884
SUPREME COURT.
Monday, November 2nd.
IN APPELLATE JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTION), AND MR. H. H. J. GOMPERTZ
(ACTING PUISNE JUDGE),
INTERESTING APPEAL,
Before the Fall Court the Humphreys Estate and Finance Co., Ld., appealed against the decision of the Paisne Judge in the case Goldring v. the Humphreys Estate and Finance Co., Ld. In the summary action the Paisne Judge gave judgment for the plaintiff for $500, for damage done to his property daring a storm,
Sir Henry Berkeley, K.C., instructed by Mr. P. M. Hodgson (of Messrs. Ewens and Harston) | appeared for the appellants and the respon- dent (who was assisted by Mr. E. J. Grist), appeared in person.
Sir Henry Berkeley said this was an appeal by the Humphreys Estate Co., as lessors of certain premises on the Kowloon ride, against a decision of the Puiana Judge, in which the landlord was held to be liable in damages for injuries sustained by the tenant by the leaking of a roof due to alleged defective repair of that roof, which defect was alleged to be a breach of the covenant of the land- lord to keep the roof in tenantab'e condition and repair. The first feature he would call attention to was that it was admitted on the avidence that the landlord had received no notice to repair. Their Lordships would see that the learned Paisne Judge, accepting that as a fact, and recognising the long series of cases which established the principle that under `s covenant to repair the landlord was not liable for bresch unless notice had been given, dis- tinguished this particular case of Humphreys and Goldring from that long line of authori- ties which established that principle. And his Lordship had enunciated what seemed almost to be a new principle inasmuch as there were
either no authorities
in this Court or in the Courts in England directly sustaining the principle that the occupier of a fist who had a lease containing covenants such as were contained in this lease, was under no liability to give his landlord any notice of want of repair.
The Chief Justice--Do any cases with regard to necessity of notice to repair refer to fits? In the case of the lower fits they would only know of necessity to r pair by damage being done to the roof.
Sir Heary Berkeley-I don't see that that makes any difference whatever. I think that each case which comes before the Court for enunciation of a princip'e has to depend on the facts of the particular cas Proceeding, Counsel said he proposed to take the case in detail and discass the facts because it was impossible to say what the law was in a given case until it was agreed as to what the facts were. He asked their Lordships' attention to the writ. On the admission of the plaintiff, as part of his case, he was the lessee of the premises at Kowloon. He asked particular attention to the wording, because everything in this case would turn upon the true construction of the contract between the parties. Every- thing would depend in this case upon what passed from the lessor to the lessee under the contract. If the landlord retained in his possession and control the roof, pipes and gutters, then the long line of cases mentioned in this instance would not apply. Under the expression "premises" everything passed that was necessary to the effective enjoyment of the premises let.
He thought it was hardly necessary for him to press upon the Court that if a man let a flat, the roof over that flat was a necessary adjunct to his enjoyment of that flat, and if a man took the lease of a flat with- out any reservation he got the possession and control of the roof, He submitted that the roof was an easement, and the tenant would have a right to go on the roof for the enjoyment'
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THE HONGKƠNG WEEKLY PRESS AND
[November 9, 1908.
of that easement, Therefore at this stage her Mr. Morrell anked for judgment and costs for put it that the view taken by the Paisne Jadge, the defendant for what it was worth. It was that plaintiff would have been a trespasser, if | obviou‹ that the plaintiff know he was bankrupt, he had gone on the roof, was a mistaken one.although in thị bỏx he swore that he was a The agreement was not drawn up by a profes- wealthy man. In this be committed deliberate sional man;
it was one of those things that perjury, for he sold his business and filed his could be procured at a stationer's, probably petition in bankruptcy on the some day, bought by the gross,
Plaintiff's case was absolutely broken down, and the defendant was entitled to judgment, other- wise in the bankruptcy proceedings a proof would be filed against defendat for debt.
Mr. Goldring- It was supplied by Ewens and Harston.
Sir Henry Berkeley said the landlord let these premises with all appartenames, and the drain pipes were appurtenant to the holding. The drain pipes were there for the convenience of the occupiers.
Mr. Dixon-I am prepared to go on with the case, but cannot prooed with it in its present form.
Mr. Morrell-I ask your Lordship for judgment.
His Lordship-On the merits of the case? Mr. Morrell - On the merits of the case, and on the plaintiff's cross-examination.
霉
His Lordship (to Mr Dixon) Can you go on after having filed your petition ?
Mr. Goldring contended that it was perfectly clear that in the absence of express words a demise was only of those things which were expressed in it. According to all the author- ities, a demise did not pass anything more than what was actually meant in the agreement, He submitted that the learned judge in this case was perfectly right in holding that the assigned the goodwill of their business, stook. Mr. D.zn-Certainly. The plaintiffs have possession and control of the roof was retain-din-trade and book debts to somebody else. { by the landlords, b cause, be had no mans
That vests, subject to notices which I have to al aco as to it whatever, from the pre-
give under the Judicatura Ant, whatever rights mises occupied by him; to gain access to it, it would be necessary to lash two bamboo the plaintiffs had in this debt in the person
who purchased the book debta. ladders together. It could not be said that the entitled, if he thinks fit, to go on with the notion roof was in any way demised to him, and that and if he succeeds my friend will have to pay being the case ne submitted to their Lordship all the costs, that there was a very clear daty thrown upon the landlords to keep in order the gutters and the roof. Mr. Goldring referred their Lordships to the ouse of Clerk and Linsell on torte, a
Mr. Dizou-I am prepared, with your Lord- case in which it was held that there was a duty ship's permission, to amend the title in the on the part of landlords to exercise reagon-action and go on with the case. able preciations against damages to ivia.
The Chi f Justice-You sue on a covenant, and a covenant may be so strictly drawn that it would not cover this case. There may be a duty irrespective of the covenant which you have not sned upon.
Mr. Goldring-The summary court jaris diction permits a judge to take into considera- tion other cases than one, and I think that is what the learned Paisne Judge did in this case, It makes my case strong if I establish first of all that I have a right to actiod for damages in tort, and it make it even stronger if I have a covenant.
He will be
His Lordship Can you go on now! You have assignel your interest.
Mr. Morrell My friend cannot appear for Allana, Allana brought the solion knowing he insolvent, and defendant is entitled to judgment.
His Lordship-I don't think you aromatitled to judgment, so far, but I will make a condition that you get your oʊsts for to-day.
Mr. Dixon-Ob, no, my Lɔrd. "Against whom, my Lord?
His Lordsbip-On behalf of whom are you appearing?
Mr. Dixon-I am appearing at present for Alians and Co.
Mr. Morrell-Who don't exist ? Mr. Dixon And I am asking for the case to
The Chief Justice-Either you've got a daty under the covenant or another duly understand over as Allana has sold bit bun665,
Common Law,
Mr. Goldring-The Paigne Judge's decision | was based on the whole of the facts, and the law broadly..
The Chief Justice-Supposing we are against you on the covenant and on ordinary grounds of negligence, this point does not seem to hare been answered: that the landlord, having retained the possession of the roof, allowed the accumulation of water which by some means found its way on to your property.
Mr. Goldring said an overseer would be sufficient to overlook all the Company's houses in Kowloon.
After farther argument their Lordships reserved their decision.
Wednesday, November 4th.
IN SUMMARY JURISDICTION.
BEFORE ME, H. H. J. Gompertz (ACTING PUISNE JUDGE).
AN APPLICATION FÓR JUDGMENT,
The case in which 8. E Allana and Co. saed Miss M. Hayden to recover payment for
ourt yesterday. goods sold, was mentioned in
Mr. C. F. Dixon (of Mesars, Hastings and Hastings) represented the plaintiff and Mr. G. E. Morrel (of Masste. Goldring, Barlow and Morrell) appeared for the defendant.
His Lordship-You are appes for the plaintiff Allana?
Mr. Dixon - Y 86.
His Lordship-He has no longer any interest in the subject matter of this claim.
Mr. Dixon-He has assigned the debt to somebody else. I am entitled to apply for an adjournment
His Lordship-I can only grant the applica tion on the payment of costs.
Mr. Dixon-against whom does your Lord- ship make the order?
His Lordship--I don't know who your clients ara, but if i grant your application it will be on those terms.
Mr. Dixon-Will your Lordship adjourn the case ?
His Lordship-On those terms? I cannot possibly decide on the merits now, and I am not clear that the plaintiff is entitled to go on.
Mr. Dixon-I am not prepared to go on.
Mr. Morrell drew bis Lordship's attention to Ordinance No. 3 of 1873 which gave the Court power to commit a man to prison for three months for perjuring himself, and saked his Lordship to commit the plaintiff.
Mr. Dixon-It is quite possible I could make a similar application with regard to my friend's alient before I have fluished with her.
Mr. Morrell-You have finished with her. His Lordship-I will adjourn the case, and allow the defendant costs for the day.
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Rear-Admiral Stokes and Mrs. Stokes left "Delhi" for Home by the P. & O. Møl Mr. Dixon said the plaintiffs had disposed of At the farewell dinner given to Admiral and week ag His Excellency their business and the goodwill, stock-in-trade Mrs. Stokes and book debts to a third party, so he supposed the Governor admirably voiced the right of action which was in the platiff sentiments of the community that there was now vested in the third party. The for is no need for as to do more than endorse he would ask bis Lordship to allow the set them and assure both Admiral and Kr. go into Friday list in order that he could see Stokes that while their departure is viewed the third party and ascertain, what his wishes with general regret, the best wishes of the were with regard to this notion.
community will follow them to their new homé,
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