LAW AMENDMENT ORDINANCE, 1901

LAW AMENDMENT ORDINANCE, 1901

No. 2 of 1901.
An Ordinance to amend and declare in certain respects the
law to be administered in the Supreme Court.

[1st July, 1901.]

This Ordinance inay be cited as the Law Amendment
Ordinance, 1901.

2. In this Ordinance,

(a) Action means a civil proceeding commenced by
writ of summons or in such other manner as may be prescribed
by enactment..
(b) - Cause means any action, suit, or other original
proceeding between a plaintiff and a defendant.

(c). The court means the Supreme Court.

(d) Matter includes every proceeding in the court not
in a cause

Concurrent administration of law and equity

3. In every cause or matter commenced in the Cotta,
law and equity shall be administered by the court according
to the rules following:-
(1) if any plaintiff or petitioner claims to be entitled to any
equitable estate or right, or to relief uponany equitable ground
against any deed, instrument, or contract, or against any
right, title, or claim asserted by any defendant or respondent
in such.' cause or matter, or to any relief founded upon a legal
right, which formerly could only have been given by the
court in its equitable jurisdictionk, the court shall give t such
plaintily or petitioner such aild the saffle relief as ought to
have been given by the court in its equitable jurisdiction in
a suit or proceeding for the same or the like purpose properly
instituted before, the conimendement of the Hongkong Code
of Civil Procedure;'

(2) if any defendant claims to be entitled to any equitable
estate or right, or to relief upon any equitable ground against
any deed, instrument, or contract or against any right, title,
or claim asserted by any plaintiff or petitioner in such

AH UMULKIC(I by Law fiev. Ord., 1924.





or matter, or alleges any ground of eqtiitable defence to any
claim of the plaintiff or petitioner in such cause or niatter,
the cotirt shall give to every equitable estate, riglit, or ground
of relief so claimed, and to every eqiiitable defence so alleged,
such and the same effect, by way of defence aigailist the clal M
of such plaintiff or petitioner, as the court in its equiltable
jurisdiction ought to have given if the same or the like,
had been relied on by way of defence in any suit or proceeding
insitituted therein for the same or the like purpose before the
commencement of the Hongkong Code of Civil Procedure;

(3) the court shall also have power to grant to any defendant
in respect.of any equitable estate or right or other matter of
equity, and also in respect of ally legal estate, right, or title
claimed or asserted by him, all such relief against any plaintiff
or petitioner as such defendant has properly claimed by his
pleading and as the court rnight have granted in ally action
brought by the same defendant against the sarne plaintifF ol.
-petitioner, and also all siich relief relating to or connected
with the original subject of the cause or matter, and in like
manner claimed against any other person, whether already a
party to the same cause or matter or not, who has been dvily
served with notice in writing of such claim pursuant to the
Code of Civil Procedure, as might properly have been granted
against such person if he had been made a defendant to a
cause duly instituted by the same defendant for the like
purpose, and every person served with all), such notice shall
thenceforth be deemed a party to such cause or matter Anth
the same rights in respect of his defence, against such claim
as if he had been duly sued in the ordinary way by such
defendant

(4) the court shall recognise and take notice of all equitable
estates, rights, and titles, and all equitable. duties and
liabilities appearing incidentally ill the course of any ca-tise
or matter, in the same manner ill which the court in its
equitable jurisdiction would have recognised and taken
notice 6f the same in any suit or proceeding duly instituted
therein before the commencement of the Hongkong code of
Civil Procedure;
(5) no cause or proceeding. at any time pending in the court
shall be restrained by prohibition or injunction; but every
matter of equity on which an injunction On against the prosecution
of any such cause or proceedin might have been obtained, if
this Ordinance had not.been passed, either unconditionally





or on any Aerms or conditions, may be relied on by way of
defence thereto: Provided that nothing in this OrdirialiCe
shall disable the court from directing a stay of proceedings
in any cause or matter pending flefore. it, if it thinks fit: and
any person, whether a party or not to any such cause oi.
matter, who may be entitled to enforce, by attachment or
otherwise, any judgment, decree, rule, or order, contrary to
which all or any part of the proceedings in such cause or
matter may have been taken, shall he at liberty to apply
to the court, by motion in a summary way, for a stay of
proceedings in such cause or matter, either generally or so
far as may be necessary for the purposes of jusnice; and Lhe
court shall thereupon make such order as mayl just

(6) sublext to the aforesald provisimis for giving effect to
equitable rights and other matters of equity in manner afore~
said and to the other express provisions of this Ordinance,
th6 court shall recognise and give effect to all legal claims
and demands, and all estates, rights, titles, duties, obligations,
and liabilities existing by the common law or by any custom,
or created by any statute, in the same manner as the same
-would have been recognised and given effect to by the court
if this Ordinance had not been passed; and
(7) the court, in the exercise of the jurisdiction vested in it
by this Ordinance, in every cause or matter pending before
it, shall have power to grant, and shall grant, either
absolutely or on such reasonable terms and conditions as to
it may seem just, all such remedies whatsoever as any of the
parties thereto may appear to be entitled to in respect of any
and every legal or ' equitable claim properly brought forward
by them respectively in such cause or matter; so that, as far
as possible, all matters so in controversy between the said
parties respectively may be completely and finally deter-
mined, and all multiplicity of legal
any of such niatters avoided.

Amendment and declaration of law.

4. In the admini stration by the court of the assets. of any
decased person whose estate may prove to be insufficient
for the payment in full of his debts and liabilities, the same
rules shall prevail and be observed as to the respective
rights of secured and unsecured creditors, and as to debts
and'liabilities provable, and as to the valuation of annulties,
,and future and contingent liabilities respectively, as may be





in force under the law of bankruptcy with respect to the
estates of persons adjudged bankrupt; and all persons who
in any such case, would be entitled to prove for and receive
dividends out of the estate of any such deceased persoil inay
come in under the judgment or order for the administration
of such estate, and make such claims against the saine as
they may respectively be entitled to by virtue of this Ordi-
nance.

5. No claim of a cestui que trust against his trustee for
any property held on an express trust, or in respect of - any
breach of such trust, shall be held to be barred by any
statute of limitations.

6. An estate for life without impeachment of waste shall
not confer or be deemed to have conferred upon the tenant
for life any legal right to commit waste of the description
known as equitable waste, unless an intention to confer such
right expressly appears by the instrument such
estate.

7. There shall not be any merger by operation of law only
of any estate, the beneficial interest in which would not be
deemed to be merged or extinguished in equity.

8. A mortgagor entitled for the time being to the posses
sion or receipt of the rents or profits of any immovable
property, as to which no notice of his intention to take
possession or to enter into the receipt of the rents and profits
thereof has been given by the inortgagee, ritay sue for such
possession, or for the recovery of Such rents and profits, or
to prevent or recoverAamages in respect of any trespass or
other wrong relative thereto, in his own name only, unless
.the cause of action arises upon a lease or other contract inade
by him jointly with any other person.

9. Any absolute assignment, by writing under the hand
of the assignor (not purporting to be by way of cliarge only),
of any debt or other legal chose inof whiefl expross
notice in writing has been given to the debtor, trustee, ot.
other person from whom the assignor would have been
entitled to receive or claim such debt or chose in action,
shall be and be deemed to have been effectual in law (subject
to all equitie.s which would have been entitled to priority





over the right of the assignee if this Ordinance had not been
passed) to pass and transfer the legal right to such debt or
chose in action from the date of such notice, and all legal
and other remedies for the same, and the power to give a
good discharge for the same, without the concurrence of the
assignor: Provided that if the debtor, trustee, or other
p6rson liable in respect of such debt or chose in action has
had notice that such assignment is disputed by the assignor
or any one claiming under him or of any other opposing or
conflicting claims to such debt or chose in action, he. shall
be entitled to call upon the several persons making claim
.thereto to interplead concerning the same, or he may pay
the same into the court iinder ancl M conforinity ividl Gto
provisions of any Ordinance relating to trustees.

10. Stipulations in contracts, as to time or otherwise,
which would not, before the commencement of the Hongkong
Code of Civil Procedure, have been deemed to be or to have
become of the essence of such contracts in the court in its
equitable jurisdiction shall receive in the court the same
construction and effect as they would formerly have received
in equity.

11.-(1) A mandainu8 or an injunction may be granted,
or a receiver appointed, hy an interlocutory order of the
court in all cases in which it may appear to the court to be
just or convenient that such order should be made; and any
such order may be made either unconditionally or on such
terms and conditions as the court may think just.,
(2) If an injunction is asked, either before, or at, or after
the trial or hearing of any cause or matter,' to prevent any
threatened or apprehended waste or trespass, such injunction
may be, granted, if the court thinks fit, whether the person
against whom such injunction is sought is or is not in
possession under any claim of title or otherwise, or (if out of
possession) does or does. not claim a right to do the act
sought to be restrained. under any colour of title; and
whether the estates claimed by both or 'by either of the
parties are legal or equitable.
[s. 12, rep. No. 43 of 1912 Supp. Sched.]

13. In questions relating to the custody and education of
infants, the rules of equity shall prevail.

14. Generally, in all matters not particularly mentioned
in sections 4 to 13, in which there is any conflict or variance
between the rules of equity and the, rules of the common law
with reference to the same matter, the rules of equity shall
prevail.

Miscellaneous.
15.-(1) The court may, in any civil cause or matter,
call in the aid of one or more assessors specially qualified,
and try or hear such cause or matter wholly or partially with
.the assistance of such assessor or assessors.
(2) The remuneration, if any, to be paid to such assessor
or assessors shall be determined by the court.

16. Any person shall have power to assign personal prop-
erty now by law assignable, including chattels real, directly
to himself and another person, by the like means as he might
assign the same to another.
[Originally No. 4 of 1901. Law Rev. Ord., 1924.] Short title. Interpretation. Rules for concurrent administration by the court of law and equity. 36 & 37 Vict.c. 66, s. 24. [cf. No. 3 of 1901, s. 2.] [s. 3 contd.] [cf. No. 3 of 1901, s. 2.] Ordinance No. 3 of 1901. [cf. No. 3 of 1901, s. 2.] Administration by the court of estate of deceased insolvent person. 36 & 37 Vict.c. 66, s. 25 (1). [cf. No. 7 of 1891.] Statute of limitations. 36 & 37 Vict.c. 66, s. 25(2). [cf. Noi. 5 of 1901, s. 63.] Equitable waste. 36 & 37 Vict.c. 66, s. 25 (3). Merger. 36 & 37 Vict.c. 66, s. 25 (4). Action for possession for immovable property by mortgagor. 36 & 37 Vict.c. 66, s. 25(5). Assignment of debt or chose in action. 36 & 37 Vict.c. 66, s. 25 (6). [cf. No. 5 of 1901.] Stipulations not of the essence of contracts. 36 & 37 Vict.c. 66, s. 25 (7). [cf. No. 3 of 1901, s. 2.] Mandamus, injunction, and receiver 36 & 37 Vict.c. 66, s. 25 (8). [cf. No. 3 of 1901, s. 270.] Custody and eduction of infants. 36 & 37 Vict.c. 66, s. 25 (10). General rule as to conflict between equity and law. 36 & 37 Vict.c. 66, s. 25 (11). Provision for sitting with assessors. 36 & 37 Vict.c. 66, s. 56. Assignment to self and others. 22 & 23 Vict.c. 35, s. 21. [Originally No. 5 of 1901. Law Rev. Ord., 1924.] Short title. Interpretation. H.K. Code, s. 2. Action. 36 & 37 Vict.c. 66, s. 100. The bailiff. Cause. Cause of action. H.K. Code, s. 2.

[Originally No. 4 of 1901. Law Rev. Ord., 1924.] Short title. Interpretation. Rules for concurrent administration by the court of law and equity. 36 & 37 Vict.c. 66, s. 24. [cf. No. 3 of 1901, s. 2.] [s. 3 contd.] [cf. No. 3 of 1901, s. 2.] Ordinance No. 3 of 1901. [cf. No. 3 of 1901, s. 2.] Administration by the court of estate of deceased insolvent person. 36 & 37 Vict.c. 66, s. 25 (1). [cf. No. 7 of 1891.] Statute of limitations. 36 & 37 Vict.c. 66, s. 25(2). [cf. Noi. 5 of 1901, s. 63.] Equitable waste. 36 & 37 Vict.c. 66, s. 25 (3). Merger. 36 & 37 Vict.c. 66, s. 25 (4). Action for possession for immovable property by mortgagor. 36 & 37 Vict.c. 66, s. 25(5). Assignment of debt or chose in action. 36 & 37 Vict.c. 66, s. 25 (6). [cf. No. 5 of 1901.] Stipulations not of the essence of contracts. 36 & 37 Vict.c. 66, s. 25 (7). [cf. No. 3 of 1901, s. 2.] Mandamus, injunction, and receiver 36 & 37 Vict.c. 66, s. 25 (8). [cf. No. 3 of 1901, s. 270.] Custody and eduction of infants. 36 & 37 Vict.c. 66, s. 25 (10). General rule as to conflict between equity and law. 36 & 37 Vict.c. 66, s. 25 (11). Provision for sitting with assessors. 36 & 37 Vict.c. 66, s. 56. Assignment to self and others. 22 & 23 Vict.c. 35, s. 21. [Originally No. 5 of 1901. Law Rev. Ord., 1924.] Short title. Interpretation. H.K. Code, s. 2. Action. 36 & 37 Vict.c. 66, s. 100. The bailiff. Cause. Cause of action. H.K. Code, s. 2.

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