April 1, 1899.j
by Mr. Hastings, for the administrator (Mr. Bruce Shepherd.)
His Lordsbip gave judgment as follows:- In this case the parties interested in the sub- ject matter of the suit, with a view to putting an end to a protracted and expensive litigation, came to an arrangement for the settlement of all disputes as to the distribution of the estate of Tang Lok, deceased, and for the division of his estate amongst themselves, after the pay. | ment of specified sums of money to certain other persons. This arrangement was embodied in an agreement in writing, bearing date the 10th January, 1896. One of the items of this agreement was that; on the ultimate division of the estate, the infant plaintiff's share of it was to be "assigned to the said Tang Chang Shi, upon trust for the said Tang Yang Man" This agreement was brought before the Court for its sauction, and on the 11th January, 1896, the Court made an order by which it"approved of the agreement and ordered that the suit should be settled and the division of the estate of Tang Lok, deceased, finally determined under the order and direction of the Court according to the terms of the agreement." The agree- ment was then recited îu fall in the order.
The case came before the Court on further consideration on the 11th August, 1897, but the point as to the disposition of the plaintiff's share of the estate was not dealt with in the order then made.
The defendant Bruce Shepherd now moves the Court for an order to vary the order of the 11th January, 1896, in so far as it directs the assignment in trust for the plaintiff of his share in the estate of Tang Lok and that in lieu thereof the said defendant may be directed to retain the share of the plaintiff in the estate until the plaintiff attains the age of 21 years and, on his attaining that age, to assign and pay over his share to the plaintiff himself. The motion is rested on the grounds that, in respect of the point in which it is impeached, the order of the 11th January, 1896. was or might be prejudicial to, and at any rate was an invasion of the rights of, the defendant Bruce Shepherd, as administrator of the estate of Tang Lok.
It is alsó alleged that when the order was made the defendant Bruce Shepherd was absent from the colony and that he never gave any consent to the order or instructions to any une to consent to it on his behalf, and further, that, shortly before the case came on on further consideration, he became aware of the terms of
the order and at once objected to it on the point on which it is now impeached and informed his solicitors and the plaintiff and his next friend of his objection. As has been already said, however, the point was not dealt with on fur- ther consideration. But with regard to these allegations I may say at once that *it appears to me,
the facts placed before me, that the solicitors of the de- fendant Bruce Shepherd had full authority to represent him in the suit, that they were cognizant of the terms of the agreement and order, and that the defendant must be held to be bound by the order.
At the hearing the motion was supported by counsel for the defendant Tang Kam Shi and for Tang Ho Sbi, a party having leave to attend the proceedings, and it was opposed by counsel for the plaintiff.
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In these circumstances two questions arise for the consideration of the Court, namely, 1st Has the Court power to make the order asked for, and 2nd If the Court has such power, is it right and proper that that power should be exercised and the required order be made?
With regard to the first of these questions I have looked into the authorities cited by Mr. Robinson on behalf of the defendant Bruce Shepherd and by Mr. Francis on behalf of the plaintiff. If it were necessary to decide the point, I should be prepared to hold that the Court has, in the exercise of its or- dinary jurisdiction, power to rehear, and, on sufficient cause shown, to vary, any judgment or order pronounced or made by it. But it is in my opinion unnecessary to search for an answer to the first of the two questions in these or other authorities of the like kind, because I think the point is concluded by ex press enactment governing the procedure of the Court. By section 68 of the Code of Civil Procedure the Court is empowered, on such terms as may seem just, to review any judgment
CHINA OVERLAND TRADE REPORT.
| or to order a re-hearing or new trial, with or without a stay of proceedings. It is true that we are here dealing with an "order" of the Court, and that there is in the Code no defini tion of the word “judgment" which makes it inclusive of "*. orders." But I have no doubt that the word judgment as used in this section is properly applicable to an order of the kind now under consideration, in which the real questions at issue the suit were considered and determined. la Ex parte Moore, In re Faithfull, 14 Q. B. D. at p. 632, Lord Selborne, L. C., said :-"To constitute an order a final judgment nothing more is necessary than that there should be a proper litis contestatio, and a final adjudication between the parties to it on the merits."
I am further of opinion that the application to vary the order of the 11th January, 1896, in the manner set forth in the notice of motion is an "application to review" within the meaning of the section.
It will be observed that under the above-men- tioned enactment an application to review a judgment may be made as of right on notice of motion filed not later than fourteen days after the decision. After the expiration of that time an application for review is not to be admitted except by special leave of the Court, on such terms as may seem just. In the present case the Court gave leave to the defendant to give notice of motion for a particular day, and I think this may be taken to be equivalent to admitting the application to review by special leave of the Court,
I think, therefore, that the Court has power to make the order now asked for by way of review of the order of the 11th January, 1896.
It is next to be considered whether a proper case has been made ont in support of the motion so as to justify the Court in exercising its power to make the order asked for.
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And if such an order were made and carried into effect, it may well be doubted whether it would afford to the administrator a protection against proceedings by the plaintiff if, on his coming of age, he found his shares lost or diminished in value by reason of the transfer having been made. On this head reference may be made to the fact mentioned in the course of the argu- ment that the order of the 11th January, 1896, in approving of the assignment of the plaintiff's share of the estate, contains no provision for the giving of security by the assignee for its safe custody and management. Further, the order is silent with respect to the contingency of the plaintiff or the assignee dying during his minority, and it may well be conceived that, on the occurrence of such an event, consider- able inconvenience might be caused by the want of such a provision.
Then there is the question of the relative fitness of the two parties primarily concerned. in this matter to have the charge of the plaintiff's share until he is entitled to claim and receive it for himself. On the one hand there is the person lawfully entitled to retain the charge of the share, that person being at the same time an experienced officer connected with this Court, who is thoroughly conversant with the management of all kinds of property in this colony, and in whose capacity and integrity the Court has entire confidence." On the other hand there is a lady whose only title to consideration rests in the facts that she has been designated by agreement of the parties as the person who should have the charge of the plaintiff's share and that she is the plaintiff's mother. But with regard to the first of these points the other parties to the agreement now desire to undo their act in designating her as trustee for her son, and with regard to the second point it does not follow that because she is the plaintiff's mother she is qualified to It has been pointed out that so far as the have the care and management of his matter under consideration is concerned the share, ladeed, in bis affldavit of the 16th order of the 11th January, 1896, seems to have February, 1899, the defendant Bruce Shop. been made without the attention of the parties herd says that he has known Tang Chang Shi or of the Court being drawn to its real nature for several years, and that she is not in his and effect. The Court took care to ascertain opinion a fit and proper person to have the that the arrangement proposed by the agree-control and management of the plaintiff's share ment was in substance for the benefit of the of the estate. This statement was not oon- plaintiff, but it does not appear to have special-tradicted by evidence on the other side. As ly considered the question of how the plaintiff's between these two persons, then, I can have no interest under the arrangement was to be dealt hesitation in holding that it will be better for with. Now, if the defendant Bruce Shepherd the plantiff's interests that his share should or any party to the agreement were asking the
remain in the hands of the defendant Bruce Court to vary the order of the 11th January, Shepherd than that it should be transferred to 1896, in any essential particular, as, for instance, his mother. in respect of the distribution of the estate, I should have no hesitation in refusing the appli cation, at least in the absence of consent by all parties, on the ground that the order was founded on the agreement and that it is not competent for the Court to make a new agree- ment for the parties. But I am unable to re- gard the provision for the assignment in trust of the plaintiff's share as of the essence of the agreement, or in other words to believe that it formed a material part of the consideration for the making of the agreement, and I think therefore that the Court has a discretion as to whether it will order this provision to be varied. It this provision is to remain unchang. ed and is to be carried into effect, it plainly involves a direction to the defendant Bruce Shepherd to transfer the plaintiff's share to Tang Chang Shi in trust for him. Indeed the proposed minutes of the order on further consideration of the 11th August, 1897, con. tained a direction to this effect. It was argued on behalf of the defendant Bruce Shepherd that the Court had no power to compel an adminis- trator to make such a transfer of a part of the estate vested in him to a person not entitled in law to accept the transfer and therefore not em- powered to give him a valid discharge, and fur- ther that, even if the Court had such a power, it would not exercise it when the result might be to expose him to legal proceedings at the ins- tance of the plaintiff in the event of the share so transferred being wasted. I am bound to say that on both these points I regard this contention as well founded. It is clear that an adminis- trator would have no power of his own motion to make such a transfer of property vested in him in right of his office, and I am of opinion that the Court would be acting ultra vires if it were to order him, in spite 'too of his protest, to make such a transfer."
On the whole matter I come to the conclusion that, so far as the question under consideration is concerned, the agreement and order now un- der review were apparently made without due attention being given to their nature and effect, and that it is for the benefit of the plaintiff that the arrangement thereby provided for the control and management of his share during his minority should be changed. I accordingly or-
der that the order in this suit made on the 11th
January, 1896, be varied in so far as it directs that the share of the plaintiff in the estate of Tang Lok, deceased, be assigned to Tang Chang Shi apon trust for the plaintiff, and that in lieu thereof the defendant Bruce Shepherd be directed to retain the said share until the plaintiff attains the age of 21 years, and on his attaining that age to assign and pay over the share to him.
Any necessary alterations consequential upon this order will also be made in the order under review,
If all the parties consent to such an order, I will direct that the costs of all parties upon this motion be paid out of the estate; if there is no such consent, I will hear counsel upon the question of costs.
H.M.S. Linnet arrived at Shanghai on the 18th March from up-river. It is reported that she is to take Sir Claude MacDonald to Nanking for the opening of the port.
The Japanese Foreign Office is in receipt of a telegram from the Japanese Consal at Townsville, under date of March 18th, stating that on the 4th inst. a terrifio gale swept the northern coast of Queensland and at least 150 Japanese, engaged in pearl fishing, war drowned.
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