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Strand, sued T. H. Kingsley, who was then in Shanghai, for specific performance of an agree ment, dated 18th October, 1900. for the sale by the defendant to the plaintiff of a certain piece of land situate at Kowloon and registered in the Land Office as Marine Lot No. 39. The plain tiff lost the suit, and now claimed the sum stated from Kinghorn & MacDonald, the agents in the disputed sale. Plaintiff stated that the land was actually sold to him by the defendants, and T. H. Kingsley repudiated their action. He was to pay $325,000 for the property, upon the terms that 10 per cent. be pail cash down and the remainder w thin six months. T. H. Kingsley repudiated the authority of Kingborn & MacDonald to bind him by the acceptance of the offer and maintained that he had only authorised the defendants to accept an offer of $325,000, cash down. The damages claimed, $41,325, represent the difference between the sum of $325,000 for which the plaintiff had agreed to purchase the property, and the sum of $369,325 representing 197,500 square feet of land at $1.87 per square foot, at which rate the plaintiff by contract had agreed to re-sell the property to the Hongkong Land Investment and Agency Co., Ld. In addition plaintiff sought to recover the costs incurred in his previous suit. The defendants said that they were special agents of Mr. Kingsley at the time they concluded the sale of the land, and mis- takenly assumed that the vendor would confirm their action in so doin. The sale took place on Saturday, 20th October. As soon as possible afterwards, namely on the following Monday, the defendants told plaintiff of the mistake and of the refusal of their principal to confirm the of sale. They denied the alleged breach warranty.
Mr. Slade, în opening the case, stated that the substantial ground upon which he proposed to argue was that the verdict was against the weight of evidence and perverse. He proceeded to quote records to show what had been laid down as the meaning of the phrase "the weight of evidence as used in applying for a new trial, and submitted that the jury had been unreasonable in not adopting the evidence given by Mr. Kinghorn in his letter of 20th October, written at a time when he had no interest but to tell the truth and to make as good a case for himself as possible, ard
bad no idea there Tus when he
any personal responsibility upon himself in connec tion with what he had done in signing the letter, for that evidence was of an entirely different quality from the explanation he gave of the same transaction in the witness-box in the hearing of the jury. The evidence in the letter was so much more cogent on account of the circumstances under which it was written that it was unreasonable of the jury to have had this disregard of it and to have accepted the verbal explanations of the witness in giving evidence, as they did. The preponderance of the evidence, he held, was so greatly in favour of the plaintiff that the verdict was unreasonable and unjust and ought to be set aside. Mr. Slade proceeded to review the circumstances of the case, and pointed out that the whole question was whether the parties considered that the letter dated 20th October, including the postscript, was a binding contract on all parties. Mr. Sharp said that the question was one entirely of the credibility of witnesses. If the jury believed Mr. Kinghorn, they were justified in their findings. If the jury believed-and there could be no doubt that they did substan- tially believe-Mr. Kinghorn and disbelieved the plaintiff, no other verdict but the one they gave was open to them. Mr. Slade went on to discuss the authorities quoted by Mr. Slade and to cite others bearing on the case and afterwards dealt with the evidence on record.
The case is proceeding..
IN SUMMARY JURISDICTION. BEFORE HIS HONOUR T. SERCOMBE SMITH (ACTING PUISNE JUDGE).
CHOY
Wing Cheung Shing, 19. Bonham Strand East, and twelve other plaintiffs, local Chinese firms, sued Choy Kang Yu and two others as partners of the Tai Fung Shop of Canton in the Empire of China in thirteen actions
WING CHEUNG SHING AND OTHERS v.
KANG YU AND OTHERS.
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THE HONGKONG WEEKLY PRESS AND
to
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are now been
[February 1, 1902.
"Subject to for various amounts for goods sold and opinion be construed as meaning
the preamble of this Ordinance": even if it Whereas delivered.
At the trial of the actions, Mr. E. J. Grist, could, the words in the preamble solicitor, who appeared for the second defendant, it is expedient that various Statutes
do not re-enact, Ho Wa Chin, applied for the writ to be set the subject matter whereof is provided for by aside on the ground that the plaintiffs had not the Code of Chil Proced.re applied for the leave of the art to issue the with or without modification, the repealed writs for service out of the jurisdiction as ra- Ordinance No. 13 of 1873, because a preamble quired by Section 13 of the Code of Civil is not an enacting portion of an Ordinance. Procedure. The matter was argued fully in if I stopped here, the result woul, be that there Court, Mr. M. W. Slade, barrister-at-law, is no Ordinance regulating the procedure and appearing for the plaintiffs, instructed by Mr. practice of the Supreme Court in its Summary Jurisdiction, other than Ordinance 14 of 1873, H. K. Holmes, solicitor.
His Lordship delivered judgment as follows: which, in itself and apart from the incorpora- |—In this action to recover the price of goods tion of the Old Code where applicable, is an sold and delivered, the second defendant has inadequate Code of adjective law. Assuming raised the objection that the plaintiff failed to that the Court is correct in its conclusions that tho leave of the Court under the sections of Ordinance No. 1 of 1873
the Old Code obtain Section 13 of the Code of Civil Procedure which refer to issue the writ for service out of the extinct because the Old Code has
re-enacted, jurisdiction. Out of this objection there repealed without having been
pass to consider the effect of the lan- arise two questions-first, whether Section I
Code of Civil Procedure 13 of the Code of Civil Procedure is applicable guage of the to proceedings ler the Supreme Court established by Ordinance No. 5 of 1901. By Summary Jurisdic.ion Ordinance No. 14 of the interpretation clause of that Ordinance the means the Supreme Court 1873; and, second, if the objection applies, term "the Court has the defendant waived the irregularity by and includes the Chief Justice and the Paisno Judge of the Supreme Court, & tting separately, having taken any step in the action.
Section 34 of Ordianca No. 14 of 1873 in Court or in Chambers, and by Section 12 (3) enacted that the provision of the then Code of of the Interpretation Ordinance No. 24 of 1897 "the Supreme Court" shall Civil Procedure (which was Ordinance 13 of the expression 1873) should be applied, mutatis mutandis, to mean the Supreme Court of Hongkong, It is suits instituted under Ordinance No. 14, so far evident from Ordinance No. 14 of 1873 that as the same could be made applicable thereto. there is not now any Court of Summary Under what I will call the Old Code, service Jurisdiction, and that, in lieu of the former out of the jurisdiction was regulated by Section Court of Summary Jurisdiction, there was con- 8, Sub-Sections 8 and 9, but the writ for service ferred upon the Supreme Court of Hongkong a could under Section 9 be issued without the leave summary jurisdiction at Law and in Equity. of the Court by merely filing a precipe for the Therefore it is the Supreme Court which same. Thus both the issue and the service of exercises jurisdiction under Ordinance No. 14 the writ were regulated under the Old Code; of 1873. But as the term "the Court," means There are various and the practice in Summary Jurisdiction the Supreme Court, it is the Court which exer- corresponded, mutatis mutandis, with the prac- cises that jurisdiction.
jurisdictions vested in the Supreme Court and tice in Original Jurisdiction on these points.
Now, Ordinance No. 6 of 1901 repeals the meaning of Section 13 of Ordinance No. 5 Ordinance No. 13 of 1873, the subject matter of 1901 is, in my opinion, that in no jurisdic- of writ for service out whereof is provided for by the Code of Civil tion of the Supreme Court, which is the issued without the Procedure, Ordinance 5 of 1901; but does it Court, shall re-enact Ordinance No. 13 of 1873? One effect the jurisdiction be of Section 5 of Ordinance No. 6 of 1901 is that leave of the Court. It follows that in the the repeal of Ordinance No. 13 of 1873 is not Summary Jurisdiction of the Supreme Court to affect any jurisdiction or principle or rule of no such writ can be issued without the leave of law or of equity established or confirmed by the Court.
It seems expedient that I should express Ordinance No. 13 of 1873; but the phraso
Jurisdiction or principle or rule of law or of the opinion that the Code of Civil Pro- equity" does not embrace procedure and prac-codure applies in its entirety to the Supreme tice. Ordinance No. 6 of 1901 therefore appears Court in its Summary Jurisdiction except in Unless therefore, this judg not to indirectly re-enact Ordinance No. 13 of so far as Ordinance No. 14 of 1873 conflicts 1873 and certainly contains no direct re-enact with that Code. ment thereof. Accordingly, it is not an Ordin-ment is reversed, I shall act on the opinion just ance which repeals and re-enacts, with or without expressed ut res magis valest quam pereat. modification, any provisions of Ordinance No. Having held that the writ in this action was 13 of 1873. Bút by Section 36 of Ordinanes wrongly issued without the leave of the Court, 24 of 1897 it is only when an Ordinance passed there remains to be considered the further after the 1st January, 1898, repeals and re- question whether the irrogularity in the issue without modification, any has been cured by the conduct of the defendant enacts, with provisions of a former Ordinance, that re- who has objected. In the first place I think other Ordinance to the that the plaintiff's action was not a mere irre- ferences in any
Next, if it provisions so repealed are to be construed as gularity: it was a step taken which was not
re-enacted. warranted by any enactment. references to the provisions so Therefore the references in Ordinance N. 14 amounts to a mere irregularity, I think that of 1873 to the repealed Ordinance No. 13 of 1873, the application to set it aside his been made are to be construed as references to Ordinance within reasonable time and that the defendant No. 13 of 1873 if and as re-enacted by the same concerned has not taken any fresh step in the he writ was issued on 20th December, Ordinance which repealed it. As, however, it action. appears that Ordinance No. 6 of 1901 merely 1901, and the application was made at the hearing repealed without re-enacting the provisions of on 23rd January, 1902, the date of hearing of the Ordinance No. 13 of 1873, the inference is that action not having been fixed until the 17th Jan- Ordinance No. 14 of 1873 refers to a repealed uary. Moreover, there is no such step as appear- Ordinance which has not been re-enacted: fromance to a writ issued in the Summary Jurisdio- which it follows that the procedure and practice tion side of the Court. The equivalent of of the Supreme Court in its Summary Juris-appearance is the attendance in person or by diction are no longer based on Ordinance No. 13 representation on the day fixed for the hearing. of 1873, I have not lost sight of the preamble In this instance, the defendant in question of Ordinance No. 6 of 1901 which may be refer- was represented by Mr. Grist, who attended on red to for assistance in explaining the scope and object of the Ordinance, though it may not be resorted to to ascertain the intention of the Ordinance, unless there is an ambiguity in the enacting part. By Section 2 of Ordinance No. 6 of 1901, the Ordirance No. 13 of 1973 is repealed subject to the provisions of the repealing Ordinance. There is no ambiguity
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B
the day fixed for hearing and at once objected to the writ in the action as being invalid. The judgment of the Court is that the writ be set aside as regards all the defendants, the second defendant to have his costs. The Court adjourned.
At the election of four members for the in this enacting part of the Ordinance, and the Municipal Council of the French Settlement al only necessary enquiry is as to the mean-Shanghai, only four candidates were propos- ing of the expression "Subject to the provisions ed, Messrs. E. T. J. Blount, P. Brunst, J. which occurs in the same Chapsal and B. A. Clarke, and they were of this Ordinance Section 2. That expression cannot in my accordingly declared duly elected,
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