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May 11, 1908.]
SUPREME COURT,
Friday, 1st May.
IN SUMMARY JURISDICTION.
BEFORE MR. B. H. J. GOMPERTZ (ACTING PUISNE JUDGE).
CLAIM UNDER A WILL.
Mr. Edmund Hamilton Sharp, at present residing at Banff in British Columbia, and Sir Catchick Paul Chater, K., C.M.G., of No. 5, Queen's Road Central, the present Trustees of the will of the late Mr. Granville Sharp, claimed from Tsang Keng, contractor, the sum of $873.33, being arrears of interest due ander a covenant in a mortgage deed dated the 18th day of May 1993, whereby the defendint covenanted that if he did not repay to Edmund Hamilton Sharp and one James Buchanan (the then trustees of the aforementioned will), the principal sum of $32,00 with interest thereon, at the rate of 7 per cent per annum on May 18, 1906, he would thereafter, so long as the principal sum should remain unpaid, pay to the trustees by equal monthly payments, interest on the said principal at the rate of 7 per cent.
Mr Jackson, of Messrs Johnson, Stokes and Master, appeared for the claimant. After hearing evidence, his Honour reserved judgment in order that claimants might produce the mortgage deed.
Monday, 4th May..
IN ORIGINAL JURISDICTION.
BEFORE THE CHIEF JUSTIGE (SIR
F. PIGGOT).
A LIBEL ACTION.
The Tso Tsui Wo Company, carrying on business at 107 Copnenght Road Central, brought an action for 810,000 against the proprietors printers and publishers of the Chinese newspaper the Sai Kung Yik P, , for alleged libel, the libel consisting of a statement appearing in ad article published in the newspaper charging the plaintiffs with having been associated with lawless characters in Manila.
Sir Henry Berkeley, K.C., instructed by Mr. Otto Kong Sing, appeared for the plaintiffs; and Mr. M. Slade instructed by Mr. Steaven- son, of Messrs Deacon, Looker and Deacon, appeared for defendants.
CHINA OVERLAND TRADE REPORT. Yuen Hop who had absconded and had in concert with certain persons described in the article as unjust and lawless characters defrauded a certain company in Manila, and that the Tso Yuen Hop had established a branch firm in Hongkong known as the Tso Tsui Wo foreign goods shop, meaning that the plaintiffs had been associated in business with persons who were lawless charactere.
The defendants replied that the article was had signed their names sent to the newspaper by certain persons who the eto, and the defendants were ready to publish an apology. Plaintiff had really suffered no less nor injury and defendants bad paid $500 in Court as sufficient to meet any loss the plainliffs may have suffered.
'Sir Henry argued that as the defendants and it followed that plainlifts were entitled to had paid $500 into Court the libel was admitted damages. The only question for the court therefore was the quantum.
claim, and the case adjourned.
Evidence was called in support of plaintiff's
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Tuesday, 5th April.
IN ORIGINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR F. PIGGOTT).
""
CRIMINAL CONVERSATION ACTION.
Judgment was delivered in the action brought by Thomas Alexander Mitchell against Jobn Lemm for damages for criminal conversation arising out of the divorce proceedings in the Court of Session, Edinburgh, where the plaintiff obtained decree against his wife. The Hon. Mr. H. E. Pollock, K.C., instructed by Mr. Steavenson, of Messrs. Deaco", Looker and Deacon, appeared for the plaintiff aud Mr. M. Slade, instructed by Mr. J. Scott Harston, appeared for the defendant.
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it makes this Colony the convenient forw, the question is irrevelant. Before the Divorce Act, abolished the action for criminal conversation in England the action could have been brought there, although the adultery was committed in Hongkong. Now the divorce in this pass was decreed in Scotland: I have not the Footch Act before me but for the purpose of what I am going to say I am going to assume that the divorce was decreed in England under the Divorce Act of 1875. Now that Act by section 59 destroyed the action for criminal conversation in England and substituted for it a power for the divorce Court to award damages against a Cores- pondent on the same principle that as would have boon awarded în the action for criminal conversation either on the petition such act either of which petitions is to be for divorce or on a petition limited to served on the wife on the alleged adulterer with power to this court to dispense with service or to direct the method of service. There seems to me to have been few cases in which the co-res- pondent has been abroad and so far as I dan gather from the books it is an uncertain question whether the court has jurisdiction over a co-res. pondent whenever it has jurisdiction over the respondent or 'whether that is kubject to the same rules as other actions against persons abroad that is to say that the case must be brought within Order XI. rule q (c) as relief again t parties domiciled or usually resident in Englaud. But I will assume, still on the hypothesis of the divorce proceedings having been in England, that the damages could have been pronounced against the defendant assuming him to have been guilty of adultery. With regard to section 33 it is to be observed in the first place that it by no means meets the whole case which results from the abolition of the action by section 59. For an action for criminal conversation could prior to 1857 have been brought in England for adultry committed abroad between parties over whom the His Lordship said.-This action is for, as it Divorce Court has
no jurisdiction. ia called in law,
Criminal Conversation," Secondly, and this is material to the present alleged have been committed by the
action, I do not think it can be said that defendant with the wife of the plaintiff in this section 53 gives the Divorce Court an exclusive Colo y. The defendant has raised a pre. jurisdiction to pronounce a divorce. I assume liminary point of law to the effect that this for the purpose of what I am saying that the Court has no jurisdiction to entertain the
Scotch Divorce Court has a jurisdiction similar action. As a matter of fact the plaintiff has to the English Divorce Court, Now as the obtained a d-cree of divorce against his wife
Scotch Court had jurisdiction to pronounce a in the this has no bearing on the point of law now
Footch Courts for adultory, but divorce in this case the competence of this Court to entertai this action must depend on the fact raised. It is right for me to add that the
that the Scotch Court had not exclusive juris
in Scotland; therefore, although defendant was pot a party to the proceedings diction in the matter of damages against the co-respondent, in order that I may bound to talk in this judgment of the consider this question at all I must assume this. defendant's
the wife, it
adultery with plaintiff's Against neither section 59 of the English must not be tiken to have Divorce Act nor any corresponding section in been proved EO far
the Court is
the Scotch Divorce Act has any application to concerned. Whether the plaintiff will be able the Colonies, therefore on fundamental principles Court will help him,-in judication which may anywhere and quite irrespective of any divorce to prove it, how far the judgment of the Scotch action for criminal conversation committed perhaps arise in the future I have nothing preceedings begun or not begun elsewhere lies to do with now. aroid alluding to it,
I cannot, however, by the common law of England introduced into
because 1 cannot
this Celony on 5th April 1843 by Ordinance 2 decide this question without dealing with one of 1846, always supposing the divorce odurt
not clear i bas
awarded damages against him when the question would have ben already course res judicata. I should add to what I have said already that it would not have been altogether an unreason- able thing to have oreated by Section 30 an exclusive jurisdiction over co-respondents in all cases where the Divorce Court has jurisdic- tion over the co-respondent. But all definition of jurisdiction was deliberately excluded from the Divorce Act, that being left to the common law, and if it had intended this even so far as the Colouies are concerned section 50 would have been drafted altogether differently. Therefore in a case where the matter has not already been dealt with in another Court in England or plas- where the action for criminal conversation is part of the common law introduced into this Colony by the Ordinances of 1845 and 1846. I may here point out though I do not think anything in the following argument turns it that there
is no common law in this Colony but that the English common law was introduced by the above ordinances and is therefore strictly speak- of fact the aduling a body of statutory law. This matter tery in this case was alleged to have been com disposed of, come to the question directly mitted in this Colony: but beyond the fact that raised by this point of law: has the action of
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order to
I
am
aspect of the
in case, the ground of a curious, and so far as I know, novel point of law which I mentioned during the argument, Strictly speaking, it lies outside the scope of the argument on the point of law actually raised, and therefore cannot be said to have been fully argued. But if either party is it may be raised for re-argument should dissatisfied with my opinion on this question,
the case Aby time hereafter come од for hearing. 1 deal with it, now in order
The statement of claim stated that plaintiffs were merchants and carrying on business at No. 147, Connaught Road Central. The defendant was the proprietor, printer and publisher of the newspaper known as the Sai Kung Yik Po. The plaintiffs had for many years carried on business in Hongkong and are well known as the Teo Tsui Wo foreign goods firm. On the 5th, 6th, 16th, 17th, 18th and 20th days respectively of February, 1907, the defendants falsely and maliciously printed and published in the said newspaper a certain libellous article in the Chinese language refer- ring to the plaintiffs firm. The words trans- lated into English mean and were understood by those who published them to mean if there are such things how can be seize the company's property as his own property; the Teo Yuen Hop are celebrated persons in the commercial circles of Manila; besides the branch shop Tsai Wo Leung they also have established in Hongkong the Tao Tsui foreign goods firm It cannot be said that they are rich persons and yet they have done such an act: It is not that to clear my own mind of a question which owing to there being a great profit their might perhaps impede a clear appreciation of greedy mouth is watered for it as if it were watered for rain. It is not that they look
what is as complicated a tangle of legislation ever came across. The proceedings strong in their outward appearance bat are dried up internally, and
familiarly known as the action for criminal as they find it conversation, are no more than, a common law unable to pay out the aforesaid amount action for a tort: adultery with a man's wife they have compelled to do such an act. is a wrongful act for which an action for dama. Recently we have seen their correspondence published in a Hongkong paper giving false allegations regarding the matter and we there- fore give a little explanation here and make all our villagers and relations in the island know that between heaven and earth (ie, the universe) there are such unjust and lawless characters The defendant alleged that Tso Hang Leung was a member of a firm in Menila known as the Tso
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ges lies at the suit of the husband for the damage suffered by him- per quod consortium amisit It is a transitory action, that is, it may be brought in any Court without whose jurisdic tion the defendant may be found: the place of commission of the adultery is immaterial, though as matter
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