $2,800.

HONGKONG SANITÁKY BOARD,

INSANITARY WELLS.

Whose fault is that ? The defendant is represented by a solicitor aud counsel, and it is Lot even suggested that the

A meeting of the Sanitary Board was held on evidence, which it is stated might be forth-

There were also coming on a rehearing, might not have been Thursday afternoon, Hon. F. A. Cooper (Director given at the original trial. In those cir- of Public Works) presiding.

to be heard present-Dr. Lowson (Acting Colonial Sur- cumstances why is this caso

well known maxim Ingeon), Hon. Commander W. C. H. Hastings again? There is a terest reipublice ut vit finis litium. When Acting Captain Superintendent of Police), Dr. a case bas once been fairly tried it is not in the Westcott (Acting Medical Officer of Health), public interest that the litigants should have to Mr. N. J. Ede, and Mr. II. McCallum (Secretary.) fight their battle over again unless some urgent The sum in-

The ACTING SUPERINTENDENT OF POLICE Decessity exists for such a course, volved in this action is not a large one, there is In moving the motion standing in my name nothing wrong with the law involved in the I do not think there is any necessity for me to The list of the eighteen wells has decision, and there is no special reason why the go over the ground which was covered at the indulgence of the Court should be appealed to as lust meeting.

If other similar actions are been circulated to members, and I now beg to it was in this case, brought, which the counsel for the appellant move-That whereas it has been made to said he apprehended, it will be quite open to appear to the Sanitary Board that certain wells the defendant to make that more elaborate hereafter named are in an insanitary condition, defence which he says he could make in this and are likely to prove injurious to health, the case if a rebearing should be granted. If once said wells named hereafter are hereby ordered the principle is admitted that because a case to be closed within the next three days." Was not so well fought on the original trial as it might have been therefore it is to be tried again, it is probable numerous applications

THE INTRODUCTION OF WATER CLOSETS. for rehearing of cases in the Summary Court

Mr. EDE, in submitting his motion, said--I would be made. That Court is intended to provide speedy justice. at small expens", and should like first to refer for a moment to a unless it can be shown that the Judge's law was report on this subject made by a special com- wrong or that his Andings of fact were not mittee of three members of the Sanitary Board. justified by the evidence, there is no reason why Tho report is not dated, bat I believe it was made the case should be roheard before the Fall somewhere about the beginning of March of this The opinion of a number of persons was Court, untess in very exceptional circum-year stances. In this case I must refuse to grant taken by the committee, and those persons were leave to appeal, in the absencs of any sufficient architects, engineers, and house owners, and the The defendant by making a proper opinion generally was clearly and unmistakably reason. deed of arrangement with his wife and paying against the system except under very special her regularly a suitable sam for her main-circumstances. On the 14th March, 1895, I see

The ACTING COLONIAL SURGEON-I have much pleasure in seconding the motion.

Carried.