Shanghai, May 6, In overruling a motion "made the Home Insurance Company that the US. Court for China require Mr, Yao Teh-fu, doing business as the Hwa Tung Electeieat & General Engineering Works, to ive security in the amount of G$1,500° for all costs and charges which may be adjudged against him on the final Aisposition of the case, Judge M. J. Helmick issued a memorandum yesterday in which he stated that the court was fully aware of the defend= ant's dilemma, However, the court knows of no remedy it can afford, as it knows of hho rule in the United States whereby an appellee can be required to give security for appellate costs 8 a condition to answering an appeal, and even in the United States appellant prosecuting an appeal against, a judgment-proof appellee would have no remedy for the colleen tion of his costs in case of success on the appeal. afore Mr, 1. T. Morris, Actiny Registrar Memoranduin Shanghai, May 7. plea of mot nity to alt Tndian Gobindram—Assudumal appeared before Mr, 1.
Acting Registrar, in "HM, Police Court yesterday morning (0 answer his employers" allegations that had embezzled various sums of money belonging to the firm, including: one amount of ¥.5.000.
This matter arises on defendant's motion under Rule J of the Rules of Procedure of this Court to require plainti® to give security in the amount of US$1,50000 "for all costs and charges that may be adjudged against him on the final disposition Of this cause." Rule It reads as follows:
"Where a person not subject to the jurisdiction of the Court desire to take in the Court an action were against an American citizen, the Ratan- Court may require such security for i, who is in charge of the] costs as it thinks Int inthe same Shanghat chico at 106 Peking and juanner as would be required. of of Messrs, Utoomal & Assudamal Ca. of Hongkong. On the first count de-fondant was alleged to have em= bezzled the sum of $80.0 on Febru ary 24, this amount, it was. stated, having' been paid tohim by Messrs. Burkill & Sons on behalf of his rin.
On January 20 he was alleged to have embezzled a further sum of S080, "this money having beer received from various debtors, and fon divers dates between August 15, 1938 and March 18, 1939 he was stated to have embezzled a sum of Y¥.5,000 which, it was alleged, he had received from certain debtors and exchange dealers 'Questioned by Mr. K. B, Newman, for the prosecution, 'Mr. P, Vaswani, manager' of the firn in Hongkong, slated that defendant was sent from Hongkong to Shanghai about August 15 of last year, Mis salary wax 60 Fupees a month plus board and lodg~ ing and he was the only Indian employee of the firm in Shanghai, bein sole charge of the office, Defendant, he stated, had an office at 09 Foochow Road and was single hho came out, although he Thad got married" As a result civing " report from Mr. Malkan! who had been sent from the Japan office to Shanghai, witness came from Hongkong, arriving on March 12. He examined the books and found a Tot of irregularities, From January 1 to March 22 de-fondant, witness went on, only drew '$40 in cash according to the accounts find, after dismissing him on March 15, witness spoke to him about a rent rebate from Messrs, Burkill & Sons. After being question defendant 9 then produced the money from his pocket and handed it to witness.
On another occasion witness inspected the cash book which showed that the closing cash on January 27 was $627.99, a balance being brouysht forward on January 28 of $627.99 which showed a difference of $680 from what the figures should have non-residents according to the District of Columbia.'
In arguing the motion defendant's counsel frankly concedes he is not concerned over the costs accruing in the trial of the case in this Court, bhut justifies the amount of USS 500.00 meet the contingency of a decision in favour of plaintiff, an appeal by defendant, the reversal of this Court's eeision sind the consequent taxation of appellate costs against. the. plain-itt. 'The defendant "points out' that an American appellant against a non-'Ainetiean appellee in this jurisdiction at u great disadvantage, because if the American wins his" appeal the costs on appeal will be taxed matter of routine by the upper Court against the appellee, but neither the appellate Court nor this Court jurisdiction to enforce colleeti fugainst the non-American. Defendant cites a similar ease (.e., one between fan American appellant and non-American appellee) now pending on peal from this Court, where both this Court and the Ninth" Circuit, Court of Appeals have denied motions filed after the appeal was taken, to require the non-American appellee to give security for appellate costs before he should be allowed to answer the appeal. Consequently, defendant argues that if American defendants are to be protected, motion for all possible costs must be made ming by inv "construing it of no remedy "it can afford. The Court knows of no rule in the United States whereby an appellee can be required fo give security for appellate costs as a condition to answering an appeal, and even in the United States fan appellant proseeut against a Judgment-proof appellee
Text read from the printed page and cleaned; old type leaves the occasional error.