206
SUPREME COURT.
Monday, 10th March.
IN ADMIRALTY JURISDICTION.
[March 15, 1902.
THE HONGKONG WEEKLY PRESS AND
right to point out that both members of Court | procedure was irregular and out of order. Since I the receipt of that letter, he had been in com- are to a certain extent biassed in this cas ). as Acting Attorney-General advised the Governmunication with the Colonial Secretary of Hong- ment on this point some years ago, and I believe kong with a view to a settlement of the matters my colleague was Acting Colonial Secretary at in question in that action, but it had been found the time the award was made. I think it only impossible to come to any settlement, and a fur- ther delay of one month had been occasioned by right to tell you that; and the Chief Justice, BEFORE HIS HONOUR A. G. WISE (ACTING Mr. Goodman, is still more biassed, I should such communications. The plaintiffs would have instituted an appeal from the decision of Sir CHIEF JUSTICE),
say, because he was Attorney-General.
John Carrington without any delay if it had not been for the advice given to them by Mr. Their Lordships, continued Mr. Francis. Morgan Phillips, would see that no time bad been lost.
THUỶ TẠI CO., LD. 7. THE SHIP “TUNG KONG.
This is a suit in which plaintiffs claim $3.500 for damages alleged to have been sustained by their vessel Hung-mow by colliding with the defendant ship in the West River at the entrance of the Wangmoon Channel on 1st January.
Mr. M. W. Slade, barrister-at-law, appeared for the plaintiffs, instructed by Mr. C. D. Wilkin- son of Messrs. Wilkinson & Grist, solicitors; the defendants were represented by Mr. E. H. Sharp, barrister-at-law, instructed by Mr. H. Hursthouse of Messrs. Dennys & Bowley, solicitors.
Evidence having been taken, the case was adjourned.
Thursday, 13th March.
IN APPELLATE JURISDICTION.
BEFORE THEIR HONOURS A. G. WISE (ACTING CHIEF JUSTICE) AND T. SERCOMBE SMITH (ACTING PUISNE JUDGE),
HOWARD AND STEPHENS v. ATTORNEY- GENERAL,
This was a notice of motion for leave to appeal from the decision of Sir John W. Car rington delivered ou 1st December, 1900.
Mr. T. Morgan Phillips, barrister-at-law, appeared for the appellants, instructed by Mr. M. J. D. Stephens, solicitor.
The petition in the original case stated that the plantiffs were until quite recently the Crown lessees and the owners and occupiers as tenants in common of Marine Lot No. were 184 in the City of Victoria. There godowns erected on the lot, and the plaintiffs carried on there the business of godown-keepers: From the time the lease was granted in 1884 until about April, 1898, the lot abutted on the north side for a length of 100 feet on the Praya, and was only separated from the sea in the Harbour by the Praya, which at that point was about 50 feet wide. The plaintiffs were able at all times of the day and night and at all states of the tide, to bring cargo. boats to the sea-wall for loading and uploading goods. About the year 1891 the Governor, under the Praya Reclamation Ordinance, 1889, commenced to construct an embankment along the Harbour front, from a point westward of the plaintiffs' lot to a point, eastward of it and to construct a sea-wall and to reclaim and fill in the foreshore and bed of the Harbour between the Praya and the new embankment and sea- wall. The result of these operations was that the plaintiffs' lot was converted from a marine lot into an inland lot; it no longer abuts ou the Praya or sea road, and no longer has any direct access to the sea, but is separated from it by the old Praya, by a piece of reclaimed land, the pro- perty of the Crown, of about 185 feet in width, and by the new Praya and sea-wall. of about 75 feet in width. By the diminution of their busi- ness during the construction of the works the plaintiffs suffered a loss of about $25.000, and by the depreciation in value of their lot they suffered
further loss of about $50,000. Before the commencement of the works the lot, with the buildings thereon, was of the value of about $200,000 at the least. After the completion of the works immediately in front of their lot the plaintiffs were unable to obtain more than $110,000 for the lot and the buildings thereon, and this depreciation was entirely owing to the couver- sion of the lot from a marine into an inland lot. The relief asked for in the original suit was that the award of the Acting Governor, Major- General Black, of $15,000 as compensation be set aside and declared null and void. Sir John Carrington gave judgment for the defendant.
Mr. Morgan Phillips stated that he appeared for the appellants in support of the motion. Their Lordships were perfectly well aware of' the facts of the case.
The Acting Chief Justice-I think it only
Mr. Morgan Phillips-It would be affectation to ignore the fact that your Lordships have an interest in these proceedings. However, I am not afraid at it that there can be any bias is the matter.
The Acting Chief Justice-I hope yon shall not be. But I think it only right to tell you that we have been acting in the matter.
Mr. Morgan Phillips-I think my task will be lightened by the fact of your Lordships' acquaintance with the case.
The Acting Chief Justice-I do not know that; I was only there for a short time.
Mr. Morgan Phillips went on to state that he would lay the facts before them without any There fear of bias on. their Lordships' part
was
sum of
now
The Acting Chief Justice-What about the nine months from the decision till the time of the petition.
Mr. Morgan Phillips-Well, it was stated that Mr. Francis was during that time getting the petition all ready.
The Acting Chief Justice-But nine months is a long time to prepare a petition.
Mr. Morgan Philips replied that their Lord- ships would see that the appellant did urge Mr. Francis to complete the petition as quickly as possible. Mr. Francis was of course a very busy man. Anyhow it was evitent that his clients had not slept upon heir supposed rights in this matter. They had endeavoured from first to last to urge them without delay. Their Lordships would note that the Code came into restricted the absolute right of appeal, so that operation on 1st July, 1901, the Code which during that time they were pursuing what they were advised was the right process to enab e them to appeal from that decision, but un- fortunately it appeared that that, was not the this year were they made aware of that fact. proper procedure, and only on 20th January of
communication with So soon as that came to their knowledge, they placed themselves in the Colonial Government here with a view to settlement. No settlement was arrived at and at once they commenced proceeding in that Court with a view to appealing regularly against the decision of Sir John Carrington. Under these circumstances, it seemed to him and he thought that with those facts before there had been no u due delay by his clients,
olusion that that was a case in which special them their Lorships would come to the con- leave might be given under the provisions of
The Acting Chief Justice-Have you got you acted проп advice which any case where, had to get special leave. afterwards turned out to be bad, you were able
of one.
Mr. Morgan Phillips-No; I do not know The Acting Chief Justice-you are simply going upon the facts ?
u absolute right of appeal against the decision of any judge sitting alone in that Court. But the right had been restricted by the provisions of the Code of Civil Procedure. Sec. tion 606 stated that no appeal to the Full Court | from any decision of the Court shall, except by special leave of the Full Court, be brought up after the expiration of six months, the period to be calculated from the time the decision was pronounced. He did not propose to argue the point as to whether that section was so com- pletely retrospective as to prevent his client the right of appeal in this case, for he thought he would show their Lordships that there were strong grounds why special leave might be granted on this application. Their Lordships well knew that these proceedings were originally brought by his clients in respect of certain works which were done in conbection with Ordinance 1889. the Praya Reclamation His client were owners of a certain lot affected by the Reclamation. They did not concur with the proposals of the Ordinance, but eventually an award was made to them in the way of com- pensation by the then Acting Governor, General Black. The award was a $15,000, whereas his clients claimed a sum of up- wards of $170,000. They at once took proceed-Section 606.
was appeal ings to have that award set aside, and the action in which that being made and in which the Attorney General was ostensibly the defendant came before Sir John Carrington in the end His judgment was delivered on of 1900. 1st December of that year. It was in favour of the defendant, and the claim by the plaintiffs to set aside the award was refused by him. It was from that judgment that his clients now desired leave to appeal. An affidavit had been filed in support of the petition, which he thought it desirable now to lay before them. This was the affidavit of Thotons Howard, one of the plaintiffs. In it he stated that after judgment had boen delivered by Sir John Carrington in favour of the defendant, he consulted the late, Mr. J.J.Francis, K.C., counsel for the plaintiffs, as to the advisability of appealing therefrom, but Mr. Francis advised him that instead of ap-in pealing the plaintiffs should present a petition of right to Her late Majesty Queen Victoria. Acting upon such advice, he iustruoted Mr. Francis to prepare such petition, which the latter accordingly did, the same being completed on the 27th August, 1901. During the interval between the date of the judgment and the date the petition was completed, he frequently urged Mr. Francis to complete the petition. The petition was forwarded by his solicitors to their London agents on 14th September, 1901, for presentation to His Majesty the King in Council. On or about the 20th January, 1902, his solicitors seat him a letter which they had received from their agents, enclosing copy of a letter from Mr. Charles S. Murdoch, C.B., one of the officials in the office of the Secretary of State for Home Affairs, informing them that His Majesty was advised that the proper course to adopt was for the petitioners to apply to the Judicial Committee of the Privy Council for leave to appeal from the decision of the Court of Hong- kong, if, in the opinion of the petitioners' legal advisers, such leave was necessary and the case one proper for appeal, and that the was
-
|
this
Mr. Morgan Phillips-Yes; I think the fasts are sufficiently strong to enable me to Code came submit that special leave might be granted. into operation my clients were then actively In July, 1901, when proceeding with such steps as they were advised were necessary to enable them to appeal against the case.
The Acting Puisne Judge-You say that Mr. Morgan Phillips-I believe I am correct under the old Code there is no time limit?
In 000- stating that fact. The only section referring to the right of appeal is Section 18 of the Supreme Court Ordinance of 1893. clusion he urged, for the reasons shown, that the The Acting Chief Justice-It is not our Court make an order in the terms asked for. intention to make an absolute order at present, What we propose to do is to make an order calling upon the other side to show cause why the appeal should not be allowed. The only question is about the date. You understand, of course, the difficulty of bringing this matter After consultation, an adjournment was made before the Court as at present constituted. till Monday, 24th instant, at 10.30 a.m.
A census has just been taken of the popula tion of Cochin-China. Apart from the town of Saigon and a few cantous of Mois, the total figure is 2,909,776. The population of Saigon These figures show a notable is 47,577, of whom 5,475 are French and 300 increase The Almanach de Gotha for 1902 foreigners. gives the population of Cochin-China 2,262,000, and that of Saigon as 37,565.
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