Supreme Court Ruling on Important Technical Point An important ruling on a technical question concerning "setoff" against a claim was given in H. M. Supreme Court last Friday, by his Honour Judge Skinner Turner, the parties fo the action being a Chinese Hong, Hsin Chung, and a British firm, Messrs. Eh. Goldrei'Foucard.
Mr. H. P. Wilkinson appeared for plaintiffs, and Mr.
H. Lipson Ward for defendants.
His Lordship said: This is a motion-to strike out certain paragraphs in a defence, which owing to the extreme importance of the matter has been argued in open Court. I wish to say at the outset that I am much indebted to Mr. Wilkinson and Mr. Ward for the help they have given me and for the careful way in which their respective cases were argued. The action is for the price of goods: 70 cases duck albumen: sold_and delivered by the plaintiffs a Chinese hong, to the defendants a British firm. For the purposes of their claim the plaintiffs have filed a written submission to the jurisdiction of the Court and have paid into Court $250 as security for costs, in accordance with the provisions of the Order in Council and our practice thereunder. The defence substantially is that the defendants sold the consignment for account and risk of the plaintiffs; but in addition the defendants seek to plead that there is due and owing to themselves from the plaintiffs a sum excess of the claim in respect of awards in certain arbitrations held in London over a previous contract for the sale of hen yolk by the plaintiffs to the defendants: and they seek to setoff this sum, or so much of it as amounts to the plaintiffs' claim, as against the claim. As appears from a letter written to the defendants' legal practitioner by the plaintiff's legal practitioner, dated February 3, 1921, it is coménd@éd that the matters in dispute over that contract were never "duly" referred to arbitration and therefore no sum can be due in respect of the alleged awards. It is also claimed that there is no right of set-off at all. On learning of the points taken by the plaintiffs, the defendants took out a summons fur a commission to England and on my suggestion this has been adjourned sine die in order that the plaintiffs might take out this motion to decide the question of the right of set-off in a mixed case in this Court. And this is clearly right procedure, for under Order 19. Rule 3, an application.to exclude a set-off or counterclaim must be made "before trial." This motion was fully argued before me on the mornings of February 21, 22 and 23 last, and I will try and
Text read from the printed page and cleaned; old type leaves the occasional error.