1
894
Monday, 6th November.
IN ORIGINAL JURISDICTION.
THE HONGKONG WEEKLY PRESS AND
first.
But the Sui Tak Bank in sotion 353, pinning their faith entirely on section 463, says that section 458 applies only to the case of moveables. It is to be noted that they were in fact first in the field-their procedure having BEFORE SIR F. T. Piggott (ChinF JUSTICE). been commenced on 10th whereas that of the
▲ QUESTION OF PRIORITY, His Lordship delivered judgment on the question of priority raised on the two actions last week when the Eul Tak Bank and the Soy Kut Bank obtained judgments against Chau Tung Shang. In the former case Mr. Calthrop (instructed by Mr. Steavenson) appeared for plaintiffs and in the latter Mr. Pollook, K.C. (instructed by Mr. D'Almada e Castro, of Messrs. Brutton Hett and Goldring) appeared for plaintiffs
plaintiff in action 355 was only commenced on 11th. The law usually favours the speedy ored itor: yet he cannot prevail if his procedure is
erroneous.
L
Now the reason advanced for saying that section 458 does not apply to the case of immoveables is that section 457 provides that every writ against moveables shall be executed by the Bailiff," and that the words" two or more write" in 458 must naturally refer to the word "writ" in the section immediately proceeding it more especially as they appear to be linked by the reference to "execution by the Bailiff." It was further suggested that execution by a bailiff is appropriate only to the case of move- ables. Against this there are two points urged: 1st, the absence of the connecting word such," which is invariably used in drafting where one section is intended to refer to any subject dealt with in the section immediately preceding it.
And this is supported by a reference to the Code. No. 13 of 1873: in which section 82 (6) [now 457] begins “Every writ of Foreign Attachment against moveable property "—and section 82 (7) [now section 458 begina "Where two or more writs of Foreign Attachment issue." The first section is specific, the second general, and I do not think that, so far as these sections of the old code are concerned, the argument of the plaintiff in
action 353 could stand.
His Lordship said - Judgment in both these cases has been given for plaintiffs on the merits of the cases but the question of priority bas to be decided in this judgment as it affects both actius. The question of priority as between two writs of what is called “Foreign Attachment" in the Code of Civil Procedure was raised in two actions against Chau Tung Shang. I must say at once that the heading of this chapter is erroneous. It is a process for saizing property within the jurisdiction belong-old ing to a defendant out of the jurisdiction, without having recourse to the usual procedure of service out of the jurisdiction. This is made clear by section 453 (1) (b) which provides that one of the conditions precedent to the proce- dure being made use of is that the plaintiff has taken out a writ of summons against the de- fendant; but that the defendant is absent from the Colony or is concealing himself, and there- fore, cannot be served. It is quite regular to issue a writ of summons for service within the jurisdiction against a defendant who may be abroad, although it cannot be served at the time. Its object being to serve the defendant should he at any time be found within the jur| isdiction. Under this process it becomes use- ful in another way: where the cause of notion arose within the jurisdiction property belonging to the defendant in the Colony may be seized. This in principle resembles the Bootch proce- dure of arrestment to found jurisdiction. It is a very exceptional procedure, but under the circumstances of this Colony where much busi- ness is conducted with Chinamen, who come and go so e sily to Canton, it is a very valuable The question of priority must, whenever the defendant has many creditors in the Colony, be exceedingly important, but as the Code is now drafted it is not free from doubt in the case of the prosedure being made use of against immoveables. Every point which could throw any light on the meaning of the sections was put before me, the question being ably argued on both sides.
one.
In action 353, at the suit of Sui Tak Bank, the writ so called of "Foreign attachment' was issued on 9th October, the memorial was registered in the Land Office at 10 a.m. on 10th, and it reach d the bailiff for execution at 10.46 a.m on 13th.
In action 855 a to suit of Soy Kut Bank, the writ was issued on 11th October, resched the bailiff at 2.15 p.m. and was registered in Land Office at 3 on 11th.
The plaintiff in 353 contends that 'under sections 462, 468 of the code the registration of the memorial in the Land Office is the step necessary to give vitality to the writ: He did not in faot give the writ to the bailiff till 3 days after. The plaintiff in 355 contends that under section 458 of the code the important step is the handing of the writ to the bailiff for execution; his registration took place immediately afterwards.
The question is whether in the case of im- movables the registration in the Land Office or the handing of the writ to the bailiff for execution is the important step.
Now section 458 deals with priority of writs: it runs as follows:
I see
no reason to
suppose that anything was intended by the merely verbal unsatisfaction. in the new code. Secondly, the 2nd para. of section 458 which is new, provides that "no such writ." i.e., no such writ as is referred to in the 1st para. shall take priority over a writ of xecution" in an "action pending at the date of such writ of Foreign Attachment." Now if the word writ here were limited to moveable property there would be no similar provision in the case of writs against immoveable property. I now come to the argument that registra tion of the memorial in the Land Office is the essential to the vitality of the writ. Section 462 has the marginal note Execution of writ against immoveable property," which
the marginal note corresponds with
to
section
487' Execution of writ against moveable property " and obviously the first point taken is that the sections preceding 452 do not apply to execution against immoveables: -The 2nd point is also obvious that as be- tween two memorials registered in the Land Office priority is settled according to the time of registration: no express reference to this priority would be necessary in the code, were argument sound,
But the point of the argument of the plaintiff in action 353 was that this registration was essential to the vitality of the writ, because registration was always necessary in the case of execution against, immoveables; in other words that the execution by the bailiff in s. 453 was inapplicable to immoveables, as the power of the bailiff to execute depended on registration.
I think the solution of the question before me is to be arrived at by following out the train of thought suggested by this argument. I use this language as the wording of the Code is by no means free from doubt, and it is only after giving the matter prolonged consideration that I have been able to arrive at a 'conclusion. In the first place, as the writ issued under this shapter of the code is not an ordinary writ of execution, special provisions must be made for executing it.
Section 457 provides for execution by the bailiff in the case of moveables.
-[November 13, 1905.
By
reason of the thing were also in favour of this construction, and of its necessary consequences. Let us see how judgments are to be executed. Judgment for money is by saotion 371 to be enforced by attachment and sale of the debtor's property: the property liable to attachment being defined in section 377, and includes moveables and immoveabl «. section 394 the proper writ for execution is to be issued by the registrar, and by section 399 the court is to cause the property to be attached in the manner afterwards prescribed. seotion 500 moveables are to be attached by actual seizure by the bailiff; and by section 401 the attachment in the case of immoveables is to be made by prohibitory order, which by section 406 (2) is to be served on the defendant, and is to be registered in the Land Office if the property is already registered.
·
By
The form for execution, No. 30, addressed to the bailiff, provides for seizure in the case of moveables, and the service of prohibitory order
that in the case of immoveables-form 32, being issued by the registrar on the application of the party. Turning now to the procedure called Foreign Attachment," section 462 provides for the case of immoveables à registra. tion clause pure and simple. There must be some analogy between the process of execution in the case of this attachment and in the case of judgments. But if the argument of the plaintiff in action 353 is sound, the registration alone would be sufficient.
to
The writ issued under section 453 is “of
general attachment" against all the defendant's property in the jurisdiction, moveable, and immoveable, and it is in form 38 addressed does not contain express instructions as in the case of form 30, the ordinary writ of excution. The meaning of section 457 must, therefore, be that in the case of move bles the plaintiff is to seize, for there would be no other way in which he could execute the writ. But the process by way of prohibitory order is apparently not required either for moveables or immoveables for there is no reference to it. But in the case of immoveables there is to be regis.
the bailiff. This form is short and
tration in the Land Office, apparently also whether the property is already registered or not, if it is possible for immoveable property not to be registered. This registration there- fore stands in lieu of the prohibitory order. But it is impossible for it to stand by itself in lieu of the issue of the writ to the bailiff. If it were so the form of the writ would be meaningless.
The writ must be issued; and as it is addressed to the bailiff it must go to him; and as it must go to him priority must be decided in accordance with the rule laid down in s. 458 (1), although the writ which reached the bailiff second should reach the Land Office first. This, therefore, is - the broad principle which this judgment must be held to decide. But in the case before me the facts are different, for the plaintiff in action 353 registered his memorial before handing the writ to the biliff. Pursuing the analogy between the two procedures this is as if the plaintiff were, in the case of an ordinary judgment, to get the prohibitory order issued before the writ of execution is in the bailiff's hand. In this case, therefore, there is no sneh attachment as is contemplated under this chapter of the Code; for all attachments must be by pro- cess of Court. If Mr. Calthrop's ingenious argument were sound, such a course would inevitably be justified; but it would, as I have already said, render the words actually used in the sections and forms of the Codo meaningless,
In
The real difficulty in the case arises from the omission of many words in the section which would have made their meaning clearer. addition to those already noticed, there is this further omission, that although the writ to the There is no similar provision with regard to bailiff requires him to attach, there seems, in the writ against immoveables. But I have the case of immoveables, to be no further step already constructed the first words of section which he is required to take. Undoubtedly 448 (1) as not applicable to writ against move.
this is an argument in favour of the plaintiff in ables only, and it therefore follows from this action 353: but whatever may be the reason that the works which determine priority for this omission, I am clear that the for- according to the date and time at which they mality of handing the writ to the Bailiff can. reach the hand of the Bailiff for execution
not be omitted and that the reception of this In deoiding, this question the most natural carry with them an implication that such writ by the balliff is a necessary initial stop course would seem to be to refer to this section writs against immoveables are also to be execut-in all cases, whether the property attached and establish the priority according to it, ined by the bailiff." This of itself might not be moveables or immoveables, and therefore which case the Boy Kut Bank would come perhaps have decided the question unless the that in all cases priority to be determined.
(1) Where two or more writs issue at the suit of different plaintiffs, they shall take priority respectively according to the date and fime at which they reach the hands of the bailiff for execution.
T,
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