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[May 11, 1908. enacted that, say, section 3 is to continue in force. That section of the Act of 1858 then continues in force. Now the Act of 1860. repealed in 1895; this repeal would destroy section 3 of 1858, which now exists in virtus of the Act of 1860. Therefore comes this provision and says the repeal of the Act of 1860 is to revive sectio. 3 of 1858: revive is used, because the repeal of the Act of 1860, has in fact destroyed it. But there is another question The jurisdiction of the Supreme Court raised. is by seo ion 7 of 3 of 1873 declared to be the jurisdiction of the English Courts of Queen's Benob, Common Pleas, and Exchequer. Now bere is another legislative pit-fall straight in the way of the unwary litigant This is merely repeating an existing provision; but it is a the form of a reenacting clause, and it is quite possible to contend that the date at which the jurisdiction is to be ascertained in 1873, there is a proper form of words where you want to continue as well as to re-enact which avoids all difficulties. But this question does not arise, because the answer to the argument of the defendant on this point is much simpler than I at first thought. It is said that
THE HONGKONG WEEKLY PRESS AND criminal conversation been expressly taken away is section 38 of the Eaglish Act), for that also whether by Ordinance or inferentially by a series in somewhat different language is to be found of Ordinances ? The first Act I have to look at in No. 3 of 1895. The heading under which is No. 5 of 858, which introduced bodily both sections 9 and 11 of No. 8 of 18 7 come is certain English Acts into the Colony, among therefore accurate. The rules of, interpretation them certain sections of the Divorce Act, contained in them were, in fact, "Existing except in so far as they relate to dissolution of Rules (of Construction," and I am therefore marriage. Among these sections are sections saved some rather difficult inquiries: what is 33 and 59. Therefore, the action of criminal the true legislative effect of sectional headings, conversation was done away with altogether in which it appears is somewhat more extended this Colony and the limited power of awarding than that of marginal notes; and then, damages against co-respondents for adultery in what is the effect af 80 inaccurate suits for judicial separation, or in a petition heading, as this in the revised edition limited to that object was granted to the
of the laws andoubtedly ot first sight Supreme Court in the same way as it had been appeared to be. The problem is simplified to granted to the Divorce Court when it was this extent, but the crudity of the legislation enaoted in England. By No. 56 of 1860, this passed in 195 remains, and it is about as crude Ordinance was repealed in one short section. a bit of legislation as it has ever been my fate It, however, recited in the preamble that it was to endeavour to construe. A retroactive effect expedient and necessary to provide for the is given to existing repealing laws. What they subjects dealt with in the same Aot introduced did do is suddenly undone, and undone retro- by No. 5 of 1958 by distinct enactments; but so aotively. They did revive laws which had far as matrimonial jurisdiction is concern-d this been repealed by the Ordinanbes themselves has never been done. We therefore get to this: repealed. It is, many years afterwards, The jurisdiction created in 1858 was abolished in enacted that they did not revive those laws. 1860. But was the law which had been destroyed
What is to happen to rights acquired by the introduction of Section 59 of the Divorce in the meantime under such legislation I Act revived ? In other words, was the right to have not the remotest idea, and in this case I bring an action for criminal conversation need not speculate, for I have quite sufficiently brought into existence again? Now the prin. 8-rious consequences to deal with as it is. How ciple of repeal is of course that it destroys. the draftsman came to make the blunder I But when a repealing act is itself repealed cannot understand. Section 11 of the English the common law rule is that it revives what Act was rot made retrospective, but was was destroyed before. This rule is very clearly applied to Statutes passed since 18 0, because stated in Maxwell (at p. 622), "Where an act they themselves were already all subject to this is repealed, and the repealing enactment is rule of e nstruction. Section 38 was naturally repealed by auotber which manifests no inten-only made applicable to future 1-gislation. tion that the first shall continue repealed, the The corresponding sections of the looal common law rule was that the repeal of the Ordinance are both made bodily retrospective. second not revived the first, and revived it too, I cannot help myself, therefore, in coming decision in this case although it is ad nitio, and not merely from the pas-ing to a of the reviving act." That this rule accords manifestly contrary to common sense. The with common sense is manifested in its Courts are not allowed to interpret what has application to the present case. The action need of interpretation. The legislature for oriminal conversation existed in the must be intended to Colo .J.
In 1858 an English Act was in troduced which
is no among other things did the away with
action; and
A years after that act was itself repealed clearly because it was a very olumsy way of giving the Supreme Court a series of somewhat complicated jurisdictions. Whether the preamble exactly fitted the intention of the legislature is a matter which need not be inquired into. It remains only to say that the other Acts introduced by No. 5 of 1858 were replaced by special ordinances in the Colony, the Matrimonial Causes Act was not. It would be manifestly impossible to hold that there was no reviver resulting from this repeal. Therefore, after No, 5 of 1850 came into operation, the criminal conversation was maintainable in the Colony. We then come to the Interpretation Ordinance of the Colony No. 8 of 1897, by sections 9 and 11 of which certain rules were laid down to the effect of repeals. These, as most of the other sections of the Ordinance, were based on the English interpretation Act of 1889. Now the English sections are AA follows: "Section 11 which appears under the heading" Re-enactment of the existing rules" provides that where an Act passed after the year 1850 whether before or after the com- mencement of this Act repeals a repealing enactment, it shall not be construed as reviving any enactment previously repealed unles w rds are added reviving that enactment. The refer'-
ence
same clause.
two
to the year 185) has a very definite meaning. The Statute 13 Vic, Chap. 21 for shorteuing the language used in Acts of Parliament coutained in section 5 this The statement of the heading that the sections following and under it did re-enact existing rules of construction, had a definite meaning, and was in fact accurate. Now this becomes section 9 of the local Ordia- ance, and here also we have the heading "Ex- isting Rules of Co-struotion."
There was an Interpretation Ordinance passed in 1867, No. 1 of that year, but it does not contain this claus. There was also a Repeal Explanatory Ordinance passed in 1895, o. 3 of that year, which, though in somewhat different language, coutains the effect of this clanse ; and by section 4 thi Ordinance was applied to Ordinances passed before as well as after the commencement of that Ordinance. The same remark applies to section 11 (which
no
mein
what it has
plainly expressed, and consequently, there room for construction, It matters
the effect of section 49 of the Divorce Act was to remove criminal conversation actions from the jurisdiction of the Common Law Courts: and therefore as thes› Courts had not got that jurisdiction in 1873 this Court has not got it, I do not think that the question is one either of The action is competence or jurisdiction, simply destroyed. When you say that a Court bas no jurisdiction to try an action that means that the action is an existent action, one which But where may be brought somewhere. the action has been destroyed that is o the Court would be end of the matter: competent to entertain it if it existed, only it does not exist. I do not think therefore that the question before me is affected by section 7 of the Supreme Court Ordinance of 1873. The result of this painfully, tedious argument is that this action, in virtue of the retroactive operation of section 9 of the Interpretation Ordirance, has not been revived by the repeal of No. 5 of 1858 by No. 5 of 1830. Without extressfag the slightest opinion on the merits of the case, and regarding it as I am bound to regard it as an action brought to vindicate any other alleged infringement of right, I can only say that the result is ludicrous. But the defendant's point is well taken and must prevail, and though I have given much thought to the question I feel that I cannot make any other than the usual order, and give judgment on the point of law raised by the defendant with costs. the effect of dismissing the action. But I think I am justified in expressing the hope that should the law on the question of repeals be put straight, and the action for oriminal conversa- tion thereupon revive, that no technical objec- tion will be raised by the defeudaut to the revival of this action at the stage at which it
has now reached.
AIBEL ACTION.
This has
not, in such case, what the consequences may be. Where by the use of clear and unequivocal language, capable of only one meaning, anything is enacted by the legislature, it must be enforced, even though it is absurd or mischievous. If the words go beyond what was probably the intention, effect must, nevertheless be given to them. They cannot be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they shoud be exclud. ed or embraced. However unjust, arbitrary or inconvenient the intention conveyed may be, it must receive its full effect. When once the intention is plain, it is not the province of a Court to scan its wisdom or its policy. Its daty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words. There is much more in Maxwell to the same effect. I must not SOAD the wisdom of this enactment, but
The action by the Ts Tsui Wo Company, I may in unmistakeable language declare its carrying on business at 107 Connaught Road unwisdom. Therefore there is no mistake Central against the proprietors, printers, and about it, the action of criminal conversation publishers of the Chinese newspaper the Sai which lal been revived in 1860, acd which Kang Yix Po; for $10.000 damages for alleged, existed down to 1895, was destroyed in 1895 libel, the libel consisting of a statement ap retroactively. Now the learned Attorney-pearing in an article published in the news- General, if he reads this judgment, will, I make no doubt, immediately repeal this law, and re-enact it in proper language. have no hesitation in pointing to what would then happen: the action for criminal con- versation would again come into existence in the Colony, and would farther always have been in existence. I think I should take this opportunity of explaining the differ. ence between section 11 and section 38 of the English Act. Section 11 is straight-forward; but the clause of section 38, which was also referred to as the counterpart of section 11 of the local Ordinance, is most complex in its wording. It provides that "where an Act repeals any other Enactment, then, unless the contrary appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes place."
And I
The use of the doable negative is puzzling, and suggests that an express revivor is contem. plated. I think it is. Take the following case:-Assome an Act passed in 1858, repealed by another Act passed in 1860; but it is expressly
paper charging the plaintiffs with having been associated with lawless obaractors in Manila, was continued,
}
Si Henry Berkeley, K.C, instructed by Mr. Oto Kong Sing, appeared for the plaintiffs; and Mr. M. Slade, instructed by Mr. Steagen- son, of Messrs. Deacon, Looker and Deapon. appeared for defendants.
After hearing evidence, His Lordship gave judgment for $530, the sum paid into Court, with costs
IN SUMMARY JURISDICTION.
BEFORE MR. H. H. J. GOMPERTZ (ACTING PUISNE JUIGE).
AN INTERESTING POINT. The action in which Lo Leung otherwise Leang Tai Kon proceeded against the Tang Hang Ya otherwise Thong Hang Dyos for the recovery of $1,000 was called on. Mr. F. X. d'Almada e Castro appeared for plaintiff and Mr. E. J. Grist for defendants.
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