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ready, and between half-past nine and ten o'clock I wrote a letter to Mr. May asking him to supply me with a copy of the banish- ment order.
Mr. Sharp-Is that the letter (produced) ? Mr. Mounsey-Yes.
Mr. Sharp After sending that letter, what did you do next?
Mr. Mounsey-After that I had the de- olarations by the mother and aunt filed, and arranged that Mr. Jones should come up to the gaol with me so as to take the plaintiff's declaration. I went up about a quarter of an hour or so before Mr. Jones, so as not to waste any time, and went into the gaol and asked for Leung Kun Yau to be sent down. They told me they had not kept the prisoner, and that he was in the custody of the police.
His Lordship-He was not in gaol? Mr. Mounsey-No. So far as they were con- cerned he had been discharged that morning. I went straight from the gnol to the office of the Captain Superintendent of Police. I saw Mr. May, and I asked him if he had received a letter from me that morning. He said yes, and that he had replied to it. I asked him if he was going to supply me with a copy of the banishment order.
Mr. Sharp-You had not received this reply? Mr. Mounsey-No, but I received it when got back to the office.
The letter was put in. Mr. Sharp-What about the interview with Mr. May !
Mr. Mounsey-I asked him whether he was going to supply us with a copy, and he said no. I asked then whether Leung Kun Yau had had a copy supplied to him, and he said-" No, we do not supply them with copies. The warrant is read over to them," or words to that effect I asked-" Will you supply us with a copy?" and he said-"No, I won't. You can see it if you like, but I won't give you a copy." That ended the interview.
Mr. Sharp-When was the application made for the writ of habeas corpus !
Mr. Mounsey-Two o'clock on the same day. Mr. Sharp Did the defendant at any time let you have a copy of this warrant ?
Mr. Mounsey-No.
Mr. Sharp-When did the defendant make his return to the writ.
Mr. Mounsey-Three days later on the Saturday morning.
Mr. Sharp-And what was the result? Mr. Mounsey-That the plaintiff was natural-born British subject, and he was dis- charged.
8
Cross-examined by Mr. Pollock. Mr. Mounsey said he first saw the plaintiff in the matter in the charge-room at the Magistracy.
Mr. Pollock-Before that you had no com- munication with him directly at all?
.Mr. Mounsey-No.
Mr. Pollock-And so all you did then was simply to take a declaration and interpret it to him in the presence of Mr. Jones?
Mr. Mounsey-That was all.
Mr. Pollock-Yon did not take instructions from him personally?
Mr. Mounsey-No; from his mother, on his
behalf.
Mr. Pollock-May I ask when you first be. came aware of the provisions of this Statute in respect of which the plaint.ff is now suing for
£100!
Mr. Mounsey-On the 17th-the Saturday morning.
Mr. Pollock-At the interview with Mr. May, did he say "I do not see that I should do
what I am not obliged to?"
Mr. Mounsey-He may have said so; remember.
don't
Mr. Pollock Did you say, in answer to that, "I don't wish you to do what you are, not obliged to do?
"
Mr. Mounsey-No, I do not remember saying that at all.
Mr. Pollook-Did Mr. May offer to let you look at the writ ?
Mr. Mounsey-Yes, but I declined. Mr. Pollock-Why?
Mr. Mounsey-There was no earthly use in looking at it. I wanted a copy.
Mr. Pollock-What did you want a copy for? Mr. Mounsey-To attach to the declaration of the plaintiff.
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و کچھ
THE HONGKONG WEEKLY PRESS AND
Mr. Pollock-Did you tell Mr. May on the 14th August that this man wasa British subject ? Mr. Monnsey-I believe I did, but I can't be sure of it.
Mr. Sharp-Did you withdraw your demand in any way in that interview with Mr. May?
Mr. Mounsey-No.
Mr. Sharp here pointed out to his Lordship that it was not intended to reflect in the simplest degree upon Mr. May's zealousness or inten- tions, nor was it suggested that he was aware that he remembered that morning that the Act existed. In Mr. Sharp's opinion there might be a large number of admissions of fact that would shorten the case.
Mr. Pollock-I would submit there is nothing at all for us to answer in this matter. I will call Mr. May to question him on one or two points, and then I will address your Lordship.
His Lordship-It seems more a matter for legal discussion.
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[September 9, 1901.
has jurisdiction as a Court of first instance, and next, what is the proper form of action to recover the value in money of arrears of rent reserved in produce ?
The Court is ander this disadvantage, that no counsel or solicitor appeared on either side to conduct and argue the case, which, moreover,
I believe, one of first impression. The first question then is, whether this Court has jurisdiction in this case.
Prima facie, there is jurisdiction, because Ordinance No. 12 of 1873 is not included in the Schedule of Ordinance 10 of 1899 known as the Hongkong Extension Exemption Ordinance, 1899; and Section 9 of Ordinance 12 of 1873 enacts that "the Supreme Court shall have the same jurisdiction in the Colony of Hongkong and its dependencies as H.M.'s Courts of Queen's Bench, etc., lawfully have in England."
Now, the order in Council of the 20th October, 1898, and the Governor's Proclamation of the Mr. May was called, and gave evidence 8th April, 1899, published at pages 521 and 522 regarding his refusal to supply Messrs. of the Government Gazette of 1899, make it Mounsey and Bratton with a copy of the plain that the New Territories are part and banishment order. It was not until the even-purcel of the Colony of Hongkong. ing of the 10th August that the defendant heard it suggested that the plaintiff was a natural-born British subject.
Mr. Pollock-Mr. Mounsey did not tell you on the 14th that the man was a natural-born British subject?
Mr. MayHe did not indicate in any way what was the ground for the writ of habeas
corpus,
I didn't ask him, and he didn't tell me.
Mr. Sharp-Were you aware of a similar application being made to your deputy for a copy of this order on the following day by Messrs. Mounsey and Brutton?
Mr. May-Yes. I was in the office till late that evening, and he showed me the application.
ar. Sharp-Did you see Mr. Badeley's answer in reply?
Mr. May-No; I don't know what answer ho made.
was
Mr. Sharp-You did not know its purport? Mr. May-No. Of course, any communication like that sent to my junior officers is ignored.
Three Chinese witnesses were called, including the sergeant-interpreter at No. 7 Police Station, who deposed that the plaintiff made a statement in the charge-room that he came from China.
Mr. Pollock submitted that the Habeas Corpus Act, under the provisions of which the plaintiff was suing. not applicable in this Colony. Furthermore, it had not been proved that Mr. Mounsey had the authority of the plaintiff to act on his behalf in making the demand for a copy of the warrant. No demand because Mr. Mouusay himself had admitted was made under the provisions of the Statuto,
that he was not then aware of its provisions, and he had not even asked why the man was detained. No penalty, Mr. Pollock argued, was recoverable by the plaintiff from the defendant.
The hearing was adjourned.
JUDGMENT IN ACTION FOR RECOVERY OF
RENT.
by his Lordship in the case of Tang Yik Hing The following is the judgment delivered and Tang Ip Fu, plaintiffs, land-owners in the New Territory, against Wun Lin Hang, defendant, a farmer, for recovery of rent:
This is an action claiming $57.24 for arrears of rent due during the 25th, 26th and 27th years of the Chinese reign styled Kwang Hea, a period which roughly corresponds with the years 1899, 1900 and 1901.
The land in respect of which this claim is made is paddy land at the village of Luk Ti Tong in the sub-district of Mai Wo in the island of Lantao: it is therefore land in the New Territories.
The evidence satisfies me that the defendant, during 23rd and 24th years of the reign styled Kwang Hsu, rendered to the plaintiffs an annual rent which consisted of produce of the annual amount of 6 shek 3 tau 6 shing of paddy.
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Apart, therefore, from any subsequent enact. ment stripping the Supreme Court of its jurisdiction, that Court undoubtedly appears to have jurisdiction to entertain actions upon matters arising in the New Territories.
The only subsequent enactment which might oust this jurisdiction is Ordinance No. 11 of 1899, known as the Local Communities Or- dinance.
Part vi. of that Ordinance provides for the establishment of local tribunals in districts and sub-districts into which the New Territorie have been divided, and such tribunals are to bec called district courts or sub-district courts, with & jurisdiction, in civil cases, limited to claims- of various kinds, not exceeding one hundred dollars.
If the district and sub-district courts con- templated had been established, it might have been a nice question whether the Supreme Court bad jurisdiction: but as it does not appear from any source that such district and sub-district courts have been established, the jurisdiction of the Supreme Court in this case seems to stand unimpeached.
The next question is, what is the proper form of action to recover the monetary value of arrears of rent reserved in produce!
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Although rent is usually reserved and made payable in money, yet, according to Coke, it may be reserved As well in the delivery of hens, capons, roses, spurs, bows, shafts, horses, hawks, wheat, or other profit that lieth_in
Litt. 142a. render, office, attendance and such like.”—Co.
It was legitimate, therefore, to reserve a rent in produce such as paddy. I say was, because I shall show later that rent in produce may not now be reserved.
The proper form of action may, it seems, be any of three-either an action at common law of debt for rent, or of debt for use and occupa- tion, or by statute an action on the case for use and occupation.
Of these three forms of action, the third appears to be the most suitable in this case; and, if necessary, the plaintiffs' writ may be amended accordingly, for no prejudice will thereby be suffered by the defendant.
This form of action is that provided by 11 Geo. II C. 19 9. 14, which enacts that itëshall be lawful for a landlord, where the agreement is not by deed, to recover a reasonable satisfao.~ tion for the lands occupied by the defendant, in an action on the case for the use and occupa- tion of what is so held or enjoyed; and if, in evidence, any parol demiss or any agreement (not being by deed) whereon a certain rent was reserved, shall appear, the plaintiff in such action may make noe thereof evidence of the quantum of damages to be recovered.
The expression parol démise includes, of course, a demise by word of mouth.
The evidence before the Court is to the effect that the defendant was tenant in the 28rẻ year; that defendant holds ro title-deeds to the land; that he paid rent for several years to the first plaintiff; that he become tenant by, an, oral agreement and was a tenant from year to
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The relation of landlord and tenant between the parties being thus established, the tenant, who is the defendant, cannot dispute the plaintiffs' title. It follows from this that the Court gives no decision on the question of who is the real owner of the leased fields, which is a question for the decision of the Land Court | year. constituted under Ordinance No. 18 of 1900.
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The plaintifs stated that the monetary value
Two points suggest themselves in connection | of the 6_shok_3 tan 6 shing of paddy reserved with this case ; first, whether the Supreme Court
sanual rent was $19.06, and that the rent
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