Judge Lobingier gave judgement in the action at the instance of Henry Quelch against Paul S. Crawley, a case having reference to consignments of liquor to Harbin and their wie there. Mr. Rodger was for plaintiff and Mr. Faison for the defendant.
His Honour said:—This cause comes before us again on a motion to vacate the provisional judgement heretofore rendered in defendant's absence but after several contin-vances and after plaintiff's insistence upon a speedy hearing. As rendered, however, the judgement gave plaintiff until the date fixed by him (about one month and a half) after his return to China in order to "file a motion to modify the judgement. and produce evidence in support. thereof.''~He did not return, according to his affidavit, until some three and one-half months later, but he filed his motion within the time fixed' by the provision which authorizes ''a new trial where justice manifestly requires it" 5
His Honour then went into the question of whether defendant was frat this was a case of replevin he n agent of plaintiff, and holding
concluded In the original judgement plaintif was allowed an item of M.$1,811.84 for the expenses of two men sent to Harbin to receive and dispose of the goods. We considered that a proper item of recovery on the theory that plaintiff was the vendor and was chargeable with goods recovered only after the deduction of expenses. But on the theory that he is the owner, merely taking back his own goods which he had voluntarily sent to Harbin, we cannot allow that item. There is no suggestion of an arrangement by which defendant should be charged with the expense of returning unsold goods to Shanghai and we need not stop to consider the reasonableness of the item for it does not fall within the scope of damages in re-levin.
On the other hand, we are unable to allow defendant's various claims toreimbursement "for duty, freight, cartage, insurance, advertising," ete. (except so far as they might be necessary to cancel some of plaintif's claims) for the reason that defendant has filed no proper set-off or counter-claim and if he had it could not have been allowed against plaintiff who was of another nationality, except by way of reducing plaintiff's pecuniary judgement which we have decided not to render, We are satisfied that under the Pleadings and upon the evidence tow before us we are not justified in adjudicating more than plaintiff's title and right of possession to Part of the goods in controversy.
The judgement heretofore render td is modified accordingly and it is hereby considered and adjudged
Text read from the printed page and cleaned; old type leaves the occasional error.