April 2, 1898.]
taken subject to an affidavit being made if required. But he submitted that the fact that Sir, William Robinson had left the colony and that Major-General Black was now Acting Governor was a fact of which the Court was cognisant.
Mr. Francis-I object to the question being gone into at all, without previons notice.
The Chief Justice-He is entitled to argue whether he can go into it.
Mr. Francis-I understand he is arguing it on its merits.
The Attorney-General said it would be very inconvenient for the Court to continue to argue an issue of law in an action seeing that since the argument on that issue of law was raised a matter of public notoriety had occurred and a matter of which he submitted the Court should take judicial notice, namely, that the defendant was no longer Governor of the colony. The fact of such an event having occurred since the argument was commenced rendered the further procedure of the action not only useless but clearly undesirable and a pure waste of time. It seemed to him that his Lordship would scarcely desire to hear him further on one of the issues named in the action. It did not follow that because one Governor refused to do a thing another would refuse to do it.
The Chief Justice-You cannot decide a question of this kind off-hand; it will have to be argued properly.
Mr. Francis, referring to some correspondence which had passed, and which the Attorney- General had mentioned, said that correspond- ence between the solicitors or between the parties with reference to any particular mattor could never be a proper substitute for the ordin- ary notice of such matters as would be brought before the court. Such questions might or might not have been within the consideration of the parties. He had not thought it advisable under existing circumstances to make any application for leave to amend. He was waiting to see what steps the Attorney-General, representing Sir William Robinson as the Governor of the colony, proposed to take, whether he proposed to continue the argument or make any application to the Court. If be had had notice of any application to the Court he should have filed a counter notice according to the nature of that application. Therefore if the Attorney-General desired the Court to action which would interfere with the ordinary progress of the case he ought to have given proper notice. That would have given him the opportunity of either answering his affidavit or of filing a counter notice. thought he was entitled to assume, seeing that the Attorney-General had not given notice of any such application, that he was coming there to continue the argument which was adjourned. He also wished to call attention to the fact that the adjournment of these proceedings was entirely the act of the Court. It was in con- sequence of the press of business that the
take
any
argument could not go on the 16th
January,
on
The Chief Justice said the fact of this ques. tion having arisen at all must lie on the shoul- ders of the plaintiffs. The action commenced two years ago or more, and it was only just before Sir William Robinson left the colony that plaintiffs brought it into court.
Mr. Francis said he was simply calling atten- tion to the fact that the case was down for hearing on January 24th and the court could not take it. Continuing, he said the case was against Sir William either in his individual capacity or in his corporate capacity as Gover. nor, and if it were against him in his quasi- corporate capacity as Governor his presence or absence could not make any possible difference. But the point at present was, were plaintiffs entitled to notice of any application which the Attorney-General proposed making, and he submitted that they were.
After a little farther argument, the Chief "Justice and the Puise Judge consulted for a few moments.
The Chief Justice then said they were both agreed with Mr. Francis that the question to be argued was the question of law raised in these issues. They both thought that the point raised by the Attorney-General should not be raised without fair notice being given to the other side, so that the other side might have been prepared to meet it in argument.
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CHINA OVERLAND TRADE REPORT.
The point taken by the Attorney-General was that the suit was nullified and should be dismissed. They thought that that was matter for argument. The Attorney-General was entitled to raise the point, but it should be argued. Therefore they thought that if the Attorney-General wished to insist on that point notice should be given to the other side that the point was to be raised, and it could be | argued out on Tuesday or Wednesday. He thought the Attorney-General should also put evidence before the Court that Sir William Robinson had left the colony or had ceased to be. Governor. That evidence could be given by the production of a proclamation to that effect or by affidavit.
The Attorney-General said he did not know whether his Lordship would allow him to read the correspondence which had taken place between the parties subject to it being placed on affidavit.
The Chief Justice-You must use your own discretion about a thing of that kind.
Mr. Francis-I would rather it was put in by affidavit and that I may have the opportunity of answering it by affidavit.
The Chief Justice-What is the point on the correspondence ?
The Attorney-General-In the correspond ence we said we should take this point.
The Chief Justice What is the use of putting it in now when the Court has ruled there must be regular notice P
After a little further argument the Court adjourned.
on
30th March.
Sir William Robinson having left the colony ceased to be Governor of the colony, each 1st Febuary last, and having side gave notice of motion to amend, the notices being as fol.ow :---
that this Court will be moved by the Attorney On behalf of the defendant:-" Take notice General on behalf of the above-named Sir day of March, 1898, at 10.30 a.m., or as soon William Robinson on Wednesday, the 30th after as counsel can be heard, to give leave to introduce into the answer in this suit, by way of amendment, the fact that from the first day of February, 1898, the defendant, Sir William Robinson, ceased to Governor of this colony, and to stay the further hearing of the arguments on the issues already settled until the question whether the Court could properly grant a mandamus directing the defendant kong to do an act which can only be done by after he has ceased to be Governor of Hong.
further order." the Governor of such colony is decided, or until
On behalf of the plaintiffs:-Take notice that in the event of this honourable Court making any order on the notice of motion filed herein on the 28th inst. on the part of the above named defeudant, this Court will be moved by John Joseph Francis, Q.C., on behalf of the above named plaintiffs, on Wednesday, the 30th day of March, 1898, at 10.30 o'clock a.m., or as soon thereafter as counsel can be heard, for leave to amend the writ of summons and pleadings herein by substituting for the name of the defendant, Sir William Robinson, G.C.M.G., or for any other named defendant, the words Major General Wilsone Black, C.B., the officer ad- ministering the Government of Hongkong,' or the words the, Governor for the time being of the colony of Hongkong' as this Court shall think fit.'
The Attorney-General, in support of his motion, submitted an affidavit filed by Mr. Dennys, the Crown Solicitor, and one filed by Mr. Deacon; the solicitor for the plaintiffs. Continuing, he said that this suit was begun on the 21st of February, 1896. The petition was filed on the 9th of March, 1896. There was no delay on the part of the Governor in replying, the answer being filed on the 24th of March, 1896. More than one year and eight months-during which Sir William Robinson was Governor of the colony-elapsed before, on the 1st of December, 1897, the defendants thought fit to issue a judge's summons to as- certain and determine the issues. The fact of the matter was that when it was known that Sir William Robinson was about to leave the colony, it seemed to strike plaintiffs that difficulties might
249
| arise, and they began to disturb themselves in an action which had been lying asleep for over he might have to address to his Lordship in 20 months. But in order to explain the remarks reference to his motion it would be well to refer briefly to a part of the pleadings in the case. The writ was dated 21st February, 1896, and was between Thomas Howard and Matthew John Denman Stephens and Sir William Robinson. Plaintiffs claimed a writ of mandamus demanding that the defendant should proceed under section 7, Ordinance 16, 1889, sub-section 6, to enquire into and assess the damages suffered by the plaintiffs as the owners of certain land and the godown standing thereon in respect of depreciation in value of such land, defendant having, although requested so to do, refused to proceed under the section in question, and therefore the plaintiffs had no other remedy. This was a claim in which the only remedy was not a money compensation but a writ of mandamus.
The Chief Justice said that before the Attorney-General went further they would like to know from Mr. Francis whether he felt in s position to argue against the making of an order on the motion filed on behalf of the defen- daut. If Mr. Francis felt he could argue that point successfully of course they would let the argument go on. If he did not so feel then they proposed to take both motions together, one being the corollary of the other.
Mr. Francis said that as long as his Lord- ship left him at liberty to argue on both mo tions he could have no possible objection to their being argued or taken together.
The Chief Justice-I think it would be more convenient for the two to be argued together.
The Attorney-General said that what was kind of compensation which would follow after asked for in the pleadings was the ordinary. the Reclamation Works had come in front of plaintiffs' godown. He did not think there
said it would not take into consideration and was any dispute on that question. Certainly at the present time the Government had never fairly and rightly, even if only morally bound, decide as to any damage which might have oc- curred to Mr. Howard's premises in consequence of the Reclamation Works,
Mr. Francis-I submit that the Attorney- General should not be allowed to make a state- ment as to a question of fact which will neces- sitate argument and contradiction on my part.
The Attorney-General-You cannot deny my statement.
Mr. Francis-I can perfectly and thoroughly deny it. What the Government's intentions
are is not the question.
The Attorney-General said he was pointing out that the plaintiffs in their pleadings stated that the Reclamation Works had come within had been some silting caused by the works a certain distance of their place, and that there having come too near. that the defendant, should proceed
The petition required into and investigate the loss and damage "to enquire suffered by the plaintiffs and to award com- pensation," and stated that the “defendant has and to investigate and enquire, and award." refused and still refuses to perform his duties
mandamus should be compelled to enquire into The prayer was that the defendant by writ of and assess damages suffered by the plaintiffs. Before a mandamus was granted the persoc applying for it must have made a specifie demand проп the mandamus was asked for and that person must
person in respect of whom th have refused to comply with such demand, that person having the option of refusing or doing that which was required of him. This difficulty might arise if his learned friend asked the substitution of a new name-that of the Acting Governor-in regard to the writ of mandamus. The Acting Governor might say each Governor had the right to act as he thought fit in the exercise of his discretion, and that his discretion might differ from that of another Governor. There had been no application to the Acting Governor, and he thought it would be rather a hard thing to insert the name of a gentleman without asking "by your leave." when all he had to do with the matter was or anything, that he was discharging the duties which Her Majesty had required him to discharge, that of Acting Governor for a certain period. It would be a very hard thing if he were to find himself suddenly engaged in litigation and
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