Shanghai, Oct. 19..
Before his Honour Judge Sin Hong-chang r. Low Long-yan.
This case originally came before the Court some months ago, on a motion by plaintiff that an account be taken in connexion with a deal in sugar which he had entered into with defendant, the transaction involving the sum of $205,150. In the meantime, the matter has been gone into by the British Consul at Swatow (from which place the case was first referred to the Supreme Court) assisted by two Chinese merchants; and upon their finding the sum of Tls. 13,391 to be due to plaintiff, a motion was now! made by Mr. Reader Harris that the report made by the Consul be adopted, and that judgement be given for plaintiff for the amount stated, together with an additional Tls. 1500, to payment of which additional sum defendant had since consented.
Mr. Langley Smith, for defendant, objected to this procedure, claiming that receipt of the Consul's report on the account between the parties did not dispose of the case in its entirety. Defendant still had the right to be heard in the trial of the action. He asked that the motion be dismissed, and that the accounts be referred back to Swatow, certain books being now available which could not be produced before.
His Lordship pointed to a passage in the Consul's report, asserting that the books in question were withheld because defendant was unwilling to produce them, not because he was unable to do so.
The question of procedure was argued at length, and finally his Lordship gave "judgement. The position between the parties, he said, was fairly clear. Some months ago, plaintiff brought an action in the Court at Swatow asking for an account in respect of a certain partnership transaction that he had with defendant. The action was transferred to this Court, and the learned Judge was asked to make an order #t once to take an account, under rule 124 (9). What he did was to order defendant to show cause within three weeks why such an order should not be made. His Lordship though: it had been shown that this course must have been taken according to the Home practice, that if a defendant did not show some preliminary question to be tried heiore the account was taken, the Court would order the account to be taken at once in an action where the writ was specially endorsed for the taking of an account. An order that the account should be filed within 30 days was made, and then a further order was made referring the account to! the Consul at Swatow, who was instructed to obtain the assistance of two Chinese merchants in dealing with the matter. The niatter was very carefully gone into, and the Consul found that the sum of Tls. 13,391.50 was due fo plaintiff from defendant. This report was sent to Shanghai on June 25-last, and the parties were notified. It must have been known to defendant that, in the absence of any settlement on the report, early steps would be taken by plaintiff to bring the matter into Court again to get the account adopted, or judgement passed, or whatever the right order of the Court should be. Put defendant did not do anything. Even when he received notice that the action would be heard that day he did nothing: he gave no notice of any application to be made, and he filed no affidavit. He simply, through his counsel, suggested that the report should be referred back to Swatow, that the wrong procedure had been adopted, and that the motion should be dismissed. Plaintiff's motion asked for (1) the adoption of the report—which was trying out the provisions of rule of the Court—and it seemed to his Lordship that this rule applied to all accounts taken under the provisions of rule 124 (9), as well as any other account which might be taken under any other rule. Acting on that rule, plaintiff asked the Court to adopt the Consul's report, with one variation to which he had the assent of defendant. His motion also asked that judgement be given in his favour for the amount found to be due to him, together with the variation, and that interest should be allowed to him at the rate of 8 per cent. from the date of the last transaction under the partnership. When defendant consented to the matter going to a referee, he must have been satisfied that there was nothing in the action to be tried except the amount due to plaintiff. There was no preliminary question to be decided, and the writ was specially endorsed for an account. One matter on which the Consul had laid considerable stress. was his failure to get certain books, known as Hok Chnan's books, from defendant. These books were regarded as being very important, and defendant was ordered to produce them: his answer was that he could not do so as he had only a five-twelfths share in the business. A strong opinion was formed that the defendant withheld the books only because he did not desire to produce them. His Lordship was now told that the books were available, the reason assigned being that a former manager of the business was now out of prison; but he could not accept the books now. His Lordship could see no good and sufficient reason why the report should be referred back. In the circumstances, the right course would be to adopt the report and enter judgement for -plaintiff for Tls. 13,391. plus Tls. 1,589.96, together with interest at the rate of 7 per cent. per annum from June 25 up to that day, and 5 per cent. until date of payment, with costs.
Text read from the printed page and cleaned; old type leaves the occasional error.