24
SUPREME COURT.
Monday, 15th July.
IN APPELLATE JURISDICTION.
[BEFORE THE FULL COURT.]
CHAN WO AND OTHERS V. CHÂN YAM AND OTHERS,
In this case the appellants (plaintiffs) were represented by Hon. Mr. H. E. Pollock, K.C., instructed by Mr. C. D. Wilkinson (of Messrs. Wilkinson and Grist), and the respondents (defendants) by Mr. M. W. Slade, instructed by Mr. G. K. Hall Brutton (of Messrs. Brutton and Hett).
THE HONGKONĠ WEEKLY PRESS AND
The application was for leave to appeal to the Privy Council against a judgment delivered by the Puisne Judge. The petition for moliou showed that on April 8th, 1904, the petitioners filed their statement of claim in this action, claiming that the sum of $4,258 paid into Court, being part of a sum of $12,000 which represented & d-bt due by the Wah Tai to the Wah Hing Lung firm, be paid to the petitioners as the assignees of the said debt under an assignment from the respondents as the partners retiring from the Wah Hing Lung firm. The respondents duly appeared ou June 28th, and filed their statement of defence in which they denied the assignment of the said debt, and slating that they the respondents) and the petitioner, Chan Wo, as the partners retiring from the Wal Hing Lung firm were entitled to the said debt due from the Wah Tai to the Wah Hing Lung, but that they were willing to make certain payments to the petitioner, Chan Wo. The action was heard before the Puisne Judge sitting in original Jurisdiction on November 28th, 1906, and on March 13th and 14th, 1907. On April 8th His Honour the Paisne Judge delivered judgment and pronounced a decree in the action whereby he directed that judgment be entered for respondents (defendants) with
that the costs, finding inter alia
Lo
said the
debt due by the Wah Tai firm Wah Hing Lung had not been assigned to the petitioners, but was the property of Chan Wo and the respondents as the old partners of the Wab Hing Lung. On July 1st and 2nd, the petitioners appealed to the Full Court from the said judgment, when their appeal was dismissed with costs and the judg¦ ment including the said finding was confirmed, The petitioners were precluded by the judg- ment of His Honour the Puisne Judge, and of the Full Court, from recovering from the respondents the sum of $6,0) which also forms part of the Wah Tai debt of
the from recovering $12,000, and which is at issue in this action which latter sum amounts to only a few hundred dollars. The petitioners f-lt themselves aggrieved by the said judgment and decree, and were desirous of appealing therefrom to His The said judgment Majesty in Privy Council. and decree involved a sum or matter at issue, or a civil right, exceeding the value of £500. The petitioners sought leave to appeal, and asked that pending it excecution of the said judgment and decree be suspended.
sum
Mr. Pollock-We are moving formally this morning for the purpose of saving time, there being some doubt as to the construction of one of the Privy Council rules as to whether we would have to apply to the Court within fourteen days, or that the petition should be filed within fourteen days. I would ask your Lordships to fix a day.
The Paisne Judge - We'll fix a day when it suits us later on.
The Chief Justice-We'll fix it by agreement. Mr. Pollock- I don't know whether you could give a ruling on the point as to whether a petition has to be filed within fourteen days, or whether the application has to be made to the Court within that time. It would be convenient if the practice could be settled.
The Chief Justice-We'll settle it:
THE BUILDING AUTHORITY t. FUNG
CHUN-YEN.
An appeal on the question of costs in this case was heard, the appellant being represented by Mr. M. W. Slade, instructed by Mr. D. V. Steavenson (of Messrs. Deacon, Looker and
Deacon), and the respondent, the Building Authority, by Hon. Mr. H. . J. Gompertz, Attorney General, instructed by Mr. G. E. Morrell, Crown Solicitor.
Mr. Slade-As to the question whether or not co-ts can be given against the Building Authori- ty, I am prepared to argue that the Building Anthority is an authority against whom costs can be giren, I find there is a case in which it was held that costs can be given against the Crown, because the Crown was given the right to appeal.
Mr. Slade then referred their Lordship to certain sections in the Magistrates'rdinauce, and to other authorities setting out the powers of the Fall Court, in one of which it was shown that the Full Court might make sach order as to costs as to the Court might see fit. Power was given the Crown to appeal, and the Crown, just as any other party, was bound by the words of the Ordinance. The law on the point was plain where the right and liability wera conferred together, the Crown could not take the right without the liability.
The Chief Justice bere intimated that the Court would hear the Attorney-'jeneral.
Mr. Gompertz-The Building Authority is the Crown-
The Chief Justice-You must assume that. Mr. Gompertz-Yes, my Lord. Your Lord. ships are sitting as a Court of Appeal in a criminal case.
The Code of Civil Procedure, of The course, applies only to civil matters. procedure here by way of appeal is not that l id down in the Code, but that laid down in the Magistrates Ordinance. Forms are laid down in that Ordinance, and the chapter on appeal governs procedure and gives power to appeal. The invariable practice in this Court shows that costa have never been given against the Crown. Mr. Slade-I don't know that my friend can say it has been the invariable practice.
Mr. Gompertz-I have no knowledge of costa being given for the Crown, but they have not been given against it. The rules here are that the Crown does not give or receive costs.
Mr. Slade-I submit that the Magistrates' Ordinance gires power to the Court to award costs against the Crown.
Their Lordships' decisions were reserved.
LONG KEE t. NG WAI.
An appeal was heard on the Chief Justice's decision regarding costs in the case in which Long Kee, of the firm of Messrs. Fook Wo Cheong, merchants, carrying on business a' 39. Wing Lok Street, applied to set aside a deed of mortgage.
Hon. Mr. H. E. Pollock, K.C., instructed by Mr. A. G. Jackson (of Messrs. Johnson, Stokes and Master) appeared for the appellant (plain- tiff, the respondent being represented by Mr.
M. W. lade, instructed by Mr. G. K. Hall Brutton (of Messrs. Brutton and Hett).
[July 22, 1907.
Mr. Pollook stated that since the matter was last before the Court they had complied with his Lordship's desire that certain additional information should be put on the record with reference to the financial position of the Man On Insurance Company, and se'ting forth its assets and liabilities. Certain affidavits, com- piled by the manager of the Company, Mr. R. . C. Master and Mr. Kwong Tong-kwok, a director, had been filed. If those affidavits satisfied his Lordship he would ask him to make an order approving of them. A formal order would be submitted for the approval of the Court. Mr. Pollock further asked his Lord- ship to make an order that costs should be taxed and paid by the Insurance Company as between solicitor and client.
BRAL
His Lordship-I grant this application now that the further information has been supplied me. It is a matter which concerns the public, and, therefore, I will give my reasons for granting it. In the first place, when the application was made, I
under the impression that the share capital was not sufficient, but information has now been sup plied to me that a great number of Chinese marine insurance companies, which are also in the fire business have a capital practically the same as this, namely, $1,000,000 half paid up. It is a matter which the Court mast” in- quire into carefully because experience bas shown that, in the event of the winding up of a company, there is always very great (dim ulty with regard to absent shareholders. Therefore. I required special information with regard resident shareholders in this Company, I find that out of 5,000 shares, all and
of 325, are held by with the exception shareholders in Hongkong. That appears to me, so far as the Court on investigate it, sufficient guarantee that, in the event of the capital being called up, there will be no difficulty. The Company has supplied the information the Court required, therefore I grant the applic:- tion.
to
Mr. Pollock-I take it your Lordship will not require any further advertisements ?
His Lordship-I think not.
Wednesday, July 17th.
BEFORE MR. A. G. WISE (PUISAE JUDGE).
A CARELESS BORROWER,
Ma Cheung-chan brought motion against Leung Kwan sing to recover $656.10, being principal and interest due on a promissory note.
Mr F. X. d'Almada e Castro appeared for the plaintiff, and Mr. P. W. Goldring (of Messrs. Goldring and Barlow) for the defendant.
The plaintiff was called, and stated that the defendant borrowed $600 from him on December 20th, 1906, for which he signed a promissory uote.
In cross-examination plaintiff stated that he saw defendant write the note, and paid him the money personally.
Mr. Pollock first referred to the pleadings, remarking that in the statement of claim the owner of the property sought to have the mort- gage set aside, delivered ap, and a cancella- tion of the registration on the ground that the mortgage put on the register was not signed
Defendant stated that on December 18th he by him, or with his authority. The defendant asked his consin, Kwok Chik-sing, whether then put in, not merely a statement of defence, he could procure him a loan of $600. The but also a counterclaim, and in the former he
cousin said he knew a man who would aɑsommo- put the plaintiff to prove his title as owner.
date the loan, but as this man, the plaintiff, Counsel quoted numerous authorities on the
wanted 30 per cent. interest, he would not give question of negligence, and as to what cousti.
him the promissory note. He left the signed fated a breach of duty, arguing that if the plain-note with his cousin, however, in order that he tiff chose, he coul keep his title deeds ia bis own home in China, rather than in Hongkong.
After hearing Mr. Slade, the Court decided that the appeal should be dismissed with costs.
Tuesday, July 16th.
IN ORIGINAL JURISDICTION.
might raise the loan from somebody else.
His Lordship-This man is a past master in the art of promissory notes.
Mr. Goldring-I don't know about being a . past master, but he has foolishly let a whole lot go floating about the Colony.
His Lordship-What about his sister? Mr. Goldring-I don't know about her. Defendant is a foolish young man although he
BEFORE SIE FRANCIS PIGGOTT (CHIEF has had experience before, but this note was
JUSTICE).
EXTENDINGAN INSURANCE COMPANY'S BUSINESS.
In the matter of the Man On Insurance Co., Ld., the Hon. Mr. H. E. Pollock, K.C., who was instructed by Mr. R. F. C. Master (of Messrs. Johnson, Stokes and Master), renewed the application for the confirmation by the Court of certain resolutions which had been passed with a view to extending the Company's business,
signed prior to the other two.
His Lordship-Judgment and costs for plaintiff.
AN EXACTING TENANT.
J. X Botelho sued C. 8. Remedios claiming possession of part of the ground floor of 29 Mosque Street, which was illegally occupied by
the defendant.
Plaintiff appeared in person, and Mr. Gold- ring represented the defendant.
His Lordship (to plaintiff)-How does the ground floor belong to you ?—I rented it from
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