May 13, 1907.]
SUPREME COURT.
Monday, May 6th,
IN APPELLATE JURISDICTION.
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BEFORE THE FULL COURT.
CHINA OVERLAND TRADE REPORT.
303
R. D. Atkinson (of Messrs. Descon, Looker, which they kept stored in the Hop Yick and Deacon), represented the Opiam Farmer.
His Honour Mr. Justice Wise said :-In this case an order nisi was granted on January 28th, 1907, and the whole question, so far as I can see, relates to the jurisdiction of the Magistrate. On July 23rd, 19.6, su infor- ¦ mation was laid before the Magistrate by one G. Hoggarth, stating that certain opium liable to forfeiture was concealed or deposited in the godowns of the Kowloon Wharf and Godown | Co., Ltd., and he prayed for a warrant to seise. The information mentions a complainant who is ATPEAL AGAINST A MAGISTRATE'S DECISION. to point out to the applicant the opium The appeal was decided in which the Build-I suppose the complainant sad the applicant ing Authority was respondent and Fang Chun- are the same. A warrant is made out in the yuen appellant.
terms of the informations and the applicant The Attorney-General, Mr. H. H. J. Gom-returns that he has seized five cases of muriate ports, instructed by Mr. G. E. Morrell, Crown morphia under the warrant, and asks for their Solicitor, appeared for the Building Authority, forfeiture. On July 26th, 1906, the Magistrate the appellant being represented by Mr. M. W. makes the following order-That the fire Blade, instructed by Mr. D. V. Stevenson (of eases of muriate of morphia herein be forfeited Messrs. Descon, Looker and Deacon).
and delivered to the Opium Farmer." Up to that date, so far as i can see, there is no evidence that muriate of morphis is opium, and it is difficult to understand why th return to the warrant (that is the notice of seizure and application for forfeiture) should not agree with the information and warrant. Therefore, up to that date, I do not think the Magistrate on the evidence had any jurisdiction. AB to apparent possession I think that the Magistrate was wrong in thinking that the stuff was not in the apparent possession of anybody.
The Chief Justice stated that section 229 (3), ofthe Public Health and Building Ordinance expressly declared that the commencement of works without approved plans as required by section 222 was a nuisance, for which the remedy was abatement under section 230. The first conviction of the magistrate, though bad therefore stood, and there was now no room for a second conviction under section 230.
The Puisne Judge held the contrary opinion. Mr. Slade asked for costs.
Mr. Gompertz-The Building Authority is the Crown; costs cannot be given against the
('rown.
The Chief Justice-Is there not a fund for 008 a iu a case such as this? In some Colonies
there are.
Mr. Gompertz --No. Te Chief Justice-But the Crown cannot eecape its obligations.
Mr. Gompertz-i could not have asked for costs bad I succeded. Your Lordship would not have granted them.
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The Chief Justice-I do not see why I should not. We must give a final decision now, and then you can take what steps you like. It seems to me as if the Building Authority was an independent Board created by the Legisla ture for the purpose of looking after the Sanitary work and acting independently of the Government.
Mr. Gomperts-There is no Building Board. The Puisne Judge-The Building Authority is the Board.
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Mr. Blade-Under the Publio Health and Buildings Ordinance the Building Authority was appointed in the person of the Director of Public Works or some other person appointed by the Governor in Council, and he is directed to carry out certain duties by the Ordinance. As the Building Authority institutes pro secutions we may presume there is a fund for that purpose. We cannot go into that, but if there is a fund for prosecutions there should be one. for costs when the prosecutions are unsucessful. The question is whether you have power to give costs against the persou who has instituted these proceedings. That person is not the Crown; he is thế same as an excise officer and can be made personally liable.
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The Chief Justice-But these proceedings were not instituted by Mr. "Smith," Building Authority.
Mr. Blade-By the Building Authority; there could be more than one at the same time, I think. But that is immaterial; he is separate from the Crown.
The Chief Justice-If it is a separate body. soting independently of the Government, I think we can give costs.
Mr. Gomperts-Look at the Ordinance. The Chief Justios-Well, we must go into it. Mr. Gomperts-In this case the Building Authority is the Director of Public Works,
After hearing a case quoted by Mr. Gompertz the Chief Justice intimated that the point would have to be considered. --
THE MURIATE OF MORPHIA CASE, Judgment was given in thisappeal. cir Heary Berkeley, K.C. instructed by Mr. J. Scott Harston (of Messrs. Ewens and Harston), appeared for the owner of the morphis, Mr. Hoffmann; and the Hon. Mr. H. E. Pollock, K.C., and Mr. M. W. Slade, instructed by Mr.
His Honour the Chief Justice said (in part) t is clear that the Magistrate has no juria diction to issue the notice in respect of anything but opium: nor has he jurisdiction to order its forfeitars under section 34 (2) even in the care of opium, unless it is not in the possession of some person.
Now in this case first the notice, and then th⚫ seizure and the forfeitars were of "muriate of morphia." The Court officially knows no chemistry and cannot hold in the absence of evidence, and there was none given before the Magistrate, that "mariate of morphia" is opium." It does not know whether it is a constituent or alkaloid of opium, sud even if it did, section 39 does not apply to constitueuta or alkaloids,
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Was
Godowns. The firm obtaine! aivanoes on its consiguments of flour from the Fat Keo and Hang Sheung Firms, and from the Yan On Insurance Co. and also from Mrs. Musso, the owner of the godowns. In consequence of financial difficulties the managing partuor of the firm, Leo King Shek, diappeared, and the firm W& made bankrupt, the Offstal Receiver being appointed Trustee. Ho Sam, the manager of the Hop Yick Gotowns, also disappeared at about the same time. Im- mediately after the disappearance of the principal actors in the transactions which have led to these proceedings, it was dis- covere | that very little four remained in the godowns, and what was there had been seized by Mrs.
Museo. Some of the fur subsequently found in the Po On go- downs, deposited in the name of Chan Wai Chee Ог of Chai Koo. At the conclusion of the plaintiff's evidence the counsel for the defendants submitted that there was no case. After taking time to consider I came to the conclusion that at the stage of the proceedings the only question before the Court was whether the plaintiffs had proved their title and that I should not call on the defendants to proceed to the proof of their ones; and that therefore the motion was properly made. This judgment therefore results from the motion. Where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained. This is the provision contained in Section 18 of the Sale of Goods Ordinance No. 4 of 1896, which is reproduced from Section 16 of the Sale of Goods_Act, 1893, of the United Kingdom. I pass to the question whether in this case the goods the subject of the pledge haye been ascertained. The first point which occasions me some difficulty in connexion with this question is this:--It was admitted, and the facts are too strong not to warrant the admission, that it was possible, if not probable, that the same dour was pledged both to the Fat Kee and the Hang Sheung and also to the Yan On, probably also to Mrs. Masso: and I have been puzzled to see clearly how such a double pledging is consistent with the ascertain ment which is necessary to constitute a valid contract, because it seems to be that it was this very absence of direct ascertainment by marking, as it was suggested the bags of four should have been, or by some other means, which led to✨ the possibility of this second pledging, assuming it to have occurred. This point was re-argued at my request : and to a certain exteat my dif. culty has been removed, though not entirely. It seems to me possible that the introduction of the godown keepɔr as an almost inevitable intermediary in the transactiou mikes it unwise for me to attach too much import- a000 to this consideration; as I conocivo that it is possible for such marks as
to On both the grounds of the it is practicable adopt and to be motion therefore I am of opinion that the put on the bags by the first pledges, to be Magistrate had no jurisdiction to make the removed by the godown keeper before the order he has done, I agree that this is one of inspection by the second pledges; and so on. I those cases in which the question of jurisdiction may point out in this connexion that in Meyer- is closely allied to the question of construction. stein v. Barber (L. R, 2. C. P. at p 52) Willes But, if I were compelled to decide which is the J. indicated that he was by no menus clear proper way of dealing with this case, I should that the delivery of the key of the warehouse unhesitatingly say that the questions raised wro was really the symbɔlical delivery of the goods entirely concerned with jurisdiction, for, as to inside that it is generally assumed to be, for the first point, he took no evidence to show this reason: that the warehouseman may make that muriate of morphis is opium: and on the a duplicate key and give that to the second second point, the notice itself shows that the purchaser, The train of thought implied in fact on which the Magistrate's jurisdiction is the doubt is the same as that which is in my based was non-existent in the case.
mind on this question. But although I still bave doubts 1 am not prepared to bass my decision upon it, and I am not disposed to hold that of itself the second pledging "is conclusive of non-appropriation. The question is therefore this-doos what took place by way of visit andỉ inspeo ion by the pledgees amount in law to AG ascertainment of the goods pledged? From the evidence it is clear thai however much care the two different pled geen took to His Lordship delivered judgment in the
see that there was more than enough four in sation in which there were so many claimants
the godown to cover their respective losas, | for 10,000 bags of flour. He said (in part) : there was no sorting out, no reparation of the In this case the title to the property in a bags on 'which the advances had been made considerable number of bags of four, to which from the man of the bags in the godown: and there are many olaimants, is in iams. Stated | I therefore have to see whether this is a suficient very briefly, the material facts are thess. The ascertainment within the decisions on the Kwong Yik Wą were large dealers in four subject. So far as this part of the case in con-
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Secondly, the muriste of morphia (even if it were legally opium) was in the apparent possession of the Godown Co. It was in their possession, though under the definition and for purposes of the Ordinance, it was also in the possession of Hoffmanu and Co.
$4
The Excise Officer has in the first place used opium and "muriate of morphis · 38 convertible terms: and secondly he has made a confusion between possession and property, for he said in his evidence that he was quable to ascertain the, owner of the morphia. l'he drift of the section has been misunderstood. I have no doubt that it applies only to the case of “unclaimed opium," that is of “derelict opium.”
IN ORIGINAL JURISDICTION.
Barork 818 FRANCIS PIGdott (Chier JUSTICE).
GODOWN WARRANTS.
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