April 18, 1907.)
be subject to a further fine. Then he might put in fresh plans which were incompleta and again be fined. Disobedience to a valid notice must be held a continuing offence,
Their Lordships reserved their decision,
WHAT IS OPIUM?
Sir. Henry Berkeley, K.C., instructed by Mr. J. Scott Harston (of Messrs. Ewens and Harston) moved for a writ of a crtiori in the case in which the Opium Farmer claimed certain esses of muriate of morphia said to be in transit to Shanghai. Hon. Mr. H. E. Pollock K.C., and Mr. M. W. Slade, instructed by Mr. R. D. Atkinson of (Messra. Deacon, Looker and Dascon) app ared on behalf of the Opinm Farmer to oppose the motion.
Sir Henry Berkeley objected to his learned friends who appeared for the Farmer being in attendance to oppose a motion made absolute. Only persons who were interested had a right to appear, and the only persons interested were the prosecutor and the defendant The Opium Farmer had no locus standi to oppose this application.
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CHINA OVERLAND TRADE REPORT.
which must appear on the face of the order is that the opium ordered to be forfeited was ant in the apparent possession of anyone. These proceedings have been conducted irregularly, and the order is bad in form on the Fery face | of it.
Mr. Slade said the rules under which a writ¦ of certiori was granted were always strictly enforced. Unless steps were correctly taken in the application for the procedure of the writ, an order was never made absolute.
Decision reserved.
IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE.)
THE HIGH-LEVEI. TRAMWAYS; INJUNCTION DISSOLVED.
Mr. M. W. Slade, instructed by Mr. J. Scott Harston (of Msers, Ewen and Harstou) moved on behalf of the Hongkong High Level Tram ways Co. Ld. and Messrs. J. D. Humphreys and Son, defendants, for the discharge of an injonction granted by his Lordship on March 29th, 19 6, to the plaintiffs, Mr. D) E. Brown aning on behalf of himself and other shareholders in the said Tramway Co. He slan moved that the undertaking given by the defendants be discharged on the ground that the defendants had daly complied with the terms of the order and the necessary consent of the Governor-in- Council had been obtained to the absolute assignment by the defendant Company (in liquidation) of the whole of their undertaking to the Peak Tramways Co Ld. The whole of the facts were set out in Mr. Humphrey's affidarit which showed tha' the PCOSSAT. resolutions had been passed; that there were no dissentients the whole Company agreeing to the transaction.
The objection was not upheld and Mr. Pollock proceeded. He said he and his learned friend, Mr. Slade, appeared to show canse against the writ of a certiori being granted, and against their Lordships making an order absolute to quash the order made by the magistrate under section 59 of the ordin ance of 1891. Their Lordships would probably remember the two grounds pat forward in the notice of motion filed on behalf of Mr. Hoff. man for quashing the magistrate's order. 'ne which was alleged was that muriate of mrphia was not opinm within the meaning of that term as used in section 2 of Ordinanca of 1891. The other ground alleged in the notice of motion was that by reason of section 39 of Ordinance 8 of 1891 the magistrate's power of forfeiture only extended to "pium not found in possession of any person, whereas Mr. Slate produced the Gement Gazelle these four cases were found in the posses-setting forth the notice,"
ice, orderis Loniskip sion of the Godown Company B.S agents made an order discharging the injunction. for Hofforan. Dealing with the first point they submitted that it was a question as BEFORE Me, A. G. WISE (PUISNE JUDGR.) to whether their Lordships were competent to enter into the point. It an application of this Bort, which was made by way of a certiori, they submitted that the finding that this substance which was ordered to be forfeited was opium, was a question of fact, and the only proceedings so far as one could see by which that question of fact could be questioned, would be by way of appeal to the Full Court in the ordinary way from the decision of a Magistrale
Was
The Chief Justice-When discussing the application in Chambers we thought it construction. Since then we feel that a notice which enables you to confiscale opium does not enable you to confiscate muriate of morphia and that ex facie the notice is 1ad.
Mr. Pollock-The question is one of juris diction. Unless the other side can attack the ma gistrate's finding on the question of jurisdiction, that would be a matter which could not be gone into by way of a certiori. Luder section 39 of Ordinance 8 of 1881, the magistrate had jurisdiction to forfeit opium, therefore it was an integral part of the magistrate's decision that the substance he ordered to be forfeited was
opium. Opium was a generic name which included many substances.
AN ASSIGNMENT QUESTION,
His lordship delivered judgement in the case in which Chan Wo and others sued Chro Yum and others for the payment of a sum of $4,258 out of Court.
Hon. Mr. H. E. Pollock, K.C., instructed by Mr. C. F. Dixon (of Messrs. Hastings and Hastings) appeared for plaintiffs, and Mr M. W. Slade, instructed by Mr. F. P. Hatt (of Messrs. Brutton and Het() for defendants.
His Lordship said : In this case the plaintiff « ara suing for a sam of money in Court, amonnt. ing to $4 258, of which a sum of about $ 1,000) is admitted by the defendants, so that the sum at issue is trifling. The claim arises out of an assignment, dated March 2nd, 1899, by which the defendants assigned the Wah Hing Loong business to the plaintiffs, and the question to be | decided is whether such assignment includ d¦ certain debts alleged to be das to the Wah Hồng Loong by the Wa Tai and Fung Shing firms. It is admitted by the plaintiffs that the assignment as originally drafted did not include these debts, bat it is stated that at the request of the first plaintiff the assignment was altered before signature so as to include them. 'I her fore the The Chief Justice considered that when point in whether the alteration was made before the notice mentioned muriste of morphis, the signature or after. This, of course, amounts to magistrate should have put the paper aside an allegation of fraud by the defendants, and said he had no jurisdiction. Then the and therefore they have to prove frand, bat notice could be amended for the seisure of supposing evidence of fraud (taken for what opium, in which case he would have jurisdiction. | it is worth) is produced, then it seems to Sir Henry Berkeley then proceeded to quote be that a man who sues on an admittedly authorities to rebut the points raised by altered document has to prove that the alters- the other side,
tion was made befors signature and not after It is clear from the document itself that at the time it was made these debta were looked upon as bad debts, and it is difficult to understand why the first plaintiff should insist on their inclusion. He admits that the price previously agreed to be paid by him for the business, etc. excluded these debts, and he gives his reganos for it, bat his evidence on the subject of the alterations and his reasons for it hardly seem satisfactory, and, what is more, he handed orr his security for the Fang Shing debts to Chen Yum. Chan Wo's socountant, who wrote the assignment, also supports his master as to the alteration. This pesotically is the evidence for the plaintiff. On the part of the defendants it
The Puisne Judge--Under the warrant the Farmer could apparently arrest all the people in the godown.
The Chief JusticeEither by himself or his agents.
Sir Henry Berkeley-In order that the magistrate could order the seizures of this opium two conditions precedenty must appear on the order. Firstly, opium must be ordered to be forfeited. He has no jurisdiction to order the forfeiture of muriate of morphia. If therefore, a magistrate asuming to act under section 39 orders the forfeiture of anything except opium that order is bad, and would be quashed" at tertiori.
The second-condition
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was of course contended that the alteration was made after signature and it was pointed out that a document produced by the plaintiffs as a co y of the original assignment was at any rate not sa exset copy, and in one place there is a considerable variation. Chan Yam also denies the genuineness of the signatures at the and of this alleged onpy, and states that it is a false book altogather. The assignment was advertised by both parties and the wosk spot in the defendant's case is that neither of the advertisements make any reference to the exclusion of the Wai Tai and Fang Shing debts, and Chan Yam's explanation is not altogether satisfactory. One explanation given is that it was unn-cessary to refer to the exclusion of debts in the advertisements, as it was already referred to in the balanos sheet, and the other is that the first plaintif objected to the reference. Tsang-Tung-ka also denies his signature to the alleged oopy, as also does Tsang Sang-kui. On the whole, I am of opinion that th balance of probability lies with the defendants. The plaintiffe have not established their case to my satisfaction. I pre- sume they will get their $3,000, sɔ there is very little left to fight for. Ja igment for defendants and costa.
Tuesday, April 9th.
IN SUMMARY JURISDICTION.
BEFORE MR A. G. Wish (Puiss Jungg).
MISSING CHATTELA
Wong Hing sued An Wai to recover 850 damages for wrongfully depriving the plaintif of a wooden safe and its contents including money and other articles, He also claimed the return of the safe, goods, articles and things or payment of $600, their value, and the aponiutmant of a receiver of the said articles.
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Mr. R. A. I seding appeared for the plaintiff und the. *. Holborow (of Mosses. D soon, Looker and Deacon) for the defendant,
His Lordship --- You claim damages
Tor wrongfully depriving, and return oĹľue ?
Mr. Harling - Yes.
detaining.
His Lordship-And you claim damages for
Where is your authority for that ? Mr. Harding admitted having none. Mr. Holborow-My friend's sole claim on the writ is for wrongfully receiving or wrongfully detaining. He has got the goods.
Mr. Harding-They are in Mr. Howell's possession pending the result of the action.
His Lordship-There was an application to me for the appointment of Mr. Howell an receiver without security. He was to remOTO the goods. 'as that been done?
Mr. Harding Yes. He has everything with the exception of two account books. What I I
«k now in for
an order for the delivery up receiver.
of those things by the
of that kind from me, you can't
His Lordship-You won't get an order
from m».
got it I want an order drawn up stating that a reiver has been appointed first of all. Mr. Howall—I have that order, my Lord. His Lordship -I haven't seen it. The order was produced.
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Mr. Harding-The defendant was the tenant of the the third floor of 284 Queen's Road Central, and fifteen months ago he let one of the rooms on this floor to my alient.
His Lordship—Here's another point. Mr. Howell is plaintiff ; now he's receiver.
Mr. Harding-He is receiver only for the time being.
His Lordship he order doesn't say so. Mr. HardingThat's the usual order made. His Lordship-It may be, but I don ́t think it's right. I have been reoirée in a great many cases in this Colony.
Mr. Harding stated that when his client went to Canton st the beginning of Maroh he left his goods in a room rented from the defendant. When he returned he discovered strangers in possession, sad found that his goods had been remɔred.
His Lordship-Your client psid $600 rout for one room?
Mr. Harding-Y❤.
His Lordship-That's sil I could get for house before.
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