LAW AMENDMENT ORDINANCE, 1901

LAW AMENDMENT ORDINANCE, 1901

THE

ORDINANCES OF HONG KONG.

1901.

No. 1 of 1901, repealed by No. 8 of,
939.

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.]

1. This Ordinance may 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;

Omitted under the provisions of Ord. No. 18 of 1939
(copy at the beginning of this volume).





(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 court, law
and equity shall be administered by the court according to the
rules following-

(i) if any plaintiff or petitioner 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 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 jurisdiction, the court shall give to such plaintiff or
petitioner such and the same 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
,commencement of the Hong Kong 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 cause or
matter, or alleges any ground of equitable defence to, any claim
of the paintiff or petitioner in such cause or matter, the court
shall give to every equitable estate, right or ground of relief so
claimed, and to every equitable defence so alleged, such and the
same effect, by way of defence against the claim of such plaintiff
or petitioner, as the court in its equitable jurisdiction ought to
have given if the same or the like matters had been relied on
by way of defence in any suit ot proceeding instituted therein
for the same orthe like purpose before the commencement of the
Hong Kong Code of Civil Procedure;

(3) the court shall also have powpr to grant to any defendant
in respect of any equitable estate or right or other matter of
equity, and also in respect of any legal estate, right or title





claimed or asserted by him, all s uch relief against any plaintiff
or petitioner as such defendant has properly claimed by his
Pleading and as the court might have granted in any action
brought by the same defendant against the.same plaintiff or
petitioner, and also all such 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 duly 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 any such notice shall thenceforth be 4eemed a party
to such cause or matter, with 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 recognize and take notice of all equitable
estates, rights and titles, and all equitable duties and liabilities
appearing incidentally in the course of any cause or matter, in
the same manner in which,the court in its equitable jurisdiction
would have recognized and taken notice of..the sirne in any suit
or proceeding duly instituted therein before the commencement.
of the Hong Kong 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 against the prosetutio n
of any such cause or proceeding might have been obtained, if
this Ordinance had not been passed, either unconditionally or
on any terms or conditions, may be relied on by way of defence
thereto: Provided that nothing in this Ordinance shall disable
the court from directing a stay of proceedings in any cause or
niatter pending before it, if it thinks fit: and any person,
whether a party or not to any such cause or 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
be 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
justice; and the court shall thereupon make such order as may
be just;

(6) subject to the aforesaid provisions for 'giving effect to
equitable rights and other matters of equity in manner afore-
said and to the other express provisions of this Ordinance, the
court shall recognize 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
c reated by any statute, in the'same * manner as the same would
have been recognized 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 everv 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 respeccof 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 determined,, and all multiplicity of legal
proceedings concerning any of such matters avoided.

Amendment and declwration oi law.

4. In the administration by the court of the assets of any
deceased 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 annuities 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 person may come in under the judgment
or order for the administration of such estate and make such





claims against the same as they may respectively,: be entitled,, to.
by virtue of this Ordinance.

5. No claim of a cestui que tiust 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 impeachinent of waste shall. not
confer or be deemed to have conferred upon the: teridrit 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 creating such estate..

.7. There shall not he 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 possession
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 mortgagee, may sue for such possession, or for the
recovery of such rents and profits, or to prevent or recover
damages in respect of any trespass or other wrong relative
thereto, in his own name only, unless the cause of arises
upon a lease or other contract made by him jointly, with any
other person.

9. Any absolute assignment, by writing under the hapd. of
the assignor (not purporting to be by way of charge only), of
any debt or other legal chose in action, of which express notice in
writing has been given to the debtor, trustee or 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 equities 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
person 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
under and in conformity with the provisions of any Ordinance
relating to trustees.

10. Stipulations in contracts, as to time or otherwise, which
would not, before, the commencement of the Hong Kong 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 asthey would formerly have received in equity.

11.-(1) A mandamus or an injunction may be granted, or
a receiver appointed, by an interlocutory order of the court in
alt 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 uriconditonally or on such terms and
conditions as the,court may think just.

(2) Jf 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 notAn 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.

.12. Subject to the express provisions of any enactment, in
questions relating to the custody and education of infants and
generally in all matters not particularly mentioned in this
Ordinance, in which there was formerly or 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.

13.-(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.

14. Any person shall have power to assign personal property 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.
[31.3.39.][Originally No. 4 of 1901. Law Rev. Ord., 1937. Law Rev. Ord., 1939.] Short title. Interpretation. Rules for concurrent administration by the court of law and equity. 36 & 37 Vict. C. 66, s. 24. [cf. 15 & 16 Geo. 5, c. 49, ss. 36, 37.] [cf. No. 3 of 1901, s. 2.] [cf. 15 & 16 Geo. 5, c. 49, s. 38.] [cf. No. 3 of 1901, s. 2.] [cf. 15 & 16 Geo. 5, c. 49, s. 39.] [s. 3 contd.] Ordinance No. 3 of 1901. [cf. 15 & 16 Geo. 5, c. 49, s. 40.] [cf. No. 3 of 1901, s. 2.] [cf. 15 & 16 Geo. 5, c. 49, s. 41.] [cf. 15 & 16 Geo. 5, c. 49, s. 42.] [cf. 15 & 16 Geo. 5, c. 49, s. 43.] Administration by the court of estate of deceased insolvent person. 36 & 37 Vict. C. 66, s. 25 (1). [cf. No. 10 of 1931.] Statute of limitations. 36 & 37 Vict. C. 66, s. 25 (2). [cf. No. 18 of 1934, s. 108.] Equitable waste. 36 & 37 Vict. C. 66, s. 25 (3). Merger. 36 & 37 Vict. C. 66, s. 25 (4). Action for possession of 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. 18 of 1934.] Stipulations not of the essence of contracts. 36 & 37 Vict. C. 66, s. 25 (7). [cf. No. 3 of 1901, s. 2.] Mandamus, injuction, and receiver. 36 & 37 Vict. C. 66, s. 25 (8). [cf. No. 3 of 1901, s. 270, and 15 & 16 Geo. 5, c. 49, s. 45.] Rules of equity to prevail. 15 & 16 Geo. 5, c. 49, s. 44. Provision for sitting with assessors. 36 & 37 Vict. C. 66, s. 56. Assignment to self and others. 22 & 23 Vict c 35, s. 21.

[31.3.39.][Originally No. 4 of 1901. Law Rev. Ord., 1937. Law Rev. Ord., 1939.] Short title. Interpretation. Rules for concurrent administration by the court of law and equity. 36 & 37 Vict. C. 66, s. 24. [cf. 15 & 16 Geo. 5, c. 49, ss. 36, 37.] [cf. No. 3 of 1901, s. 2.] [cf. 15 & 16 Geo. 5, c. 49, s. 38.] [cf. No. 3 of 1901, s. 2.] [cf. 15 & 16 Geo. 5, c. 49, s. 39.] [s. 3 contd.] Ordinance No. 3 of 1901. [cf. 15 & 16 Geo. 5, c. 49, s. 40.] [cf. No. 3 of 1901, s. 2.] [cf. 15 & 16 Geo. 5, c. 49, s. 41.] [cf. 15 & 16 Geo. 5, c. 49, s. 42.] [cf. 15 & 16 Geo. 5, c. 49, s. 43.] Administration by the court of estate of deceased insolvent person. 36 & 37 Vict. C. 66, s. 25 (1). [cf. No. 10 of 1931.] Statute of limitations. 36 & 37 Vict. C. 66, s. 25 (2). [cf. No. 18 of 1934, s. 108.] Equitable waste. 36 & 37 Vict. C. 66, s. 25 (3). Merger. 36 & 37 Vict. C. 66, s. 25 (4). Action for possession of 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. 18 of 1934.] Stipulations not of the essence of contracts. 36 & 37 Vict. C. 66, s. 25 (7). [cf. No. 3 of 1901, s. 2.] Mandamus, injuction, and receiver. 36 & 37 Vict. C. 66, s. 25 (8). [cf. No. 3 of 1901, s. 270, and 15 & 16 Geo. 5, c. 49, s. 45.] Rules of equity to prevail. 15 & 16 Geo. 5, c. 49, s. 44. Provision for sitting with assessors. 36 & 37 Vict. C. 66, s. 56. Assignment to self and others. 22 & 23 Vict c 35, s. 21.

https://oelawhk.lib.hku.hk/items/show/1471

1937

v2

23

No. 2 of 1901

7