Shanghai, 22nd October. Before Sir Epuwxp Hoxxny, Knight, Chief Fuilge, Inve J. L. Duowx v, R. Hart, Plaintiff in person.
Messrs Hanwoop & Warxewnrour for defendant.
Plaintiff moved the Court to set aside the order of the Law Secretary, that the petition in this case be taken off the file, or to grant a re-hearing of the motion on which that order was made. not having robed: He did not know the Mr. Buoww opened by apologising for
motion was to be brought on in open Court.
His Loupsur intimated in reply that when Counsel appeared in Court he always expected to see them robed.
Mr. Brows resumed—He appeared to ask that the order made by the Law Secretary, that the petition should be taken off the file of the Court, be set aside, if his Lordship should see fit to do s0, or that a re-hearing of the original motion should be granted. He did not know if his Lordship had looked through the loonments, and whether it would be necessary for him even to show cause why the motion should he set aside. The motion and affidavit first nade by defendant were for a change of venue, the defendant amended under the ordinary power of the Court.
His Lonpsurr, having looked through the papers, said he felt sure that he had decided the point before—the absolute necessity of a plaintiff following a defendant and instituting his suit in the Court to whose jurisdiction the defendant was at the time amenable.
Mr. Brown believed there was no case decided, but that his Lordship referred to the point in his instructions, published some time ago.
His Lorpsuir said that when he came to Shanghai he found many cases in which the question appeared, and he had, in view of this, framed the instructions referred to, but he believed he had also decided it in one case.
Mr. Brown said he had joined the Court since his Lordship's absence in England, but had asked several practitioners whether there had been such case, without being able to find one, Addressing himself to the question, he said his Lordship would see that there was a distinction made between transferring the case and taking the petition off the file.
His Lonpsuir did not think the Court had any power to transfer the case, Mr. Brown continued—The action was 'a personal one, and being personal was of a transitory nature. It was competent for him to file his action in this Court, and it was optional with him where he should file it; or in the words of the Books, that he could file where it suited him, so long as the defendant raised no objection. OF the objection raised, he would speak afterwards. He contended under the——rule of the Order in Cuuncil, that the action was regularly anid properly brought. He was aware that there were two following section one which gave the Supreme Court a special, and the other an ordinary jurisdiction, but the petition being in order, could not be altogether taken off the file. He next referred his Lordship to the affidavit filed on behalf of the defendant. In the first paragraph he said that he resided in Peking. Against this, however, he (Mr. B.) urged that mere residence was not sutticient. Although the defendant said he resided at Peking, he did not venture to say that his business was there, and the learned Cou contended that defendant's proper residence was where his business called him, which was the generally recognised rule with Oustoms employes in the whole of China. In the 5th paragraph of the affidavit, defendant said it would be very inconvenient for him defend this action in Shanghai, but it would be the same for him (plaintiff) to go to Peking. He would have all the inconveniences that the defendant might have, and besides loss of time, would incur loss of business and emoluments, and other things in addition to the trouble necessary to appeal if the case was adverse to him. Doubtless that appeal would hold good also in the case of defendant, if he were dissatisfied with the decision of the Consular Court, supposing it went against him. The cause of action had. not arisen at Peking, but, if it had arisen at all, at various' places mentioned in the petition. That brought him to his own affidavit. He had in that affidavit gone greatly into the question of inconveniences, The first paragraph
Text read from the printed page and cleaned; old type leaves the occasional error.