10th April, 1888, Before General J. D. Kewwepy, U.S.
Consul-General, Acting Sudicially.
Rey, G. F, Fircw v, Rey. J. M. W.
Mr. R. E, Warxewnicur appeared for the Plaintiff, and Mr. H. Browerr for the Defendent.
In this suit, the Plaintiff acted as agent, for aad on behalf of the Board of Foreign Missions of the Presbyterian Church of the United States of America, The Defendant domnrrod to the proceeding, The following is the Petition 1.—That the above-named Board of Forei Missions of the Presbyterian Church in the United States of America is a body of persons incorporated by act (Chapter 187) of the Legis-nature of the State of New York in the said United States passed on the 12th day of April 1862 for the purpose of establishing and conducting Christian Missions among the un; evangelised or n nations: the gene Giffuslon of Christianity. The said Board has established Missions in various parts of China and amongst them a mission known as the Central China Mission and another mission known as the North-China Mission.
2.—The Plaintiff is a citizen of the United States and is a member of the said Central China. Mission and is the duly appointed Agent of the said Board for the purposes here-matter mentioned.
3,—The defendant is a citizen of the United States and isa member of the said Central China Mission. Each of them, the plaintiff and the defendant, was appointed by and is paid a salary by the said Board and is under the control of the said Board and is in duty bound to obey all lawful orders and directions of the said Board.
4.—To aid its missionary work in China the said Board established at Shanghai printing office known as the American Presbyterian Mission Pres, where the work of printing and publishing is carried on under the superintendence of a member of the said Central China Mission appointed for that purpose by the said Board. The plant and machinery employed in connection with the said Press are the property of the said Board and the Revenue derived from the said Press forms art of the general revenue of the said Board.
'5.—The suid Board has for some years past appointed from time to time one of the members of its Mission in Central China to act southern departments. After a keen debate, as Treasurer in connection with such last joned Mission and the said North-China Mission and such officer has been the Treasurer of the Central and North-Chi Missions. Such last mentioned office has usually of late years been held in conjunction with the office of Superintendent of the said Mission Press, 6.—For some time previous and down to the end of the year 1887 the offices of Superintendent of the said Mission Press and Treasurer of the Central and North China Missions were respectively held by the defendant.
7.—In the month June 1887 the said Board decided for reasons quite apart from the defendant's character or ability that it was desi-table to change the management of the said Mission Press and at a meeting of the said Board held in New York on the 6th day of September 1887, the plaintiff was appointed Superintendent of the said Mission Press and Treasurer of the said Central and North China Missions and it was decided that such appoint; ment should take effect on the Ist day of January 1888 and such appointment and decision Were in due course communicated by the said Board to both the plaintiff and the defendant and the defendant was directed to transfer the said offices to his successor (the plaintiff) at the time designed.
dane although applied to by the plaintiff to preceding paragraph the defennotwicelanding the Hate eenttonsd in deliver over to him on the Ist day of Janu-
the fin appertaining to the sai piteree Steee seat Treasurership yet. refused to deliver over the same and although a similar application has been made to him on several abeoqvont occa sions he still refuses to deliver over the same.
9.—Acting in accordance with the instructions received by him from the ssid Board the plaintiff informed the said Board by telegraph of the defendant's refusal to hand over to him the property of the Board and on the 7th day of March instant he (the plaintiff) received by telegraph an order from the said Beand to take possession of the said property.
The plaintiff therefore prays 1,—That the defendant may be ordered and decreed to hand over to the plaintiff forthwith charge of the said Mission Press and all the property ofthe said Board spperpapers and other property in his (the defend-taining thereto and also all moneys, books, ant's) hands or under his control as such Treasurer as aforesaid or in the alternative, that a receiver may be appointed to take possession of the before mentioned property and to superintend the working of the said Mission Press.
2—That the defendant may be ordered to the costs of this suit.
—That the plaintiff as such agent as aforesaid may have euch other and further relief as to our Honourable Court may seem meet.
The Defendant in his demurrer says That the Plaintiff has not legal capacity another action pending n the said Board of Foreign Missions and the Defendant.
That this demurrer is not interposed for the purpose of delay, but because the Defendant believes that he has substantial grounds therefor.
The Covxr—In this case, the Defendant, instead of answering, pleads demurrer.
Mr. WarNewniGHT said the facts must be before the Court, and till they were before the Court he objected to the demurrer; the whole thing was out of order. The De-tendent should put in his answer first and then he could demur.
The Covrr sustained Mr. Wainewright, and said that there was no evidence on the face of the petition that there was another action pending. The counsel for the De-tendent must therefore confine himself to the first point.
Mr. Browerr said that in support of the first point he could safely leave the matter to the discretion of the Court. He said—It is a very unusual proceeding on the part of missionaries to bring each other into Courts of law, and I would simply point out that the telegraphic instructions of the 7th March referred to in the petition, if identical with the duplicate given to the Defendent by the Plaintiff, providing was authorized and correctly transmitted constitute a message to the Plaintiff to take over possession, bears no evidence of an; intention on the part of the Board to the aid of this Court.
Mr. Warvewnicut said—The telegram must be read by the light of letters received which were not before the Court. They must go into the evidence for that, To "take possession" means to use all necessary means for obtaining possession, especially when read in the light of previous correspondence. The matter was not to be disposed of on demurrer. When a person is telegraphed to do a certain thing, it means that he is to do all in his power to succeed. The question can only be settled when the whole of the evidence is before the Court, TheCovnt—I have given this matter some consideration since the filing of the demurrer, and consequently am prepared without going into any details in regard to the matter to say that Ido not think on the face of the petition and the facts therein set forth, that the demurrer can be sustained. Take the 9th allegation on which the learned counsel for the Defendent relies and would deduce the conclusion of law that Mr. Fitch has not legal capacity to sue; and the reading of that allegation does not upon its face show that there is no legal capacity in him to sue, On the contrary, it shows that he was advised on 9th March by telegram from the Board to take possession of the property. This was definite instructions rom them, I quite concur with the learned counsel for the Plaintiff that the telegram was definite instructions to him. The Board being in America, and the Plaintiff in China, I consider this telegram conferred ample power on him to take all legal steps to carry out the instructions of the Board, As to what may be the eventuation of this sui he certainly has legal authority on. that telegram to begin it. The result is, of course, & matter of proof and evident to be adduced at the trial. Whether Mis-jon aries should come into Court or not is a matter for them to settle among themselves; they have as much right to institute legal proceeding as others, The result of the trial through the evidence adduced will show to the world that they are desirous of abiding by the decisions of egal tribunals. While each conscientiously holds to the opinion of his right to the property, they can both hear the case with temper, and I hope this good temper may be maintained throughout the case, The case will be proceeded with' on Tuesday afternoon at 2 p.m,
Text read from the printed page and cleaned; old type leaves the occasional error.