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Colonial Cases

Municipal Council v. Ince, 1885

[local government]

Municipal Council v. Ince

Supreme Court for China and Japan
Rennie CJ, 19 January 1885
Source: North China Herald, 28 January 1885

LAW REPORTS
IN H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.
Shanghai, 19th Jany.
Before Sir R. Temple Rennie, Knight, Chief Justice.
ROBERT FORRESTER THORBURN v. HENRY ALEXANDER INCE, substituted for JOHN MYRIE CORY.
  Mr. Robinson appeared for the Plaintiff, and Mr. Wainewright for the defendant.
  This was a suit brought by the Municipal Council through their Secretary against the Defendant, who is the holder of a lot of land on the Soochow Creek, to restrain him from building on his lot without first obtaining the consent of the proper majority of land renters and others entitled to vote in public meeting assembled as provided by the Land Regulations. The Council also asked for an interim injunction to restrain the Defendant from building on his lot until this suit was disposed of by the Court.  The Defendant gave an undertaking not to build while the suit was pending. [Not transcribed]
  Our report will be continued in our next issue.
NORTH China Herald, 4 February 1885
LAW REPORTS.
IN H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.
.  .  .  
His Lordship, in giving judgment, said, - This is a case in which one can come to a conclusion at once.  You see it obviously was the intention of the parties that the whole matter should be settled by the decree in the Mixed Court which the defendant had expressed his willingness to comply with; and therefore, had it not been for the last paragraph in that decree and the evidence Mr. Kingsmill has given, I should certainly be inclined to say there was an end of the whole matter.  But the last paragraph says, "As to the stone paving, window frames, &c., whether those materials were ever counted in this amount must be again referred to Mr. Kingsmill for his further report.  Should they not be included, the Court will allow the contractor to take them back." That shows that as to these items the decree was not final.  Mr. Kingsmill's supplementary report shows that he meant the stone-paving to be included, so as regards stone pavements I take it that paragraph must go out.  Then with regard to the other matters, Mr. Kingsmill says he distinctly intended to include everything he saw, and the plaintiff did not point them out.  But on the other hand, with regard to the windows, they are exempted in a measure from the decree in the Mixed Court and are not alluded to in the supplementary report; and he says today that he certainly did not estimate them, and he saw them.  So as regards the window frames I think he case will hold for the plaintiff.  I shall therefore give judgment for Tls. 5,000 and Tls. 217.34.
  And then as regards par. 10 - I should have mentioned that before - as the defendant has stated that Zaw Kee-woo, the person who gave the order, was a person interested in the contract, and it was not taken into consideration in Mr. Kingsmill's report, the plaintiff ought to have that.  I shall therefore give judgment for the Tls. 5,000, Tls. 82.10 and Tls,. 217/34.  The other items I shall disallow.
  Mr. Latham asked for costs, and interest on the Tls. 5,000 since the date of the decree - the 30th May, 1864.
  Mr. Harvie objected, but his Lordship decided in favour of Mr. Latham, and judgment was accordingly entered as above, with interest on the Tls. 5,000 at 8 per cent since the 30th May, 1864, and costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School