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amount and security, would lie as of right to the Privy Council.
On the one hand, the cases cited on behalf of the plaintiff decided what was or what was not a final order under Order LVIII, and its rules as regards the time for appealing from such an
order.
On the other hand, the cases cited on behalf of the defendants showed that an order either granting or refusing a new trial was an order from which the Privy Council would entertain an appeal, and contained an intimation of the views of the Privy Council as to what was not a final judgment.
These, cases, however, do not assist us in de ciding whether the judgment in question is a final judgment or not. In the absence of deci- sions directly relevant to the question, I must treat the matter as reg integra.
Now, both an interlocutory and a final judg- ment are alike in this respect that each decides a given point: the difference is that an interlocu- tory judgment is one which is given during the course of a suit and has not the effect of finally determining it,
In the present suit there are several issues in fact and an issue in law. What has happened is that judgment on the issue in law has been given but that that judgment is not also deci- sive of the issues in fact. Is such a judgment final? It should be noted that the judgment it question was a preliminary judgment pro- nounced during the course of the suit and had not the effect of finally determining the rights of the parties, for it did not prevent the plaintiff from forthwith proceeding to try the issues in fact: it was a finding by a judge on an issue of law which, it had been agreed, should be tried separately.
In my opinion, a judgement which does not determine the result of a suit, nor dispose of the whole matter at issue in a suit, nor decide all the rights of the parties raised in a suit. is not a final judgement. The Court should have regard to the specific results of a given judge ment in deciding whether it is final or not. If the effect is not to settle all the points in dispute between the parties, then such judgment ap- pears to me to be not a final judgment.
My conclusion therefore is that the judge- ment of the 14th March last was not a final judgment; that it was not a judgment in res- pect of which leave to appeal to the Privy Council should have been granted and that the motion to set aside the order made on the 26th March last giving leave to appeal to the Privy Council should be allowed with costs.
This being so. I am not called on to decide whether the appealable value had been reached
or not.
The Chief Justice. The order of the Court then will be that the motion be refused and that there be no order as to costs.
MR. HO TUNG AND THE MAN ON INSURANCE COMPANY.
THE HONGKONG WEEKLY PRESS AND taken by the Man On Company, but were aban- doned in favour of an objection going to the merits, subject to the reservation of a question of costs as regards the form of the proceedings. The objection on the merits was that the motion filed on the 7th April and order to be same questions and no others than those that heard before the Fall Court raised precisely the had already been raised and decided between the discharging an order to show cause. same parties by the judgment of 26th February,
The Puisue Judge said On 26th February, 1900, judgment was delivered by the Chief Justice discharging an order calling upon the Man On Insurance Co.. Ltd., to show cause why the register of members of the Company should not be rectified in respect of eleven specified shares by removing from the register the names of the transferors of the shares and substituting therefore the name Ho Tung, the transferee as the holder of such shares.
Having failed in his first attempt to get his name put on the register of members of the Man On Company in respect of those eleven shares, Ho Tung obtained, on the 26th April, an order ex parte that notice should be served on the Man On Company, that a motion filed on 7th April would be heard before the Full Court on a given day. The motion filed on 7th April was that the register of members of the Man On Company might be rectified by removing the names of the transferors of 108 specified shares other than the 11 shares already men- tioned and substituting therefore the name of Ho Tung, the transferee, as the proprietor of such shares.
A Judge's summons to set aside the order of 26th April was taken out by the Man On Com- pany, and the hearing came on before the Full Court on 9th May, when the summons was allowed to be treated as a motion, subject to a proper notice of motion being filed by the said Company. Certain preliminary objections were
the matter was strictly res judicata, but con- Mr. Francis for the Company conceded that tented (1) that the identical questions raised in the motion filed on 7th April were raised in the before the Chief Justice on 16th and 17th motion filed on 5th February, and were heard February, and determined by him on 26th February, and (2) that the Court ought to exer- cise its inherent jurisdiction and stay further proceedings on the ground that the present proceedings are frivolous and vexations and an abuse of the process of the Court.
According to the judgment of the Chief ing questions had arisen Justice delivered on 26th February, the follow- whether the registered Articles of Association for decision—(a) of the Man On Company were valid or in vaild; (b) whether, if the said Articles were invalid, the regulations contained in Table A. of the First Schedule to the Companies Ordinance, 1865, applied to the Company and rendered unquestionable the right of registration claimed by Ho Tung; (c) whether, if the said articles were valid, Ho Tung was entitled upon a proper construction of them and in the circumstances of the case to have the transfers registered.
On behalf of Ho Tung, Mr. Slade admitted that the points of law, raised on the earlier motion were raised on the later motion. with this difference-that in the present case the Man On Company have absolutely refused to consider the new applications.
The facts also, it was submitted, were not the same. for the shares are different and purchased at different times under different contracts, and the applicant. Ho Tung, is not now in the same relation to the Company as he was on the former occasion. Let me first take the different points of law alleged to exist, viz., that the Man | On Co., have now absolutely refused to consider the new applications in respect of the 108 shares.
Ho Tung, in his affidavit of 7th April. para. 8 says the directors of the said Company which through their solicitors have refused to consider such applications." Then in para. 9 he says. In reply to one of the said applications the reasons given by the solicitors for the said Company, for the refusal of the said directors to register shares in my name, were that I was not con- sidered by the said directors to be a fit per- son to hold shares in the said Company, inas- much as I was a shareholder and largely in terested in other Insurance Companies carry- ing on business in competition with the said Company." He does not mention the rea- son for refusal to register the other applica, tions which, from Mr. Wilkinson's affidavit of 9th April, para. 5, Was because shareholder had
no in
same.
[June 2, 1900,
on the previous occasion? If not—and I do not: perceive any such virtue-then the bare subject matter, stripped of all adventitions cironm. stances, such as quantity and different trans- ferors, appears to me to be in substance the
is now different from what it was because Ho relation of Ho Tang to the Man On Company same in both motions. Again, it is said that the
Tung is no longer a compradore to Messrs. Jardine, Matheson, and Co. The former re- of a transferee desiring to have his name entered Iation of Ho Tung to the Company was that
on the register of members as a holder of shares. relation to Messrs. Jardine, Matheson, and Co. That relation was not affected by Ho Tung's
Company is the same as it was before and is not The present relation of Ho Tung to the Man On affected by his present relation to Messrs. Jardine, contention put forward on behalf of Ho Tung, Matheson, and Co. Having dealt with the my conclusion is that the question of law arising upon both motions are the same, and that the subject matter of his motion is substantially the what object he has in view-to be allowed to This being so, is Ho Tung-no matter
law that have already been decided against him? reopen in the manner attempted, questions of In Stephenson v. Garnett (1898) A. L. Smith L. J. said “it would be an abuse of Q. B. 677, the process of the Court to allow a suitor to litigate over again the same question which has already been decided against him. Though the Court ought to be slow to strike out a statement of claim or defence and to dismiss action as fri. volous and vexatious, yet it ought to do so when, as here, it has been shown that the identical
cided by a competent Court." In the same case question sought to be raised has been already de- Collins L. J. says. "The very same question judge, and that lets in the inherent jurisdiction which is raised in this action was decided by the of the High Court, as appears from the cases which have been cited to us to stay the action process of the Court." Here is a distinct ruling. as frivolous and vexatious and an abuse of the
that the bringing of a subsequent action. involving a question identical with a question already disposed of between the parties is fri- volous and vexatious and an abuse of the process of the Court.
Ex
For Ho Tung it was contended that the inherent jurisdiction of the Court to stay pro- ceedings as frivolous vexatious and an abuse of the process of the Court was exercised only in possible chance of success, or which in fact were cases in which a party on the face of it has no hopeless. Willis v. Earl Beauchamp, 11 P. D. 59 was then cited. There Cotton L. J. said: persons would be hopless, and I cannot but look The action against the representatives of the
upon this action as one which is vexations and
It is calling upon the defendants here to contest unnecessary and would produce no good result. the question of the relationship to the decessed after the vast number of years which have elapsed (nearly ninety years) without the pro- bability of any good result arising therefrom. Brown L. J. said: "I think this action ought to be stayed as being a vexatious action within the meaning attached to that word by the Courts- writing to the Secretary to sell any of his good." Fry L. J. said: “I think it is hardly signified his desire bacause it can really lead to no possible shares to Ho Tung in accordance with the pro- going too far to say that an visions of Art. 26 of the Company's Articles. ninety years after the death of the person to action begun This was a conditional refusal, not an absolute whose estate it relates is almost prima facie refusal and it nowhere appears in any affidavit vexatious." Then the Lords. Justices assert that the conditional refusal of the Company was not good as law, for para. 9 of Mr. Wilkinson's
that an action is vexatious, which is hopeless, affidavit does not touch the point, if the regis- good result arising, or which can really lead to or out of which there is no possibility of any tered Articles of Association are the legal no possible good, or which is brought after a Articles of Association of the Company. cannot arise; if the registered articles of Associa the parties is herein raised. The L. J. J. say comes to this, that the alleged new point of law gation of a question already decided between It long lapse of time. No question of the reliti--
tion are valid-and they have been held valid that in the particular case- before them the then Article 26 is valid and the refusal to register, unless its provisions have been com.
action was for certain reasons vexatious. It is plied with, cannot come into question.
a long cry from that to saying that the elements . different points of law alleged to be involved in in every case before a Court would exercise its The which they found in that case must be elements the later motion accordingly seem to me to be inherent right. The next case of Young v. non-existent. Next as regards the different Holloway (1895) P. 87 which was referred to facts. It is alleged that the shares are diffe- emphasizes the importance of not shutting out rent in their numbers and at different times under different contracts. be the assertion of a just right and there-
were purchased a litigant from what may even possibly - Assume that all these alleged differences fore not deciding that a case is frivolous so. exist, is there any virtue in them to have as to stop proceedings. Then the Presi- altered the grounds of law on which the former dent of the Probate Division refrained from decision rested had the present 108 shares in- pronouncing two parts of a case set "up stead of the original 11 been before the Court to be frivolous as to one part because, on the
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