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422
a
[December 16, 1905.
THE HONGKONG WEEKLY PRESS AND defendant said he could supply the rifles, but premises at a rate of $750 a month. A great to argue this question of stay, if he is so alvised, would require a deposit of $200. On the 26th deal had been made by his learned friend with He will, of course, not be heard on the motion January he paid the deposit and returned to reference to the initial letters between the for leave to appeal. Dealing, now, with the Canton. In March 1905 theʼrifles had not been parties, and there was no doubt tha' originally motion before us. the respondents relied on the delivered, so he returned to Hongkong to see the negotiations between the plaintiff and the practice under O. 58, R. 16, and cited several the defendant, who then said he could not defendant were based upou the assumption that cases which seem to establish the rule that execu deliver them. He applied for the return of the the defendant would go into possession of a tion as to costs will not be stayed unless the res- $200 deposit, but the defendant stated that he portion of the premises as soon as a certain poudents' solicitors dealine to give an undertak- had only retained $100, and that his brother-in-partition was erected. All these arrangements ing to refund any costs subsequently found dus law had the other $100. The plaintiff was were entirely superseded in the month of May of to the appellant in the event of his succeeding. advised to obtain the $100 in the possession of this year. He would refer his Lordship to a letter It does not seen necessary to examine the c1808 Ho Kia San, and then return and the defendant of the 10th May wherein was a distinct reference at any length in order to ascertain whether this would hand over the other $100. He obtained to all previous correspondence which had taken is the usual rule, or whether the Court has a money from Ho, and on again applying place between the parties. He submitted that discretion as to acting on it or not, because we the defendant received $50, leaving That letter from the Robinson Piano Company, are of opinion that the rules which govern the balance due of $50. Subsequently the which was followed only six days afterwards by interpretation of that order have no application plaintiff again visited Hongkong and went to Messrs. Wilkinson and Grist's, enclosing a draft to the present case. The principles which the defendant's shop. There he was threatened lease, was as absolutely clear and conclusive as goveru stay of execution for bosts, where the with arrest for theft and brought this action.
anything could be that the plaintiff then took appeal is of right, do not of necessity apply His Lordship-Who is the rebel P
up the stand, no matter what the previous where leave to appeal is to be obtained Iu Mr. Almada-My friend's client.
negotiations might have been, that the lease of such a case the Court has to go, to a certain His Lordship-Someone is, I can see.
the whole premises in question was to begin extent, into the merits of the case, and Continuing, Mr. Harding said his client did from the 1st November. He did not dispute requires a prima facie case to be established not deal in pills. He had never ordered those that there was another idea originally, but that there is at least a possibility of the in question, and never had them.
the Robinson Piano Co. said emphatically that judgment being reversed.
This being 0, The case was adjourned.
the lease was to commence from that day, and the right which the successful party in obviously instructed their solicitors to the same the Court below has to retain the costs Ifect. From the 10th May onwards the he is entitled to under the judgment, caunot position which the plaintiff took up was that the be put so high as in the case where the lease of the whole premises was to be from the
unsuccessful party avails himself of his right to 1st November; and notwithstanding that coun- appeal. We think that whatever the exact rule sel for the plaintiff attempted to raise a some- as to the solicitors undertaking may be, it is
based on the fact that prima facie the judg letter of the 30th June regarding the partition-ment of the court below is right. There the ing off; if his Lordship would refer to the same gentleman's letter of the 5th July, he would and it quite clear that it was not as his friend suggested.
Tuesday, 12th December.
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. WISE (PUISNE JUDGE). what ingenious argument on Mr. Stophous
CLAIM FOR RENT,
The Robinson Piano Company sued H. Price, lately carrying on business as a wine and spirit merchaut at 12 Queen's Road Central under the style of H. Price and Co., to recover the sum of $375, being for one month's rent from the 9th October to the 9th November, 1905, of the eastern part of the ground floor of Connaught House.
Mr. M. W. Slade, instructed by Mr. E. J, Grist (of Messrs. Wilkinson and Grist appeared for the plaintiff, and Mr. H. E. Pollock, K.C., instructed by Mr. M. J. D. Stephens, represented the defendant.
Mr. Slade stated the claim was for rent in respect of a portion of the premises formerly occupied by the Robinson Piano Co. which were let to the defendant. Practically the whole case bore on the letters and documents which passed between the parties.
Counsel here proceeded to cite passages from the letters in question, which dealt with the arrangement arrived at regarding the lease of the premises, partitioning of same, etc.
W. J. Robinson deposed to being managing director of the Robinson Piano Co., and the premises in question were formerly in his Occupation under lease from Mr. Fung Wa Chun. His lease was signed after the negotia. tions with Mr. Price. $325 rent for half the premises was a fair sum.
Cross-examined-Witness could not remem- ber whether he told his solicitors to put the 1st November in the lease. He first heard from the Land Co. that he could not get into his new premises until after the 'st November, after his return from America. He consulted bis solicitors on this, and believed they had communicated with Mr. Price's solicitors. When he returned to the colony he endeavoured to get a new clause inserted in the leage to the effect that the demolition of the brick wall should be carried out. at Mr. Price's expense,
Mr. Pollock submitted that. the plaintiffs had not made out a case nf all. As his Lordship would see, they were sueing on a writ of summons-now amended --for the rent of the premises for one month from the 10th October to the 9th November. The premises were describ- ed correctly in the writ as being the eastern half of the ground floor of Connaught House; that was to say that the plaintiffs were suing for part of premises. The draft lease was before his Lordship, and he would see that there was no variation in that, although, as his friend mentioned, there was a dispute as to which side of the premises should be occupied. As mentioned in the first letter it was the intention of the parties, clearly expressed on the face of the lease, that the tenure of the whole premises should commence from 1st November, 1905. His Lordship would see, by referring to the draft lease, that the tenure contemplated was an entire and undivisable tenure of the whole
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His Lordship-What do you suggest he intended?
Mr. Pollock He suggested that it referred to the previous arrangement with regard to the partition.
In conclusion Mr. Pollock said that the only question left over until Mr. Robinson's return to the Colony was the question with reference to the matter of a partition.
His Lordship reserved judgment.
Wednesday, 13th December.
IN APPELLATE JURISDICTION,
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE) and Mr. A. G. W18E (POISNE JUDGE).
TAM MAN SAM V. TAM YAU AND CHEUNG.
SAN PANG.
This was a unfice of motion to vary an order made in the Court of Summary Jurisdiction on November 4th. Mr. M. W. Slade (instructed by Mr. St-avenson) appeared for the appellants, and Mr. H. E. Pollock, K. C. (instructed by Mr. C. E. H. Beavis) appeared for the respondents.
In delivering the judgment of the full court. his Honour the Chief Justice said:-The defendants obtained judgment in summary jurisdiction in an action brought to recover $500 as return of a certain deposit, and $500 damages. The plaintiff applied to the Fall Court for leave to appeal in respect of that part of the judgment only which related to the return of the deposit. This application waS made exparte: the plaintiff at the same time applied for the stay of execution. The defend- ants afterwards moved exparte to vary the order, and obtain-d a rule to show cause. This was argued before the Full Court; the Full Court has, therefore, sat in this matter ou three separate occasions. We have some doubt whether the application for such should have been made exparte, as it is obviously a question on which the respondents may have something to say. As, however, the respondents bare not acquiesced in the order, any apparent irregula. rity (supposing it to be such) can be looked upon as waived, and the motion before us may be taken as if the appellant had obtained a rule to show cause, and the argument on the motion to vary the order is the argument on the rule. We think that, in future, in order to save costs and multiplicity of motions, that notice should be given to the other side if the party desiring leave to appeal intends to apply for a stay of execution. It will then be open
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prima facie is the other way, and it therefore seems more reasonable that the stay of execution as to costs should be absolutely on the discretion of the Court. I agree that in ordinary cases where only part of the judgment is appealed from, the stay would only be as to so much of the costs as relate to that part of the judgment, but this must be included in the discretion which the Court is called upon to exercise. My learned brother thought, and intended to make such order; and on the hear- ing of the respondents exparte application I also thought that this should have been the order. But then, as I expressly stated at the time, I was under the impression that the costs of the two issues could be divided. Now when the case is threshed out by both sides, it' appears that the costs are incapable of division, except in regard to a very minute sum, whether they will go to the appellant if he succeeds is another matter to be determined on the hearing of the appeal. But as there is a possibility that he may get them, the proper order is that there should be a stay of execution as to costs. We think the justice of the case requires that the costs of this application be costs in the cause.
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IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE),
APPLICATION FOR JUDGMENT.
In the case in which the Foo Ching firm claimed from Chan Lai Nang, otherwise Chan Yuk Chung, the sum of $5,000 for money advanced, Me. 4. E. Polleck, K.C., instructed by Mr. R. Harding (of Messrs. Ewens, Harston and Harding) applied for judgment.
His Lordsip
Mr. Pollock said the application was made under the provisions of the code relating to foreign attachment. A writ of foreign attachment against the defendant's property was issued on the 27th of last month, and that had to be advertised under the provisions of section 447 of the code. would find an affidavit on the file by Mr. Harding, of Messrs. Ewens, Harston and Harding, the solicitors for the plaintiff, stating that advertisements had appeared twice in the Government Gazette and another local paper An application was made to his Lordship yes- terday in Chambers under section 469 for leave for the plaintiffs to proceed to establish their claim, and the order was on the file.
His Lordship-There should be some state- ment that attempts have been made quite recently to find the defendant.
Mr. Pollock-I think that will appear from the evidence. Perhaps it would be useful if your Lordship gave a ruling under section 469 of the Code; you will remember that the solicitor appearing for the plaintiffs made for the opposite party to appear on the motion an application yesterday for leave for the
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