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Colonial Cases

Ko What Sors v. S.S. Nora, 1871


Ko What Sors v. S.S. Nora

Supreme Court of China and Japan

17 June 1871

Source: The North-China Herald, 23 June 1871




June 17th, 1871.

Before C. W. GOODWIN, Esq.

KO-WHAT-SORS v. S.S. "Norna."

   This was an application on the part of the defendants that the plaintiffs should give security for costs, and raised judicially the question whether the Supreme Court has jurisdiction to require security for costs from Chinese subjects, in suits commenced in the Supreme Court against British subjects.

   Mt. Robinson for the plan tiffs.

   Mr. Bird for the defendants.

   Mr. ROBINSON said this was an application that the plaintiffs should give security for costs, in a suit brought by certain Chinese against the British steamer Norna.

   There appeared hitherto to have been some difference both of opinion and practice on the subject, and no fixed rule on the subject had been established.  The question was whether the Court could order a Chinese plaintiff to give security.  The difficulty lay in an apparent inconsistency between the treaty and the Order in Council.  Art XVII of the treaty of Tientsin states:-

A British subject having reason to complain of a Chinese, must proceed to the consulate and state his grievance.  The Consul will enquire into the merits of the case, and do his utmost to arrange it amicably.  In like manner, if a Chinese have reason to complain of a British subject, the Consul shall no less listen to his complaint, and endeavour to arrange it in a friendly manner.  If disputes take place of such a nature that the Consul cannot arrange them amicable, then he shall request the assistance of the Chinese authorities, they they may together examine in to the merits of the case, and decide it equitable.

   Her Majesty having entered into this treaty with the Emperor of China, the question was, is it competent to her, by an order in Council, to impose restrictions upon a settlement of complaints by Chinese against Englishmen, which are at variance with the terms of the treaty?  The only way of reconciling the contradiction appeared to be to hold that a Chinaman has, under the treaty, the option of going to the Consul and getting such satisfaction as he can, or in coming to this Court.  And if he choose the latter course, it is open to the Court to say, if you want our assistance, we impose upon you these conditions. 

   Still, this was an additional restriction which might be held at variance with the agreement entered into between the Sovereigns of the two countries.  He (Mr. R.) might point out that the Order in Council set forth that it was made for the better Government of Her Majesty's subjects resorting to China.  Clause 3 provides that -

The provision of this Order relating to British subjects apply to all subjects of Her Majesty, whether by birth or by naturalization.

   The provisions of this Order relating to foreigners apply to subjects of the Emperor of China and of the Typhoon of Japan respectively, and subjects or citizens of any State other than China or Japan (not being enemies of Her Majesty.)

   So that, when the term foreigner is used, it comprehends Chinese.  Clause 117 says that when a foreigner desires to institute a suit of a civil nature against a British subject, the Supreme Court may entertain the same, and when entertained, shall hear and determine it according to the provisions of this Order and the Rules made under it. And it was for the Court to decide whether, looking to the treaty stipulation, it was entitled to impose such a restriction on a Chinese seeking to proceed against a British vessel or subject.

   Mr. BIRD said this was an application under Rile 253 of the rules of the Supreme Court of China and Japan, which provides that -

Where a plaintiff, whether suing alone or suing jointly, is out of the jurisdiction of the particular Court, or is only temporarily resident within it, he must file in that Court, at or before the commencement of proceedings, a written statement of a fit place within the jurisdiction, where notice of process may be served on him.

   He must give security for costs and fees by depositing, or by bond, in the penal sum of 500 dollars.

   The Court may at any time during the suit or proceeding, either on its own motion or on the application of any defendant, order him to give further or better security for costs and fees, and may direct proceedings to be stayed in the meanwhile.

   The Plaintiffs in this case being Chinese, were permanently out of the jurisdiction of the Court, because they were subjects of the Emperor of China.  Mr. Robinson had referred to Clause 3 of the Order in Council, which laid down that the provisions of the Order in Council relating to Foreigners should apply also to Chinese, thus expressly including Chinese under the definition of the term "foreigner."  Now Clause 4 enacts that -

All Her Majesty's jurisdiction exercisable in China or in Japan for the judicial hearing and determination of matters in difference between British subjects, or between foreigners and British subjects, - or for the repression or punishment of crimes or offences committed by British subjects, or for the maintenance of order among british subjects, - shall be exercised under and according to the provisions of this Order, and not otherwise.

   This was a Clause by which the Court, being constituted under the Order in Council, must be guided.  He would now again refer to Clause 117, which his friend had already quoted.

Where a foreigner desires to institute or take any suit of proceeding of a civil nature against a British subject., the Supreme Court or other Court, according to its jurisdiction, may entertain the same, and where any such suit or proceeding is entertained shall hear and determine it according to the provisions of this Order, and of the Rules made under it applicable in the case..

And he submitted that, when the Court does entertain such a suit, it had no option but to proceed in accordance with this rule.  Then Clause 127 provided for the framing of rules of procedure by the Judge of the Court, subject to the approval of one of H.M.'s principal Secretaries of State.  And the rules of the Court now in force purport to be framed under this clause, and to have been approved by the Secretary of State.  They must, therefore, he submitted, be taken as part and parcel of the Order in Council.  Then Rule 253 laid down that where a plaintiff was out of jurisdiction, &c., he must give security for costs and fees by deposit or by bond in the penal sum of $500.  And he contended that, reading Rule 253 by the light of Clauses 3, 4, 117 and 127 of the Order in Council, the Court could not make any exception with regard to it, and had no option but to compel him to find security for costs by staying proceedings till he had done so.

   His friend (Mr. R.) had pointed out an apparent inconsistency between the order in Council and Art. XVII of the present treaty.  But the inconsistency, (if such there were) did not materially affect the point under consideration.  It was obvious that there were two courses open to a Chinese.  He might, relying upon the treaty provisions, go to the Consul and obtain such redress as could be given him by that official, or he could come before this Court and ask for its assistance; but if he came before the Court, he could not do so on a footing different from that of any other foreigner.  By coming to this Court he rendered himself amenable to its Rules of Procedure; and under the order in Council the Court has no option but to comply with the Rules.  In regard to the amount of security, he had estimated as nearly as possible what he thought the costs would probably be in an Admiralty case, where they were usually heavier than in an ordinary civil suit, and asked that security might be taken for Tls. 1,000.

   His LORDSHIP. - What do you say about the "penal sum of $500?"

   Mr. BIRD said, in consequence of the differences of opinion which had existed upon the subject, the plaintiffs had not found security for the sum of $500 on taking proceedings in the Court, as they would doubtless otherwise have done.  But if they had, it would have been open to him to move that such sum should be increased.  His object in asking for the larger amount was to save the delay and additional expense of having to apply, hereafter, for an increase in security.  The "penal sum of $500" really meant only $250, a sum not sufficient to cover the costs in an Admiralty case.  With reference to the past practice of the Court as to the finding of security by Chinese plaintiffs, he might mention that he had searched for precedents on this point, but had not been able to find any case in which it had been judicially decided.

   His LORDSHIP. - There is a case.

   Mr. BIRD was not aware of it.  He knew the question had been frequently raised, extra-judicially; but he was not aware that it had been judicially decided.  He had himself heard Sir Edward Hornby express an extra-judicial opinion that there was no necessity to demand security.

   Mr. ROBINSON said an application for security had been refused to himself.  He (Mr. R.) had complained to the Clerk of a petition being filed without security having been taken, and Mr. Bishop had said Sir E. Hornby had ordered him to file it.

   His LORDSHIP pointed out the case to which he had referred - "Wong-king-kee v. Adamson Bell and Co.," in which Mr. Cowie the solicitor for the Plaintiffs had been ordered to give security for $1,000.

   Mr. ROBINSON remembered the case; but Sir Edmund Hornby had afterwards changed his mind.

   His LORDSHIP remembered another case, in 1869, in which he had himself ordered security to be given for $200.

   Mr. ROBINSON said the question was a perfectly plain one; but as a matter of fact, the practice and the opinion of the Court had been at variance in several cases; and it was very desirable that the question should be definitively settled.  He did not know why the doubt had arisen, unless the discrepancy between the treaty and the order in Council had been relied upon as cause

   As to the amount of security asked, in this case, he contended that it was excessive; and, looking to the case as that of a Chinese, and the inherent difficulty in such cases, he hoped the Court would not go beyond the amount provided for in the Rules.  He (Mr. R.) remembered a case (Hudson v. De Coningh) appealed from Yokohama, in which his Lordship had sat on the bench with Sir Edmund Hornby; when he (Mr. R.) had applied for security for costs, and as they were likely to be large, had asked that the amount be increased; but their Lordships had concurred in refusing to order more than the $250 to be taken; and he submitted, therefore, that this sum would be sufficient in the present case.

   Mr. BIRD said, of course the amount was in the discretion of the Court.  He only wished to guard his clients in case they succeeded, and in case $250 proved to be insufficient.  Looking to the scale of costs usually allowed in Admiralty cases, and to the large sum, Tls. 12,000, claimed in the present instance, he had named enough to obviate the necessity for increasing the additional expense of a subsequent application.

   His LORDSHIP had already considered the question very carefully, and as the learned Counsel had now exhausted the arguments on either side, it only remained for him to express his opinion.

   It was clear that some difference of opinion had prevailed upon the subject.  But though Sir Edward Hornby had latterly expressed a doubt as to the necessity for exacting security, he did not think the case had ever been decided with sufficient solemnity, to oblige him (Mr. Goodwin) to be bound by that opinion.  He thought it was competent to him to make an order that the plaintiff should give security for costs; and even independently of the order in Council he thought it was the proper thing to do in Admiralty cases where so large interests were affected.  But he thought also that the Rules of procedure allowed considerable discretion to the Court, and he was not of opinion that it was desirable to call for security for costs in every small case that might arise, in which a Chinese was concerned.  Indeed it would be absurd to do so, in practice.  A Chinaman should be allowed to sue in small cases without this restriction.  But in a large case of this kind, where important interests were involved, he saw no reason why security should not be required.

   With regard to the treaty, he agreed with Mr. Robinson that it was open to a Chinaman to go to the consul, and get what security he could.  What would be the termination, if his case could not be settled satisfactorily by such means, he could mot say - unless a reference to Peking.  But the Chinese would probably soon find out that such a procedure was not much to their advantage; and they would prefer to appeal to this Court.  He considered it better to adhere to the principle of calling upon Chinese to give reasonable security; otherwise the Court could not make an order for them to pay costs; and the door would be opened to frivolous applications.  He would therefore make an order, in the present case, that the plaintiffs find security for $500, either in deposit or bond, to the satisfaction of the Court.

   Mr. BIRD applied for the costs of the present application.  The Rules of procedure were explicit with regard to the requisition of security, and it was not the fault of his clients that they had been compelled to apply in Court for an order that security should be given.  If the question ever had been settled before, it had been settled in favour of his side; and he thought his clients were entitled to the costs.

   Mr. ROBINSON said the simple answer to Mr. Bird's argument was, that there was a question of doubt which called for decision.

   His LORDSHIP, under the circumstances, thought it better the costs should go with costs in the cause,

   Mr. ROBINSON. - Do I understand your Lordship, then, to settle definitely the principle that security shall be required for Chinese parties to suits before this Court?

   His LORDSHIP. - Yes, I shall always act in the same way.

   Mr. ROBINSON. - Before a Chinaman can bring a suit, he must leave an address where he can be served with a notice of process, and must give security?

   His LORDSHIP. - Yes, except in small cases.

   Mr. BIRD. - What would your Lordship consider a small case?

   His LORDSHIP thought it better to lay down no rule on that point.  The security required would be in proportion to the amount of the claim.

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