LAW AMENDMENT ORDINANCE, 1901

LAW AMENDMENT ORDINANCE, 1901

No. 2 of 1901.
To amend and declare in certain respects the Law to be
administered in the Supreme Court. [1st July, 1901.]
1. The Law Amendment Ordinance, 1901.

2. In this Ordinance,-

Cause ' means any action, suit, or other original proceeding
between a plaintiff and a defendant :
'Action' means a civil proceeding commenced by writ of sum-
mons or in such other manner as may be prescribed by enactment.

'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
followinu

(1) if any plaintiff or petitioner claims to be entitled to any equit-
able 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 belore the commencement 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 cause or matter, or alleges any
ground of equitable defence to any claim of the plaintiff or
petitioner in such cause or matter, the Court shall give to every

* As amended by No. 1 of 1912 and No. 2 of 1912.





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
or proceeding instituted therein for the same or the like purrose
before the commencement of the Hongkong Code of Civil Proce-
dure;

(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 any 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 might have granted in any action brought by the same defend-
ant 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, whe-
ther 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
deemed 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 recognise 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
sarne manner in which the Court in its equitable Jurisdiction would
have recognised and taken notice of the same in any suit or pro-
ceeding 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 against the prosecution 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 wa of defence thereto : Provided that nothing
in this Ordinance shall disable the Court from directing a stay of
proceedings in any cause br matter pchding 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 other-
wise, 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 aforesaid and
to the other express provisions of this Ordinance, the 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
remedie's whatsoever as any of the parties thereto may appear to be
entitled to in respect of any and every legal or equitable claim pro-
perly 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 Declaration of 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 valuaiion 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 per-
sons who in any such case, would be entitled to prove for and receive

As amended by No. 1 of 1912, No. 8 of 1912 and No. 48 of 1912.





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 clairn 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 creating such estate.

7. There shall not be any merger by operation of law ord of any
estate, the beneficial interest in which would not be deemed to be
merored 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 action arises upon a lease or other contract made
by him jointly with any other person.

9. Any absolute assignment, by writing under the hand of the
assignor (not purporting to be bv 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 bave 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
As amended by No. 50 of 1911.
As amended by No. 1 of 1912.





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 op-
posing 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 salne, 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 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 mandamus or an injunction may be granted, or a re-
ceiver appointed, by 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
up-conditionally 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 injunc-
ion 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 sec-
tions 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.

As amended by No. 50 of 1911,

Miscellaneous Prorislovs.
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 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.
Short title. Interpretation. Rules for concurrent administration by the Court of law and equity.[36 & 37 Vict. C.66s.24.] cf.No.3 of 1901 s.2. cf.No.3 of 1901 s.2. 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.66s.25 (1).] [cf.No.7 of 1891.] Statute of limitations.[36 & 37 Vict.c.66s.25(2).]See No.5 of 1901 c.63. Equitable waste.[ib.s.25(3).] Merger.[ib.s.25(4).] Action for possession of immovable property by mortgagor.[ib.s.25(5).] Assignment of debt or chose in action.[ib.s.25(6).] [cf.No. 5 of 1901.] Stipulations not of the essence of contracts.[36 & 37 Vict.c.66s.25 (7).]cf.No.3 of 1901 s.2. Mandamus,injunction,and receiver.[ib.s.25(8).] Custody and education of infants.[ib.s.25 (10).] General rule as to conflict between equity and law.[ib.s.25 (11).] Provision for sitting with assessors.[36 & 37 Vict.c.66s.56.] Assignment to self and others.,[22 & 23 Vict.c.35s.21.]

Short title. Interpretation. Rules for concurrent administration by the Court of law and equity.[36 & 37 Vict. C.66s.24.] cf.No.3 of 1901 s.2. cf.No.3 of 1901 s.2. 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.66s.25 (1).] [cf.No.7 of 1891.] Statute of limitations.[36 & 37 Vict.c.66s.25(2).]See No.5 of 1901 c.63. Equitable waste.[ib.s.25(3).] Merger.[ib.s.25(4).] Action for possession of immovable property by mortgagor.[ib.s.25(5).] Assignment of debt or chose in action.[ib.s.25(6).] [cf.No. 5 of 1901.] Stipulations not of the essence of contracts.[36 & 37 Vict.c.66s.25 (7).]cf.No.3 of 1901 s.2. Mandamus,injunction,and receiver.[ib.s.25(8).] Custody and education of infants.[ib.s.25 (10).] General rule as to conflict between equity and law.[ib.s.25 (11).] Provision for sitting with assessors.[36 & 37 Vict.c.66s.56.] Assignment to self and others.,[22 & 23 Vict.c.35s.21.]

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