Plaintiff' in conclusion re-asserted his claim to damages for what he considered the \jury he had been subjected to. He was physically incapacitated from \dertaking anything but a chief engineer's situation and his whole reputation had been simply ruined by the base, cruel and malicious allegations of the defendant. He had proved nothing against him, and he defied anyone to sly he was not capable in his business, or that complaint could be made against his character and Giligent attention to duty. In the circumstances he did not think, in asking for $25,000 and his costs, that he was asking for anything more than he was justly entitled to.
In reply to his Lordship he said this completed his ease having through no fault of his own no witnesses to call.
Mr. Ph I um in a most peculiar position, my Lord. If I am to cross-examine I really don't know what to cross-examine upon. He has proved nothing and shown absolutely no cause. He has not proved that this letter which he alleges was a libel was written by Mr. Weir all, or that he was responsible for its being written, I therefore apply for " non-suit, your Lordship.
His Lordship—Mr. McElroy, a plaintiff has got to prove his case. You have said you have no further evidence than you have already produced, and Mr. Phillips has applied for a non-suit on the ground that you have not proved whit is necessary. to Jaunch your exse. You cannot call other evidences now hecaus you have no further evidence, and you cannot call Mr. Weir without you subpoua him. You are in this position that you must stand or fall by what you have already proved, and it amounts to this that somebody wrote to you and said thut Mr. Weir had said certain things about you, 'That is you have not proved he did, and therefore it would be wasting the time of the jury and my time and your time to go into any further discussion. I think everyone will see perfectly plainly thnt you' have not the means of proving what you allege against Mr. Weir. It may be the fault of the Chinese or of Chisese law, but it is not possible for me to force these people to come forward and give the evidence want. Under these circumstances I have nothing to do but to admit Mr. Phillips' motion and non-suit you, The result of that is this, that if ata future time you should be uble to prove that this libel and: this slander were uttered, you uvy under certain circumstances be able to do 0, but if you go on and the jury give a verdict against you, then there would be an entire ending.
Mr. Phillips—I will make an application on behalf of my' client for costs. When the case was heard in the Mixed Court the letter was read for the first time in the hearing of Mr. Weir and he repudiated it entirely.
His Lordship—In the ordinary course cases of this kind carry the costs. You are entitled to your costs.
Mr. Me Elroy—Cau't I have the defendant sworn His Lordship—No; the case is at an end.
Mr. MéEltoy—I must say 1 think it is very hard on nie.
His Lordship—You may think it a hardship, but the greatest hardship falls to the lot of these five gentle-n here who have been taken from their businesses to come here with nothing to lay before them, (To the Jury) Gentlemen, your duty is' accomplished and I regret very much that it has been necessary to bring you here under the circumstances.
Mr. McElroy—May I address you for a few minutes, Bly Lord His Lordship—What do you wish to say?
Me. McElroy—I think Iam quite justified in asking for Mr. Weir to he sworn. He has maligned me grossly and I have not the least doubt that he said what was contained in the letter.
His Lordship—IE that is all you have to say it is quite useless, I have dismissed this case and there is an end of it. Iam sorry tohave to say so, but I think the letters which have been read in Court, show that the abuse and possible libel and slander have not altogether been on Mr. Weir's side, and after reading these lotters to complain is simply absurd for you have accused im of everything and called him all the nomics you could lay your tongue to.
27th April. In re Tae Taxo Tue axp Licuter Ca., AND Canc Cut (oN AvPRAL FROM sue Provixctat Court oF Trestst').
His Lordship gave judgment matter in the following term: case which comes on appeal from H.M.'s Court at Tientsin where the Judge of the Provincial Court with the approval of the assessor found for the plaintiff for Os. 3,944 with costs, The facts and findings of the Court have been so carefully and fully set out in the judgment of the Court below that unnecessary for me to go over them again. I think that no ground has been shown for altering the order of the Court below. The judge and the assessor came to the conclusion that the defendants' tug boat was ax the judge expressed i inly to blame' for the collision." He in his judgment explain ed to what extent and in what manner he considered the plaintiffs' junk to blame: he says: At the same time I think that had the paper boat made sure that the Kaitai had seen her before getting #0 close by hanging the Inntern ower the stern, waving it or putting it in some more conspicuous position than on the deck, or by shouting, the collision might possibly have been avoided." I clourly of opinion that the junk being as the judge las found on her proper side of the Fiver she was not bound to do anything but keep her course until there was risk of collision. Ihave said that the only thing the junk was bound to do was to keep her course. Did she dv this? The Court below found and I think in accordance with the evidence that she did keep her course until within about 22 seconds of the colli sion when it was practically inevital Now it is to be found in the cases, but is rule of common sense also, that if by your fault you place another in such a dangerous situation that he fails to do what turns out to be the best thing, you cannot throw the blame of his mistake on In the present case the junk appears to lave been proceeding properly up the river when it found a tug within 200 feet fit. It ported its behn which was the thing to do if the tug followed th proper course and passed on the port side.
turned out the tug was trying to come up the starboard side of the junk but under the circumstances I do not think that the jank can be held to blame for porting its ldn when it did. As to the lantern I do not think that the man who was steering could have been expected to leave the helm and go and fetch it in order to wave it or hang it over the stern. Neither could the other members of the crew be expected to leave their poling to do this. T think that as to the question of a lantern being on the junk or not the balance of evidence is in favour of there having been one. I do not therefore think that the facts found by the Judge Lelow warrant the inference that the plaintiffs' junk was guilty of contributory - negligence. The result of this would be that had the case come before mein my original and not in my appellate jurisdiction'l should have found entirely-for the' plaintiff and given him all damages hie proved himself to have suffered. As the case comes to me on appeal and there has been no appeal by the plaintiff against the amount of damages awarded I think the proper course is for me simply to dismiss the appeal with costs, which so far the costs of the appeal are concerned I assess at $200. I should add for the informa.
of the Court below and other provi ini Courts (1) That the Court below was right in assuming that it had no Admiralty jurisdiction (2) That it was right in deciding which was to blaine without reference to Admiralty rules. (3) That by the Judicature Act 1873, sec: 29 Sub. sec. 9, if ina collision between two ships both ate found to blame, the rule in force in Admiralty that ench ship shall recover from the other half its own damages and be liable to pay half the damages of the other) is to prevail.
Mr. Morgan Phillips appeared for the respondent and Mr, Platt for the appellants, In Rz Joy asp tHe Sas Lire Iysuraxce Compasy oF Canapa, H, P. Wilkinson, on_ behalf. of the iff in this pending suit moved for a ixion to issue to Corea to obtain the evidence of the plaintiff, Mrs. Clara Agnes Joly and Mr. J. N. Jordan. Their testimony Counsel urged was material and necessary and for reasons stated in his affidavit it was not possible for them to attend the Court.
Mr. Plate and Mr. Dunewn McNeill opposed the application on behalf of the defendants the former however taking no part in the argument.
The summons on behalf of the plainti stated as follows Let all parties concerned attend the Judyo in Chamters on Thuisday the 27th day of April 1899, at 1030 o'clock in the forenoon on the heating of an application on behalf of the plaintiff for an Order thnt a Commission issue divested to Her Britannic Majesty's Vice-Consul for the time being at Chemulpo, Corea, for the Examination by Iuterroyatories and Vind race at Seoul Corea of John Newell Jordan, Her Britannic Majesty's Consul General and chary d'agftires, and the plaintiff ra Agnes Joly witnesses on behalf of the plaintiff in this action. And that the dey tions to be taken under and by virtue of the said Commission may be ordered to be filed in this Court, and that parties may be at liberty to use the same as evidence in this action, all just exceptions. And that the atten: dance in Court on the trial of this action of any witnesses who si oder the said Comm with and that t! d postponed untilatter the return of the Comtsission, and that the costs of this application and of the execution of the Order to be made thereupon and all costs incidental thereto be costs in the cause.
Mr. Wilkinson in opening the case said he applied in regard to the above action for a commission to issue to H. M's Vice Consul at Chemulpo for the examination of Mes, July and Me. Jordan vied voce and in support of the application he had filed the following affidavit T Hiram Parkes Wilkinson of Shanghai in the Enipire of China Barrister-at-law Counsel for the plaintiff! make oath and say us follows (1) Tyerily bslievo that. the following are anil necessary witnesses on behalf of tiff namely Juha Newell Jordan Majesty's Charué @'Aga he above named plaintiff Clara' Agnes Joly.
(2) The evidence of the witnesses in the last paragraph is material for the following The said John Newell Jordan as the immediate chief of the late Henry Bencraft, Joly was well acquainted with him and in constant communication with him and is able to give material evidence as to the state of health of the said Berry Bencraft Joly and
Text read from the printed page and cleaned; old type leaves the occasional error.