Shanghai, 28th November.
Before Sir Hiraw 8, Witxrxsoy, Chief Justice.
Cuexc Jr Kuexo (appellant) Yar You-xz0 (respondent).
The hearing of this motion, adjourned from Thureday last, was resumed.
His Lordship said this suit was adjourned for consideration of the point whether the appellant could now plead the Statute of ions, and the Court had arrived at the conclusion that he! special grounds to be adduced as Order 58, Rule 4 of the Supreme" Court Rules home. The Ruleat home emphasised that such evidence should be admitted on special grounds only.
His Lordship oaked what construction Counsel put on Rule 158.
Council said that he understood it to mean that if a party had not, for any reason, adducoil certain evidence which he wished to bring before the Court of Appesl, he had to ask the Court's leave, and the Court had discretionary power to refuse or accept that evidence, each case standing on its own m Lordship quoted the second par: graph of the rule with regard to party alleging any facts which had ce: to his knowledge after the trial in the Court below. Could "this be applied to the present case Counsel replied that he could hardly say that. Ho thought his case was dealt with in the last two lines. It could hardly be said that this witness brought avy new facts before the Court. He thought Mr. Taylor in his well-known book on evidence (8th Edition, Eh. J, part 3, 4) expressed very clourly "he principles on which further evidence was allowed on appeal. The section in question referred to the case of Weston, which was one extreme. Counsel proposed to is favour nnd also those in order to show his Lord-a tions made. In the case of Digsby v. Dickenson (Law Journal, 1887, v.46 Chancery, p. 280 and 4 Chancery Division, p 24) the suit was for damages for nuisance. It turned out that there was some misunderstanding as to what ind of asphalt was meant and the Court fave reasons why it had decided to grant Yeave to the plaintiff to call further evidence on appeal. That was, of course, stronger case than the present In Weston's case (4 Chancery Di p. 579) they found the other this case the Master of Rolls refused the application to allow Mr. Weston to give further evidence as it was his duty to have given it in the first place. It would be dangerous, the Court thought, to allow 8 man to give further evidence in his own favour after the turning point of the case. In this case, however, Mr. Weston was the only man living who could have given evidence in his own favour. Counsel submitted that his case lay between the two. In the case of Dicks c. Brooks (3 Chancery Division, p. 652) the Master of the Rolls said that while he was careful not to encourage perjury by allowing evidence tobe adduced after an action, yet this was e proper case for allowing it. T'us ease seemed to be on all fours with the present one.
His Lordship sid that in the case cited the fresh evi led to prove printed evidence. The witness was to prove that a certain print appeared in the "Ilastrated London News" and the evidence would not have been worth anything if the paper was not produced.
Mr. White-Cooper referred to the case of. ce-plaintiffs in the suit; nine of them asked for liberty to attend on the hearing of the appeal snd give evidence. They pleaded that they were unable through illness, absence, and other rersons to tend the hearing in the lower Court. Lord Justice Cotton said that the evidence could only be allowed on special grounds, and: in this case he did not think there were special grounds, Counsel had already referred to the case of Saunders Saunders. He submitted that ix view of the greater latitude allowed in this Court, and in view of the fact that the provincial Courts were, he thought he might say, rather amateurish, the appellant should be allowed to adduce this evidence or else the case should be retried at Amoy.
His Lordship said that while he did not wish to say much about the case at the present stage, he would state that he did not believe what appellant said about not knowing that it was necessary to produce evidence at the trial at Amoy.
Counsel said that while he did not wish to go into the question of appellant's Counsel, yet ho thought it ought to be borne in mind that a man who hed instructed Counsel to defend him very often took no further troup! lant seemed to think that ments spoke for themsel outside of the evidence proposed the affidavit. His Lords the proof of the would give (handed in proof). also asked his Lordship to bear in mind the delay on the part of respondent in taking the legal proceedings, His Lordship said that after considerable doubt he had come to the conclusion that he ought not to allow the evidence to be called. He would not at the present stage give his reasons fully. It was 1 very proper application to make, and ho did not refuse it without considerable hesitation. The question of the merits of the case had now to be dealt with.
Mr. Whitu-Cooper asked if his Lordip would not consider the question of new trial.
His Lordship did not see any grounds for doing so.
Counsel drow his Lordship's attention to the difficulty appellant had in making himself understood at the proceedings.
His Lordship did not think much of that. He thought the lower Court had acted quite rightly. Although a Chinaman from Amoy went to Singapore for some time it was not likely ho would forget the Amoy dialect, was satisfied that appellant was able to follow the thought the trial at Amoy had been conducted with grest care. No formal application had been made for a new trial and his Lordship did not refuse one, but merely said that ho sino grounds for it at present.' Counsel would have to convince him about it. The hearing of the appeal would take place on Thursday at 10.30 a.m. ressons for this would be given a a (page 29), in which Lord Justice James sUxTORE slit not to be allowed todo so. Thej of Wilson e. Church in the same volume CLARKE'S WORLD-FAMED BLOOD Inter stage of the case. There still|said that if party could strengthen his jose gh gab medical peel: The most es Blood romained the point as to adducing case by fresh evidence be ought to be Scrofula, further evidence.
'Mr. White-Cooper said that the cases he would have te cite were authorities dealing with the rules as they stood at home, whereas the rules for the Supreme. Court here gave greater latitude. The rule dealing with fresh evidence here was' allowed to adduce it.
His Lordship remarked that this was peculiar case and that the evidence was no use afterwards.
Counsel then referred to the case of Arnison Smith (Law Reports, 41, Chancery Division, p. 98) in which the Scurvy, Bad Legs, Skin and Blood Diseases, Pimplee, ard Sores of any kind we solicited to give & a trial to test its value. yi Bold trespyiere bean effected by it. Bold rerywhere Od. per bottle. Beware of weilest ica tations and substitutes,
Text read from the printed page and cleaned; old type leaves the occasional error.