Mr. Goldring—I will file an afidavit by Mr. Has-land, and submit the contract.
Mr. Davidson-I submit your Lordship should hear the evidence,
Mr. Goldring-My friend will have an opportunity of answering my affidavit,
Mr. Davidson-The notion might sa well be tried now. It is a cheaper way of deciding the question.
His Lordship-That is so.
Mr. Goldring-Very little oost has been incurred in this action so far, and if the parties go before Mr. Hazeland no further costs will be incurred,
Mr. Davidson—What my friend's contention amounts to is this: that, because there is an arbitration clause in the contract, when certain | monies are found dus my client cannot recover them at law; he must go to Mr. Haseland, The arbitration clause is to determine what is due.
His Lordship (to Mr. Goldring)-You claim a set off!
Mr. Goldring-Yes.
His Lordship-I think the matter should be referred to the architect.
Mr. Davidson-On the face of the certificate this money is due, and this is the means of re- covering the money. I submit to your Lordship
that the coun er claim is not a substantial oue-- only a few dollars,
His Lordship-If that is all, then you get your costs.
Mr. Davidson-In any case, I submit I was entitled to notion of this defence.
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THE HONGKONG WEEKLY PRESS AND
8.6
[06% 1908,
44
Hon. Mr. W. Rees Davies, K.C. (Attorney-provisions of the Building Ordinances. It General), who was instructed by Mr. F. B. L. | would be seen therefore, from the certificate Bowley (Crown Solioftor), stated that this which said that the work had been carried out in Case srose out of the typhoon of the compliance with the provisions of the Ordinatios, 27-28th July, the defendant having been that the họuses were designed sodording committed by the Police Magistrata, sitting to law. He used the word designed
coroner, ander the Coroner's Ordinance advisedly, because the superficial examination of 1888, after the death inquiry which had been showed that the buildings had been designed held concerning the death of these people. The socording to law, but an examination after the Coroner's jury found a unanimous verdict of collapse, showed that the rear wall which fell gross negligence, which in point of law amounted was very badly built, both constructiów wid to manslaughter. Manslaughter was a crime of materiais being faulty. various categories. It was defined as unlawful homicide without malice aforethought. Malice was the main ingredient in murder, and the absence of malice constituted maaslaughter, A lawful set, improperly performed, might smount 10 manslaughter, and a man by uegleet of his duty might render himself liable to be convicted of manslaughter. In such a Osse there had to be negligence so great as to satisfy the jury that the defendant had a wicked mind in the sense of hing reckless and careless whether death occurred or hot. The facts of the osse were that at about 1.45 on the morning of the 28th July, when the typhoon was blowing with its greatest violence, the back wall of a block of five thres-
storeyed houses at Shaukiwan pollapsed and fell on to three small houses and a boat builder's shed, killing 17 people. The five three storeyed houses, the back wall of which collapsed, faced the mala road. The lot on which these buildings stood was not in the old village of Shaukiwan, bat in what was known as 8Haukiwan West, a
district which had recently become of import-
Mr. Goldring The plaintiff frequently approached the principal and Mr. Hassland ance on account of the construction of the with regard to a settlement, and I was instructed tram line, and its proximity to the new dook at on Monday morning that the case was going Quarry Bay. It appeared that in July 1902 to be withdrawn and submitted to Mr. Haze-
the owner of this lot gave notice to land. It was only yesterday afternoon that I the Building Authority, under the Build- heard it was not going to be settled by Mr.ing Ordinance of 1891, at that time in force, of Hazeland,
Mr. Davidson-Mr. Hazeland has already been sub-posed by the other side and he advised my client that he had no case. My friend has got to prove that there is some matter unsettled that should be referred to the arbitrator.
Mr. Goldring-As the action stands, it is for money due under the contract, and for extras. The plaintiff does not say anything about the award he should have got. My friend wants to consider the award as a certificate.
His Lordship-If affidavits had been filed, and Mr. Davidson had been given notice, this matter would never have come to Court at a:l.
Mr Goldring-If your Lordship does not hold the certificate amounts to an award-
His Lordship-I don't, but I regret you did not give notice.
Mr. Goldring-I would have, but up till yesterday was informed that the case was going to be settled. I say that this certificate was obtained by misrepresentation on the part of the plaintiff."
Mr. Davidson- How
can
my friend say there are matters to be referred to arbitration,
when on the fo- of it the whole contract is over! Te architect, who has to determine all these matfēra, has given a certificate.
His Lordship-I think my e urs is clear. I had better adjourn the case fraff-davits to b filed, and will give the plaintiff costs of the day, beanse I think affid‹vita sh old have been filed. It seems to me prima facie that Mr. Goldring is right, and that, if affidavits had been filed, I should have made an order,
Argument will be continued in Chambers on Saturday morninz.
Thursday, October 29th,
IN CRIMINAL JURISDICTION,
BEFORE BIR FRANCIS PIGGOTT (CHIEF JUSTICE).
ALLEGED MANSLAUGHTER.
Chung I was indicted on a charge of man- slaughter in connection with the building collapse at Shaukiwao, Prisoner, who was DOI defended, pleaded not guilty, stafing that the phoon brought about the deaths of the 17 persons killed.
The follo sing jury was empanelled :- J. Witobel (foreman), N. F. 8. Harm, E. 8. Ford, F. R. Hickman, J. E. Danielsen, W. Nicholls and F. T. Chapple.
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His Lordship-When was that discovered f The Attorney General-After the collapse. This wall, if properly built, would have been a very substatial structure which ought to havo withstood almost any typhoon. Certain expert witnesses will be called to prove that the law has not been complied with,
occurred on 28th July, 1908. Is that right! His Lordship--You allege the wrongful sot The neglect would have been in 1903,
The Attorney-General—As a result of the neglect in 1903, these deaths were osused in 1908,
committed in 1908.
His Lordship The negligence was not I don't think, in a
criminal indictment, you can omit a defaite statement as to when the negligent not was committed. In civil law, yes; but not in oriminal law.
The Attorney-General-If your Lordship thinks it would be more correct to put the date at the time the buildings were completed. I would apply to amend the date.
His Lordship-I agree with what the prisoner pleaded; that it was the typhoon that caused the collapse. The charge should have been that he was negligent in 1993.
The Attorney-General-I hardly see how that will work out The result of the negligence was not caused in 1903,
His Lordship-The prisoner is quite right in saying the typhoon did the damage in July 1908.
The Attorney-General-As your Lordship knows, in old indictments for manslaughter it is customary to set out the alleged not in cutáneo, and to connect it with the death of the party concerned. Under the existing state of things it is only necessary to allege the killing and slaying.
His Lordship-Then the omitted altogether.
date should be
The Attorney General-It might be met, with your Lordship's consent, by inserting "between the dates" of August 1909 and July 28: 1908,"
His Lordship—I don't think in oziminal law you can say there is any continuing sot. If he is liable at all, he is liable for the consequendo of his negligent not in 1903,
The Attorney-General—If we allege only the 1903 date, nothing has: happened. We cannot alleg in the indictment that in 1903 he brought about the death of these people.
His
Lordship The negligence in 1908 brought about the deaths of these people in 1908 P.,
his intention to construct ten Chinese dwelling houses, of three storeys. Plans were prepared at that time by Mr. Brotherton Harker, the architect, were submitted, and after certain alterations were found to be in accordance with the Building Ordinance, and permission was given to begin building in August 1902. The owner, it appeared, after submitting the plans changed his mind, and instead of erecting ten houses which would have covered the whole of the lot, he erected re houses only, and on that side which fronted the main road, leaving the three old houses and the boat bui'der's shed standing below on the remainder of the lot. The back wall of the new houses Was built almost back to biok with the back wall of the ol! housee, but of course, st a vary much greater height. Having got the plans passed, Mr. Harker, the architect, had nothing farther to do with the work which wa‹ taken in hand by the owner; In this case no kind of responsibility stiched in any way to the architect. The plans were taken lo band by the owner, who enraged the defendant (formerly a stone mason, and subsequently, a building contractor) to build the lower portion of the houses, advise bim in their construction, the materials used, and generally to supervise.
The Attorney-General-Į will ask your The defendant in bis evidence before the Lordship's permission to put it in "this
day lived Coroner said
days between near the houses way: In while they were being greated. and only August 1903 and July 1908 luft when they
finished; were
and be His Lordship-'hat wouldn't do. He son. exercised
the oluded the houses altogether and gave up a general supervision over bricklayers and other workmen. He took upon supervision in 1903 on a certificate being given What him-elf the full responsibility for the con- by the Public Works Department. struction of the work, for the materisis that powers of amendment have Í got? constituted it, and so forth The walls of the first storey were constructed of rough granite, and the upper portions of red brick. The defendant supplied the granite and labour, while it appeared that the owner bought the lime, and also purchased the tricks on the advice of the defendant. Shortly after the buildings were sta-ted the Public Health and Building Ordiu. ance of 1903 was passed, but nc quewiọn re+lly ar-se in regard in it as the owner v·luo, tarily amended his plans of þuilting te ooraply with the new Ordina oe. Qu Jane Brl, :909, Mr. Tooker, po babalf of the Die ator of Pablie Works, signed a certificate to the eff at that the five houses had been builtin compliance with | th provisió s of the Building Ordinanon of 1889. This was afor the buildings bad been
ho
inspect dhe Me Havgard, an sin an engineer in the Public Works eper meat, who was then employed under Mr. Tooker to carry out the
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OF
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The Attorney-General-A general power to amend say indle:ment.
The Attorney-General again proceeded with bis address, stating that d-foote in material construction would contribute to the fall of the wall in a gule. Witnesses would tell the jurors tue way a wall should be built to comply with the terms of the Ordinanos,
Hic Lordship -I am afraid I must interrupt We must get the you agniu Mɩ. Attorney. proceedings quite right. This is not a prosion• . tion under the Statute, bat a prossentión at Common Law
Tt.. At orany-General-I don't tlak. Lordship quite appreheads my poľať, the 8 kia » imposes a duty on a mám în unture of a bai ding and that Statuts ther is evidenon of negligeros. ‚seform a la«ful not in a negligid which may cause death. I sm
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