His Honour said he would render his decision on the plea in bar in this make a motion to set a hearing for his demurrer to the plea of Mr. Bassett in the case of Cunningham r. Rodgers before the Court rendered any decision in the case.
His Honour said he would hear any argument Mr. Curtis had to offer on Monday morning.
August 22.
Mr. G. F. Curtis, who represented Albert W. Cunningham, administrator of the estate of Henry H. Cunningham, said he wished to file " demurrer to the plea in abatement of Mr. A. Bassett, counsel for defendant in this case, before the Court rendered its decision on that ples. Mr. Curtis proceeded to offer his argument. He submitted that the Court had power to try this case, and pointed out that the Consular Court, in which Mr. Rodgers sat, had no jurisdiction in Probate matters. He argued that even if the Court had had Probate jurisdiction in this case it was. most "boshed up " piece of business.
His Honour said that the plea in abatement made one point only, viz., that the administrator of the estate of Mr.
[Cunningham in Maine had no right to sue in this Court. If the plea was sustained it would be necessary for Mr. Curtis either to amend his pleadings or forthe finding of the Court to be reversed. The single question before the Court that morning on the pleadings was whether plaintiff had a legal right to appear in|! this Court as administrator of the estate of Henry Cunningham in Maine.
Mr. Curtis replied that if the Con-then the Consul has usurped his position. Counsel proceeded to produce records of what Gonsuls in China had done in Probate matters, and he referred at length to the law on the point. Mr. Curtis was proceeding to refer to the debate in Washington on the Bill creating the United States Court for China fas at present constituted when His Honour said that counsel was going into the merits of the case. The Court would be glad to hear any argument counsel had on the point of the plea, This history Mr. Curtis was. going into and this law were exceedingly interesting and the Court might have to go into it, bnt it was not before the Court that Bassett replied that he had received a letter from Mr. Rodgers in confirmation of the instructions by the Department of State to enter an appearance on his behalf, Mr. Curtis asked for the production of the letter, but Mr. Bassett, while willing to file it in the Court, declined to produce it to Mr. Curt Mr. Curtis said if Mr. Bassett did produce this letter he wold ask the Court to instruct the Clerk to send a certified copy of the petition to Mr. Rodgers and await his reply to it. How this Court could regulate the conduct of the estate of a citizen of Maine passed his comprehension.
In reply, Mr. Bassett asked if Mr. Cunningham was not and never had been an administrator of the effects in China, how could he sue in thix Court? The only thing Mr. Rodgers did was to probate the will brought before him by the executor Mr. Danning. Mr. Rodgers never had possession of Mr. Cunningham's property and he had no right te ~The will was placed in the hands of Mr. Dunning and h found himself to be executor. One of his as executor was to take the will to and prove it. It had been held that Consular Courts had Probate jarisdiction and, therefore, it had authority to judgment as to the validity of:
His Honour said the demurrer to the plea in abatement was over-ruled and the Court would proceed to deliver' its decision on the plea in abatement.
Mr. Curtis said he wished to file an exception to this ruling and also an application for a new trial.
His Hononr—On the plea in abatement the Court says as follows The question raised by the plea in abatement filed herein is whether an administrator appointed in the State of prosecute a suit in the extraterritorial Maine can, in his capacity
jurisdiction of China.
The pleadings in this case disclose the following facts: On the tenth day of June, 1905, Henry H. Cunningham, an American citizen, died at Shanj ina, leaving will in which Edward H. Danning was named as executor. On June 26, 1905, ning presented said will to the United States Consular Court at Shanghai for probate. Consul-General James Linn Rodgers, sitting as Judge, admittd the will to probate and confirmed sail Edward H. Dunning as executor. The estate was then administered by sail executor under the direction said Consular Court, in accordance with the provisions of the last will and testament of the testator, On the seventeenth day of 1907. Albert W. Cunningham, administrator of the estate of Henry H. Canningham for the State of Maine, filed suit against James Linn Rodgers, Consul-General of the United States at Shanghai, China, charging hin with negligence that Rodgers administered the estate of said Henry H, Canning Thana in his. judi ity, and wot cordance with the provisions of Sections 1709, 1710 and 1711 of the Revised Statutes of the United States, and asked for a judgment against said James Lino Rodgers in the sum of $58,165.85.
In abatement of this suit defendant files a plea in which he contends that said plaintiff Albert W. Cunningham, being the administrator of the estate of Henry H. Cunningham in the State of Maine only, is without right or authority in his capacity as such administrator to prosecute a suit of any character in the extraterritorial jurisdiction of China.
It is manifest from the facts recited in the petition that Consul-General Rodgers entertained the view that be, as Judge of the United States Consular Court sitting in Shanghai, had jaristiction under the common law to probate wills and administer the estates of Americans decedent la China, and that he was of the opinion that Henry H. Cunningham was a citizen of the United States domiciled in Chinn He therefore took jurisdiction, admitted ith the law in force in China, the common law, This Court hax held (/n Re Pre bate of Will of John P. Roberts, May 15, 1907) that the Unitel States Court for China has jurisdiction to probate wills and administer estates of Americans decedent in China in common law, and that prior to the inauguration of this Court, the American Consular Courts in China were clothe! with the came jurisdiction. This Court also held (In Re: Probate of Will ut Young John Allen, August 16, 1907) that an American citizen may be domi-oiled in China.
The significance.of the foregoing decisions is that the Court holds the view that under the treaties of extrsnal from
Text read from the printed page and cleaned; old type leaves the occasional error.