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Colonial Cases

Dabbs v. Bunting, 1890

[in forma pauperis]

Dabbs v. Bunting

Supreme Court for China and Japan
Rennie CJ, 26 June 1890
Source: North China Herald, 27 June, 1890

LAW REPORTS.
H.B.M.'S SUPREME COURT.
Shanghai, 26th June.
Before Sir R. T. Rennie, Chief Justice.
DABBS v. BUNTING.
  This case came before the Court under the following circumstances. The plaintiff lost the original action in the Court for Japan, and applied for leave to appeal in forma pauperis. This was refused but the Supreme Court on 22nd April reversed that decision, thereby allowing the plaintiff to appear in forma pauperis.  A motion was now made on behalf of the defendant to dispauper the plaintiff and compel him to give security for costs before proceeding with the appeal.
  Mr. H. S. Wilkinson appeared in support of the motion on behalf of the respondent, and Mr. D. P. Drummond for the plaintiff.
  Mr. Wilkinson, in support of the motion, submitted that the plaintiff's affidavit, on which he had obtained leave to sue in forma pauperis, was incorrect in stating (1) that the motion for leave to appeal was filed in the court below on December 27th, i.e., within the required time, and (2) in stating that the Court below had felt obliged, in view of Rule
155, to refuse the order asked for, whereas from the record which had since arrived from Japan it appeared that the Court saw no reason why leave to appeal should be granted. Mr. Wilkinson then proceeded to read extracts from affidavits which had since been filed for and against the present motion. The defendant in his affidavit stated that plaintiff carried on his business at No. 35, Division Street, Kobe, under the style of the British and American Tailoring Company, and which business had the appearance of being a large and flourishing one. It was managed by the plaintiff, assisted by his wife. An advertisement had appeared in a local paper stating that the work rooms were about to be increased to double their then size. In the Hiogo hong list the names of J. F. Dabbs and J. Batchelor appeared under the heading of "British and American Tailoring Company," and defendant had ascertained at the office of the publishers that these names were inserted under instructions from plaintiff. The latter had become a member of the Kobe Rowing and Athletic Club, and he and his wife entertained very freely. There were generally two or three Chinese and four or five Japanese journey-men employed, who were engaged by plaintiff. In support of this latter statement, Mr. Wilkinson read an affidavit from a Japanese, who stated that he was engaged by plaintiff, that the number of workmen employed was as stated above, that there was generally enough work for them to do, and that the business appeared to be large and increasing.   The conclusion to be drawn from these statements was, the learned counsel submitted, either that plaintiff had improperly obtained the Order of the Court or that he had been putting on an appearance of credit by which he deceived the whole world.
  Plaintiff in his affidavit in reply stated that he was employed by his wife; that the British and American Tailoring Company consisted of his wife and Mr. Batchelor, that in return for his services he received only food and clothing, and no salary; that he was possessed of no estate of his own, that he did not hire or discharge workmen, that he had never given instructions to the publishers of the hong list as to inserting the names which appeared in the list, and that the money to enable him to become a member of the Kobe Rowing and Athletic Club was provided by his wife, in the interests of the business. Commenting on these statements, the learned counsel submitted that the alleged relations between plaintiff and his wife were very improbable, and that in his reply plaintiff did not deny the statement that he and his wife entertained freely.
  Mr. Drummond, for the plaintiff, quoted the case of Perry v. Walker (6 Jurist, p. 846) to show that it must be proved that the plaintiff had sufficient business to exhibit himself to the world in a character altogether inconsistent with that of a pauper. The question really was whether the plaintiff was in a position to proceed with his case in any other way than in forma pauperis. The learned counsel proceeded to mention that he had received from his client letters stating that he had been obliged to borrow money to pay the Consular fees in respect of his affidavits, and that he had intended to send with them the agreement between his wife and Batchelor, but was unable to do so in consequence of having no more money to pay the fees.
  Mr. Wilkinson - Twenty-five cents would have enabled him to file it.
  Mr. Drummond, in conclusion, submitted that defendant' proceedings were merely vexatious and in order to prevent the action between the parties from reaching a hearing.
  The Chief Justice, in giving the judgment of the Court, said - We are both agreed that the application must be granted and that the plaintiff must be dispaupered. On the evidence we have before us now it seems to us clear that this man is no longer in a condition which justifies him in proceeding as a pauper. He seems to be carrying on trade in Kobe to an extent which puts him in a position in which he should not be allowed to proceed in forma pauperis. The motion therefore must be granted, and he must give the usual security of $250 if he wishes to proceed with his appeal. There will be no costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School