Shanghai, 6th April, Before 0, N. Dexxy, Esq., Consul-General, sitting as Judge.
Cuartes Evorxe Hin v. M. T. Yares, Agent for Evizanern Apass Hr, Mr. R. E, Watsewnriour appeared for the plaintiff, Mr. J. J, HENDERSON appeared for the defendant, Vhis cage was before the Court on the 5th and 6th of September Last, on " motion by the defendant to set aside a temporary injunction granted to Mr. Hill, whereby Dr. Yates, as the agent for Mrs, Hill, was ordered to pay moneys accruing from certain property in the French Concession into the U.S. Consulate: General, instead of sending them to Birs, he Court then reserved judgment, and by a decision rendered by the Court on Friday last, the injunction was anode permanent, and the money that had accumulated in the Consulate-General as accruing from the property was ordered to be handed over to Mr. Hill's legal representative, Mr. HESDERSON now moved that the sum of 'I'ls, 250 held under the injunction be retained Ly the Court subject to its further order regarding an allowance for Counsel's fees on behalf of Mrs. Hill. support of the motion, Mr. Henderson explained that the Counsel's fee was that ina ease which had been pending in the Court between Mr. and Dr. Yates who acted as agent for Mrs. He briefly reviewed the proceedings in the case, and then went on to say that the present motion was based upon an affidavit by Mr. Mylurgh, attorney for Mrs. Hill, which eet forth that she had no other money or property within the jurisdiction of the Court, and to the best of know. ledge and belief she had no money or property whatever, save and except that which had been the subject matter of the suit, Upon this statement of facts, he asked the Court, in the exercise of its equity jurisdic. tion, and in view of the still pending dispute between Mr. and Mre, "Hill, that Mra, should. be allowed a reasonable sum out of the money paid into Court, to pay her ex-youses in defend the action, which was instituted practically to take away from her property given to her by her husband, which to this day was registered name on records of the Court. He maintained that under the circumstances, it was right and proper for her to defend the suit, and the sun asked for 1 services rei red was most reasonable, "te could not be said that it was improper for Mrs, Hill to defend her rights to property given to her maw years ago, and he was unaware of any affidavit the file disputing the facts set forth by Mr. Myburgh. The property was worth many thousand taels, and even if the money accruing from it now belonged to Mr. it was not an unusual practice of Courts in tke United States, or beyond the practice of this Court in the exercise of its equity powers, to order necessary legal expenses to be paid by the husband—in such cases it was usual for Courts to allow reasouable amounts for Counsel's fees.
Mr, Warewarcur, on behalf of Mr, Hill, bad very little to say Ie him rather inconve of this kind should not ba his Honour's predecessor Court. It was of course a continuous Court, but the facts of the case were necessarily not 80 present to his Honour's mind as they were tot Mr. Bailey; therefore it was inconvenient or untlesirable that the application should have been postponed until there was a change in the personnel of the Court. He would first mention the fact, which his Honour was no doubt aware of, that it bad never been the practice of the Court to give any costs whatever, except Court fees, to plaintiff or defendant, successful or unsuccessful, This had been a great g Toast er been interpreted i tioners, that no such provision,
uch a to admit of costs being allowed except rds the actual Court fees, Therefore when Mr. Henderson came forward and asked for substantial costs, his appl tion was, to eay the least, a rather novel one, and oue,'he could safely say, that had never been granted. Mr. Wiley Wells, while be presided over the Court, did once make an allowance of $20 for Attorney's fee, when it was specially prayed for, and that utmost limit of costs as attorney's fe had been allowed within his knowledge idea whether the sum of Tls. 250 was a reasonable one or not. He had no informa. tion on the point, but with reference to that had been filed by Mr. Myburgh, who called himself Attorney for Mrs, Hill, he might place againat it an affidavit filed by Mr. Hill before he went to Amer which act forth, in the third paragraph, thal Mire. Hill had in her posses min, or under her control, nearly the whole erty amounting to $50,000, sequence he had bad to borrow money for his travelling expenses. That was the allegation of Mr. Hill as to the property at the disposal of his wife, and it seemed to him to carry more weight than Mr. Myburgh's ati. davit, who merely spoke from the best of hi knowledge and belief. As a matter of fact it was questionable whether Mr. Myburgh was the Attorney for Mrs, inasmuch as according to the law of the State from which she came, it was necessary that her Power of Attorney should have the concurrence of her to give it effect, which vei that Birs, Hill was not 20 badly off as) Mr, Myburgh's best information and belief would lead the Court to suppose, and ho submitted that the application was auc that the Court should not entertain, beoruee it was out of time, there was no precedent, and it was not supported by the fact Mr. HENDERSON, in reply, to time, client had received no notice that the motion was to be made a permanent one, maintaining that such a construe: tion could not be put upon the prayer of the original petition. He pointed out that the present motion was filed a fow hours after the decision was given whereby the money collected from the, property was handed over to Mr, dill, therefore it was plain that there had beet no delay in bring the matter for. ward, In reference to what his learned friend Mr. We ight had srid about Tiains an allowance of $100 was mai i ails to those urged in favour ov, He maintained that Courts of Admiralty ercising equity jurisdiction, the coats wer the discretion of the Court, and that it was quite competent for the Gourt to mal the allowance asked for. In regard to what Mr. Wainewright-had said about the law of the State of Connecticut, which was the State to which Mes, Hill belouge it did not apply to this Court any more an the law of Timbuctoo. Thia Court wa the laws of the United State y particular State, ed-by Mr. Hill as being in. his wi or under her control, Mr. Hill affidavit algo stated that it wae his personal possible for property; therefore it was im-Hill to avail herself of it without being guilty of embezzlement, He also mentioned that the suit, vhich was taken in America, and which' necessitated the action taken by Mr. Hill in Court, had now been followed by anoth action by Mr, Hill, for a divorce against wife, which 1 pens ting, and in ooneluclaimed that the present motion ranted, to the Cour, Mr. Huxpens the money which had bes vad into Court-scerned from property conveyed tu Mrs. Hill by her lasband in 1861, from which time up to 1878 or 1880 she bad. collected the rents, and the property had been absolutely under her control, being registered in her owa name. If the present motion was not groated, the money would pass beyond the control of the Court, Mr. WaiNzWRiGHT mentioned that -tho money had already -been paid out of the Court, Mr. Bailey's compradore order having been cashed.
Mr. Henperson said he might thi an argument to show the great haate.of Alr, Hill's representative to get the money into his own bande, His Hoxour thought there would be no difficulty in that respect, as the Court. would have the control of the money accruing from. the property at present. He would take the papers in the case, and give his decision in a Fav-on une v. 0. A. Sar, Mr. R. E, Wacxewniaut appeared for the plaintiff, Mr. J. J. Hunperson appeared for: tho defendant. was amotion by Mr. Henderson for the costs to be divided between the parties, It will be remembered that the action was one to recover the sum of Tls, 999,66 for the building of a lorcha by the plaintiff for th defendant, and judgment was given in January last by D: H. Bailey, Esq., late Consul-General, for Tle, 362.41, with costa, Mr. HENDERSON pointed out that' the defendant had admitted his indebtedness to the extent of Tls. 300, which plaintiff refused to accept, and that, in contesting-the case, he claimed a set-off of Tis, 900 odd. 'Ys. 637.25 were a'lowed.by the Court, which showed that the defendant was justified in Sighting the suit. He pointed out fiat neither lo nor his client were present when the judgment was given, and consequently no plication was than' made with regard to jon of the costs as uow proposed. He maintained that the greater part of the costs were piled-up by plaintiff calling five or six
Text read from the printed page and cleaned; old type leaves the occasional error.