"
144
Ordinance" The Assessor may at any time make an interim valuation of any tenement." So that as the floors were occupied he could proceed to sssess their annual rentals and collect his rates. I shall refer to this point later on. I will now turn to the second ground of appeal, and the question there is briefly-Does a lift
I come under the heading of machinery ?
THE HONGKONG WEFKLY PRESS AND
that any reduction of the rent was going to be made or claimed on account of these deficiencies, I do not think that the assessor would have been justified in taking them into consideration. The question now remains, what is to be the assessment? Evidence was given as to the probable monthly rentals of the premises with- out the lifts by Mr. Shelton Hooper and Mr. Turner. The former estimated it at $86, and the latter at $930. I think that under the cir cumstances, and considering that it is only an estimate, I ought to take the higher figure. Mr. Turner's estimate is as follows:-
First floor and part of basement Second floor and part of basement. Half of the 3rd floor.. Do
sub-section previously referred to there occur these words, "Such
rateable value shall not include the value of any machinery upon or in the tenement." Now upon these premises there are two lifts worked by electricity, and it is admitted by the respon- dent that the electric motor which works the lifts is included in the ordinary meaning of the word machinery, but he contends that these lifts and their necessary accessories are not machine- ry within the meaning of the Ordinance, aud that the Ordinance only refers to what I may call trade or manufacturing machinery. In support of his contention he refers to the first Ordinance on the subject, viz., Ordinance 2 of 1865 (Police and Lighting Rates Ordinance) Section 6, which is to the following effect :-“In every valuation to be made ander the provisions of this Ordinance the person so appointed to make such valuation as aforesaid shall cause every tenement to be separately valued, and such valua- tion shall be made upon an estimate of the gross annual rent at which such tenement might rea- sonably be expected to let from year to year. The value of a tenement so estimated shall not include the value of any machinery contained therein." This Ordinance is not in force at present, but its provisions as to machinery are practically reproduced in the existing Ordinance of 1888. The respondent argued that there were no lifts in 1863 and so that Ordinance could not possibly have referred to them, and that
●ven in 1888 there were no lifts in the Colony (though I believe two were in course of con- struction and lifts were certainly in use in other parts of the world), and so the word "machinery' in. 1888 could not have a more extended meaning than in 1863. On behalf of the appellants it was contended that lifts were included in the word" machinery" as used in the Ordinance, aud that in that case they were not rateable. 1 have considered this matter carefully, as it seems to open up a wide question, and I am of opinion that lifts are included in the word “ machinery as used in the Ordinance. Although in 1863 there were no lifts, yet the word “machinery is not limited in any way, and must have been intended to include all the machinery there was at the time in the Colony. Am I then to conclude that the Legislature in 1888 was of opinion that the world had stood still for twenty-five years and was ignorant of the fact that great strides had been made in science and mechanics, and that great improvements had been made in machinery and that numerous novelties had been introduced ?
Am I to sup- pose that when the Legislature uses a general word like "machinery," it only means machinery of a certain class? I cannot do so, and I can only say that if the word is to have a limited meaning it is a pity that it was not so defined. I therefore hold that lifts of this description are-not reteable, and that being so I, in accord- ance with my decision in the Gas Company's case in 1890, "hold that profits also are not rate- able. By profits I mean the enhanced rental that would accrue from the existence of such lifts. I need not therefore refer to the cases quoted on behalf of the appelant in sup- port of this contention. The correct way of assessing this property is to take the proba- ble annual rental supposing that the lifts did not exist. It is unfortunate in this case that the only evidence before me as to what this rental would probably be is evidence given on behalf of the appellants. I do not suggest at all that such evidence is untrustworthy, but it must be admitted that it would be more
་་
$1
satisfactory to bave evidence from the other side as well. However, I must do the best I can with what I have got. An- other point was raised by the appellauts, that some further deductions ought to be made even in the case of the occupied portions of the building, inasmuch as on July 30, 1899, water had not been laid on, and the lavatories could not be used, and some portion of the base. ment was inaccessible; but seeing that the teuants went in with full knowledge of these defects, and that there was no evidence before me
Fourth floor
From
this
.........
$400 300 65 65 100
$930
must be deducted, as I have already shewn, $155, being the estimated monthly rentals of the fourth floor and half the third, leaving a monthly rental of $765 or an annual rental of $9,180, and that is what 1 hold to be the proper anunal rental in this particular case. There will be costs for the appellants.
Mr. Hastings-With regard to the question of costs, my Lord, as your Lordship sees this is au appeal and there is no amount fixed-
His Lordship-What did you do in the pre- vious case? Your appell ints got costs in the previous case.
Mr. Hastings-I do not know, my Lord. His Lordship-You had better see and make application
Mr. Hastings-Well, my Lord, I would ask your Lordship, seeing this case has raised oue or two novel points-
His Lordship-That is why I have taken the trouble to write out the judgment.
Mr. Hastings I would ask your Lordship to give costs on the higher scale.
His Lordship Well, I think, Mr. Bowley, they are entitled to it. I have knocked off nearly $8,000.
Mr. Bowley-I do not think I can object to it.
IN BANKRUPTCY JURISDICTION, BEFORE HIS HONOUR W. MEIGH GOOD- MAN, (Acting CHIEF JUSTICE).
APPLICATION TO ANNUL AN ADJUDICATION-
RE LAM TAN CHIN.
An application was made on behalf of Lam Tan Chin, alias Lam Wing Kwai, of 17, Hollywood Road, clerk and interpreter, to annul an adjudication.
Mr. Reece said he understood Mr. Shepherd appeared in person. This was an application of the bankrupt, and the only parties to appear were the bankrupt and the trustee representing the creditors. This was not an objection he wished to insist upon, but he thought he must raise it, he thought that was the proper practice.
His Lordship asked for authorities on the point, which r. Reece was unable at the time to produce, and the case was proceeded with.
Mr. Reece said this was an application under section 29 of the Bankruptcy Ordinance to aunul an adjudication, and for an order for the pro- ceads of the sale of the property of the bankrupt to be handed over to the debtor or his solicitor. The date of the adjudication was July 15th. 1899. The proceedings commenced as long ago as 20th April, 1893. The petition was filed on 20th April, 1893, and he sought to set aside the the order of adjudication on the ground that the whole proceedings were defective from beginning to end.
This point was argued at some length by His Lordship and Mr. Reece.
His Lordship said he did not think they could go behind the receiving order made by Sir John Carrington. The debtor bolted away about seven years ago to escape his' creditors and then got a lawyer to bring highly technical objections to get him off and upset all the proceed. ings. It was a clever Chinese dodge, but he would not fall in with it unless he was compelled by law to do so.
Mr. Reece said technical rules were invented
some
for the purposes of justice, and there was always substance behind technicalities. If all rules and forms were to be abolished they night as well abolish all the laws at once.
The case was adjourned till Wednesday.
(August 19, 1899.
August 16th.
Mr. Reece appeared for debtor. Mr. Hastings (with the permission of the Court) for Mr. Bruge Shepherd (Official Receiver and trustee), and Mr. D'Almado (Messrs. Wilkinson and Grist) for the petitioning creditor.
Mr. Reece was about to continue his applica tion, when.
His Lordship reminded Mr. Reece of the fact that there was a receiving order made on the 15th September last. That order still stood. Two courses were open to debtor. If that order had been irregularly obtained without sufficient proof being adduced to the court the proper course was to object to it being made at the time or to apply for its rescinding or else to appeal. Neither the one nor the other course was adopted. If it had the matter would have come before Sir John Carrington, who made the order and was familiar with what happened, and the order might have been rescinded or otherwise.
Mr. Reece said that there was no time limit as to making an appeal, and if his Lordship held that the receiving order could have been appealed from he would ask his Lordship to adjourn the matter to the full court so that it might be argued before the full court. He contended that the receiving order was wrongly made.
|
His Lordship-I certainly shall not do that. Mr. Reece, however, contended that it was not incumbent upon the debtor, if he wished to dispute a receiving order or adjudication, to appeal against the receiving order.
His Lordship remarked that in England the appeal had to be made within 21 days.
Mr. Reece contended that the time limit did not apply to Hongkong. He proceeded to argue that debtor should not have been adjudged bankrupt. ·
His Lordship, interrupting, said-These are the arguments you ought to have adduced in applying to Sir John Carrington to rescind the receiving order.
Mr. Reece snbinitted that under the Ordin- ance the proper course for debtor to take was to wait until the adzudication was made and then to apply for the annulling of the adjudication, because there was no power to rescind the re- ceiving order.
His Lordship-There is power to appeal. dir. Reece-Yaq.
His Lordship-ben why did not you do so. The petitioning creditor (Sui Chi) was cross- examined as to his affidavit by Mr. Reece. The latter began to ask questions as to what transpired before the receiving order, which was granted on Sep. 15th last, but his Lordship said that as he did not propose to go behind the receiving order be ruled that questions as to what transpired before then were not re- levant
On his Lordship's suggestion, Mr. Reece continued his argument.
Subsequently Mr. Grist was cross examined on bis affidavit
His Lordship in dismissing the application said-This is an application under Section 29 of the Bankruptcy Ordinance, 1891, to annul the adjudication of bankruptcy and to order the proceeds of the sale of the bankrupt's property to be handed over to him or his soliciter. The petition, based on a debt of $1,000
and &l Act of Bankruptey; viz.. departing from the colony with intent to do. feat or delay the creditors, was filed in 1893. An interim receiving order was made in 1893 by Sir Fielding Clarke, an adjournment was ordered by Mr. Justice Ackroyd, and on 15th September, 1898, a receiving order was made by sir John Carrington. The debtor alleges that one at least of the essential preliminaries to the proper making of that receiving order was ab.
sent.
The discovery of that flaw, assuming it to exist. is not new. The debtor know of the receiving order and of the flaw he alleged to exist, certainly as long ago as last November. He could have applied to rescind the receiving order or he could have appealed from it, under
sub-section 3 of Section 71 of the Ordinance. He took neither course. He allowed an order of adjudication to be made by me in due con 180 on the 15th June last For years past the property has been preserved from forfeiture or resumption by the Crown by those who paid the Crown rent, which was not
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