January 19, 1901.]
a rental of 885 per Chinese month on a monthly tenancy; that the defendants took possession of the house and continued tenants of it until the 15th March, 1900, when the tenancy determined by a notice to quit given to the defendants on the 15th February, 1900; and that the defen- dants have disregarded the notice and still re- tain possession of the house. The prayer of the petition is that the defendants may be ordered to deliver to the plaintiff possession of the house and to pay to him $500 for mesne profits from the 16th March, 1900.
By their answer the defendants deny that the plaintiff let to them the house at a rental of $85 por Chinese month on a monthly tenancy, save as appears in their answer. They admit that on the 15th February, 1900, they received the notice to quit and deliver up possession of the house on the 15th March, 1900, and that they disregarded the notice and still retain possession of the house. The answer then pro- coods as follows :~~
"5. And for a further answer the defendant firm says that it entered into possession of the aforesaid premises 19 Jervois Street on or about the 18th October, 1895, under or by virtue of a certain lease or agreement for lease for the said premises for a term of 30 years from October, 1895, made in favour of the defendant firm by the plaintiff under the name of Lee Fuk Yuen Tong and by him executed in his firm name Cheung Lung.
6. The rent made payable by the defendant firm under the said lease or agreement for lease was $72 pér Chinese month and in addition one half-dollar shoe money per Chinese month.
". The defendant firm duly paid the said monthly rent of $72 and one half-dollar for shoe money from the 18th day of October, 1895, to the 11th day of March, 1899, and the plaintiff duly accepted the same.
"8. In or about the month of January, 1899, the defendant firm having mislaid the said lease or agreement for lease so executed as aforesaid so informed the plaintiff, and asked him to furnish the defendant firm with a copy thereof, but the plaintiff declared that he had lost his copy of the said lease or agreement for lease, and on or about the 12th day of March, 1899, wrongfully required the defendant firm to pay thereafter rent for the said promises at the rate of $85 per Chinese month or in the alternative to give up possession thereof.
CHINA OVERLAND TRADE REPORT.
ment for the recovery of possession of the premises.
The case cited by the plaintiff's counsel in sup- port of his motion is Lyon v. Reed, 13 M. & W. 285. The facts of that case are long and some- what complicated and I need not state them here. The effect of the judgment-which is described in 2 8m. L.C. 815 as a "profoundly elaborate" one is thus stated in Woodfall's Law of Landlord and Tenant, p. 317:- "The term 'sur- render by operation of law' is properly applied to cases where the owner of a particular estate has been party to some act having some other ob- ject than that of a surrender, but which object cannot be effected whilst the particular estate continues, and the validity of which act he is by law estopped from disputing. Such surren- der is the set of the law, and takes place inde- pendently of, and even in spite of, the intention of the parties. It is presumed to have preceded the act to which the tenant is party. The acts in pais which bind parties by way of estoppel are acts of notoriety, not less formal and solemn than the execution of a deed, as, for instance, livery, entry, acceptance of an estate, and the like." At p. 221 of the same treatise there oc- cur the following observations on the subject of estoppel :-" Indentures of lease for years some- times enure by way of estoppel, which word signifies an impediment or bar to a man's in- validating his own solemn act. Estoppels in general are not favoured; they continue no longer on either party than during the lease or during any renewed tenancy; they ought to be mutual, otherwise neither party is bound by
them."
The law then is clear that "if a lease be granted to an individual, and there be a subse- quency demise of the premises by parol to the same person, that will amount to à surrender of his lease;" per Holroyd, J., in Thomas v. Cook, 2 B. v. Ald, at p. 122; 20 R R 376.
If we apply these principles to the present case as it stands now, it will be seen that they do not warrant the conclusion that in March, 1899, there was a surrender of the lease by act and operation of law. To adopt the language of Parke, B., in Lyon v. Reed supra at p. 307, the act of the defendants in remaining in possession and paying the increased rent was
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59
to apply to the Cheung Loong firm for the leasing of the premise. He saw the master of the Cheung Loong firm and entered into nego- tiations with him for the leasing of the pre- mises. The terms were easily settled with the exception of the term of years. Thirty years was ultimately agreed upon, and a lease for 30 years was drawn up, the amount to be paid per month being $72.50. This went on
t on until the beginning of 1899, when the manager of the defendant firm discovered that his copy of the lease was lost. He asked LiWun for another copy. Li Wan replied that he had lost his copy too, but that he could make out a new rent book. Accordingly the following Monday a new rent book was made out and the first pay- ment of $72.50 entered in it. When this was paid the master of the Cheung Loong informed the accountant of the Wing Fong Tai that an increased rent would have to be paid in the future. Upon this the manager of the Wing Fang Tai went to the master of the Cheung Loong and pro- tested against the proposed increase, but he was unable to make any alteration. After this the defendant firm paid at the rate of $85 per month until the lease was found in an envelope which contained a policy of insurance.
The Chief Justice-When was it found exactly
Mr. Robinson said he did not know the exact date, but he thought it was in January or February, 1900. Accordingly, when the next rent was paid it was paid at the rate of $724 per month. The master of the Cheung Loong, however, refused to accept this sum. In March, 1909, a writ of summons was issued, and within a few days afterwards the lease was registered at the Land Office.
Evidence in support of Mr. Robinson's state- ment was lead.
The hearing was adjourned.
Thursday, 17th January.
IN ORIGINAL JURISDICTION.
BEFORE HE HONOUR SIR JOHN CARRING- TON, C.M.G. (CHIEF JUSTICE).
LI SHEUNG Y. THE WING FUNG TAI FIEM.
In this case the plaintiff sued the defendant for recovery of possession of the tenement No. 19, Jervois Street; $500 for mesne profits; and also claimed costs.
Mr. Slade (instructed by Messrs Wilkinson, & Grist) appeared for the plaintiff, and Mr. Robinson (instructed by Mr. Holmes) for the defendants.
The evidence for the plaintiff was continued and the hearing was further adjourned.
CRICKET
H.K.C.C. V. ROYAL NAVY.
an act which, like any other ordinary act in país, is capable of being explained, and its effect must therefore depend, not on any legal con- sequences necessarily attaching on and arising "9. The defendant firm, fearing lest under out of the act itself, but on the intention of the the circumstances it should be unable success-parties." Here the pleadings leave the inten- fully to resist a suit for the recovery of the tion of the parties in doubt or rather in dispute. said premises, paid the said wrongful demand of The plaintiff on his part alleges the creation $85 per Chinese month on the 9th day of April, of a monthly tenancy in March, 1899. The 1899, and continued to pay after the said wrong defendants on their part deny this und allege ful rate, under protest, until the 30th day of that they were lessees for a considerable term January, 1900, since which date it has tendered
of years, that they only paid the increased rent and offered to pay the rent reserved by the said demanded by the plaintiff because they were in lease or agreement for lease as aforesaid, but a difficult position en account of the loss of their the plaintiff has positively refused to accept document of title, and that they paid such rent the same."
under protest. If this is so, their conduct The state of the ground prevented a start in is quite consistent with the position, not this match being made on the 11th inst., and the that they accepted a new demise of the pro-weather conditions on the 12th were not of the mises at a monthly tenancy, and so put an best. A heavy mist made the light very bad end to their lease, but that they continued all through the game and especially during the in possession under the lease, only paying an last hour of play. On a soft but not difficult increased rent for the sake of quietness and in wicket, the Navy opened with Strong and May. order not to run the risk of a law suit. How how, the pair that knocked off the runs in the the facts may turn out after evidence has been United Services match a few weeks ago. By care taken I am of course unable to say, but as they ful play the score was taken to 39, when Strong are alleged on the pleadings I am of opinion was brilliantly caught by Cox at long on. that the plaintiff has not succeeded in establish other wicket fell at 40, which brought Hickley ing his present contention. The motion must and Noble together in a partnership that made therefore be refused.
things look rosy for the Navy Where only 53 runs had been notched in an hour's play, matters livened up a bit and the score was 92 at tiffin, as the result of nearly 90 minutes' cricket. After the interval, forcing tactics prevailed and hitting was the game. At Hickley got under a ball and Cor
For the purposes of the present motion it must be taken that the statements made in the an- swer are true or at any rate may be true. The effect then of the pleadings is that the defen- dants, being tenants of the premises in ques- tion under a lease for a term of 30 years from October, 1895, granted to them by the plaintiff, with a rent reserved of $72.57 per Chinese month, and having lost the lease, were in March, 1899, required by the plaintiff either to pay au increased rent of $85 per Chinese month or to give up possession of the premises. On the facts stated in the answer it must be taken that the plaintiff was well aware of the existence of the lease and therefore that he was doing a wrongful act in treating it as non-existent. In- stead of resisting this demand, as, on their statement of the facts, they ought to have done, the defendants paid the increased rent under
"the
Throughout this judgment the term plaintiff "has reference to the original plaintiff Li Wun.
Mr. Slade submitted that the burden of proving whether there was a lease or not lay with his learned friend. They were agreed at
or no lease.
An-
protest and continued to do so for some ten the previous hearing that the question was lease | cleverly. The commander's contrip and on
|
to
to open.
months. Now, it is quite clear on this state of facts that there has been no surrender of the Mr. Robinson agreed with this and proceeded lease by the act and agreement of the parties. But it is contended for the plaintiff that the conduct of the defendants amounts to a sur render by act and operation of law of the lease and the acceptance of a new demise as monthly tements; that they are therefore now in posses- sion of the premises under a monthly tenancy; that that tenancy has been determined by a
He said the main facts of the case were already pretty well-known to his Lord- ship, and he would only very briefly set out the details of his case. His contention was that a lease for 30 years was granted to the defen- dants in October, 1895. The premises were burned down in April, 1895, and loss of life was occasioned by the fire. The premises were
of 38 was marked by good cutting and leg and off placing: if he were on a fast wicket he would probably prove a big stumbling-block to local bowlers. At 140 three wickets fell. It was left to Rossand Elliott to stay with Noble till he had made a century, at the end of which he was capitally taken by Dyson, who also dimissed Elliott with a fine catch after a valuable, hard-hit innings. Upon getting set, Noble hit admirably, and
proper notice to quit, and that the plaintiff is. re-built and stood vacant for some time. His after tiffin punished the bowling freely. He
consequently entitled on the pleadings to judg.
carried out to the letter his instructions to force clients' manager saw's notice on the premises the game and naturally ran risks in so doing.
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