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Colonial Cases

Municipal Council v. Cumine, 1876

[wharfage dues]

Municipal Council v. Cumine

Supreme Court for China and Japan
Hornby C.J., 29 February 1876
Source: The North China Herald, 2 March 1876




Shanghai, Feb. 29th.

Before Sir EDMUND HORNBY, Chief Judge.


   Mr. RENNIE appeared for the plaintiff.

   Mr. ROBINSON for the defendant.

   This was a motion on the part of the defendant, to stay any proceedings in an action brought by the Municipal Council to recover Wharfage Dues.  The defendant is sued as agent for Charles Cumine, trading at Shanghai under the style or firm of Cumine & Co., and moved that further proceedings in the above suit might be stayed, on the grounds that "the plaintiffs did not seek to fix the said A.G. T. Cumine with a personal liability; that Charles Cumine is not within the jurisdiction of the Court; and that he, the said A. G. T. Cumine, is unwilling to give the undertaking required by the 38th Rule of Procedure, passed under the China and Japan Order in Council, 1865."

   Mr. ROBINSON, in opening, said before proceedings with the motion, he would make a few remarks with a view to remove any misapprehension as to the action of the defendant in this matter.  The plaintiffs seek to make the defendant pay a tax known as Wharfage Dues, which the defendant refused to pay because he knew that other merchants did not pay them.  The plaintiffs are unwilling, or unable, to make them pay -

   Mr. RENNIE - That is not now before the Court.

   Mr. ROBINSON said he merely mentioned it, and did not intend to proceed further.  However, the defendant was perfectly willing to pay Wharfage Dues, provided others paid.  He had no desire to evade payment, and simply refused to pay, because others did not.  Therefore, if the plaintiffs could make him pay, the others could probably also be made to pay.  He (Mr. Robison) merely said that to show that the defendant had no personal feeling in the matter. Although there were other objections that might be raised, it was upon that broad principle that defendant refused to pay and sought to justify himself.  At the same time he did not wish to be the defendant to have to try the question.  The application he was going to make was based on Rule 389 of the Rules of procedure, which  said:

Where plaintiff sues any person  as agent for some other person, not seeking to fix such agent with any personal liability, the Court, on the fact coming to its knowledge, shall, if the person really sought to be fixed with liability is within the particular jurisdiction, forthwith order his name to be substituted, and stay proceedings until the order is complied with.  But if he is not within the particular jurisdiction, shall refuse to proceed further in the matter, unless and until the person sued as agent undertakes, by writing under his hand to defend the suit, and personally to satisfy any decree or order for debt or damages and costs therein.

   In the latter case the person sued as agent shall further, within such time as the Court orders and before the hearing of the suit, procure and file with the proceedings a sufficient authority from the party on whose behalf the agent is affecting to act, to substitute the name of the principal as defendant for his own, and to defend the suit, or otherwise act in it on behalf of such principal.

Now, in this case, it was admitted that A. G. T. Cumine was sued as agent for and on behalf of Charles Cumine, who was not within the jurisdiction of the Court, and that it was not sought to fix him with any personal liability.  Those facts being admitted, it appeared to him (Mr. Robinson) that under the plaint reading of that Rule, the Court should refuse to proceed further in the matter, until the requirements of the Rule had been complied with.  In his Lordship's own "Instructions  to Consuls," when speaking of that very Rule, at page 29 his Lordship said,

Great attention should be paid to Rule 38, which has reference to the Parties sued, not in the character of principals, but as Agents for principals.  It is a constant habit here for Plaintiffs to sue people as the Agents of others without seeking to entail any personal liability on the nominal Defendant.  Great confusion arises from this practice, especially when on Judgment being obtained, and execution applied for, the question arises who is responsible and what is responsible?  Had the Agent authority to appear as Agent and defend the suit?  Who are the Parties on the Record? Who is to be the Defendant in the action, if it should hereafter be necessary to put it in suit in Hongkong, India, Australia or England?  The only way of avoiding these points is to follow the Rules.

Under those circumstances, and on the grounds he had named, he asked the Court to stay further proceedings in  this case.

   Mr. RENNIE, in order to meet his friend's argument, would also refer to the "Instructions to Consuls," and invited His Lordship's attention to page 29, and also 101 and 102; which showed that the 38th Rule had been superseded by a new Regulation.

   Mr. ROBINSON  said he understood that his friend proposed to refer to some regulation, but he did not know what he was reading from.  Section 89 of the Order in Council provided what should be evidence of any regulations made by the Minister.  If that evidence were produced, he would deal with the regulation.  Section 89  said:-

For the porpoise of convicting any person committing an offence against such regulation, and for all other purposes, a printed copy of the regulation, purporting to be certified under the hand of Her Majesty's Minister in China, or under the hand and Consular seal of one of Her Majesty's Consular Officers in China, shall be conclusive evidence of the Regulation,; and no proof of the hand-writing or seal purporting to certify the same shall be required.

If his friend would produce a certified copy of the regulation, under the hand of the minister, or under Consular hand and seal, it would be satisfactory.

   His LORDSHIP - That he cannot do, for it was burnt in the fire that destroyed the Consulate.

   Mr. ROBINSON said it was stated it was burnt then; but the fire took place some time ago, and there had been plenty of time to obtain a certified copy.  Every one of the other nitrifications was signed by Sir Rutherford Alcock, but this one did not purport to be signed by him, and His Lordship could not import his personal knowledge into the matter.  To do so would be making himself a witness on his own Court; and it was not competent for a judge to state any fact of his own knowledge, except as a witness who could be cross-examined upon it.

   Mr. RENNIE said, supposing the originals had been burnt in the fire, could not fresh copies of them be obtained?  But he was in the hands of the Court.  If His Lordship ruled that he could not read the notification, he would not do so.

   His LORDSHIP - We have been guided by the Regulation hitherto.

   Mr. ROBINSON - But the objection to it has never before come into Court.

   His LORDSHIP - It never can be meant to be contended that, because the original copies have been burnt, we are not to be bound by them.

   Mr. ROBINSON said the question raised by his friend, was not before the Court at all.  If the case had arisen shortly after the fire, and before then there had been time to replace the burnt copies, his argument would have had some weight.  But he had not ever seen any confirmation of the Regulations.

   Mr. RENNIE, who had referred to the Regulations, said, it did not say "approval" shall be published, but "disapproval."  The approval was, therefore, apparently implied.

   Mr. ROBINSON considered that the meaning was that "approval" also was to be published.

   Mr. RENNIE said he was in the hands of the Court, though he considered that the intention was that the regulations should remain in force until they were publicly disapproved.

   His LORDSHIP said, speaking from his recollection, the regulations were sent home for approval; and that they were sanctioned by the Secretary of State; but there was no doubt they were burnt, together with all other correspondence.

   Mr. ROBINSON - Admitting that your Lordship knows that to be a fact, your memory can be of no service here.  You are only entitled to look at documents which are leak evidence.  The Order in Council says certain evidence is to be forthcoming, and I ask for the production of that evidence, and it is not forthcoming.

   His LORDSHIP - Then I am not to rely at all on my own knowledge of these things?

   Mr. ROBISON said Section 89 required a printed copy, purporting to be certified.  There could be no difficulty in getting a printed copy of the regulations certified by the Minister.

   Mr. RENNIE -You have only got to seal one of these printed copies, and it becomes a certified copy.  The regulation I am now proposing to put in, is one made by Her Majesty's Minister at Peking; and   what I submit to your Lordship is, that assuming this Rule is signed by Sir Thomas Wade, it is good evidence.

   His LORDSHIP said the Rules were framed by himself, and were sanctioned buy one of Her Majesty's Secretaries of State.  I know that to be so of my own knowledge.

   Mr. ROBINSON - But the person who is responsible for them, is Her Majesty's Minister here.

   His LORDSHIP - No, he is not; he only certified they are Rules of Procedure.

   Mr. ROBINSON - But, legally, you are a perfect stranger to these regulations.  They were issued by her Majesty's Minister.

   His LORDSHIP - I issued them.

   Mr. ROBINSON - Then your Lordship ought to have signed them.

   His LORDSHIP - I have no doubt I did sign them.

   Mr. ROBINSON. - But there is no evidence of it.

   Mr. RENNIE - Perhaps if your Lordship would sign them now, it would remove the objection.

   Mr. ROBISON - No, it would not; there is no authority given to the Judge to make Regulations.

   His LORDSHIP - Indeed there is; - all Rules of procedure were to be made by me.  I did make these Rules, and Rule 130 is conclusive on the point.  Your argument would fall to the ground, supposing we could produce the original document signed by me and approved by the Secretary of State.  This discussion has opened my recollection, and I remember I was anxious to have them published.  I sent them to Sir Rutherford Alcock, with a request to have them published, and also sent them home.  This nitrification was then probably issued.

   Mr. ROBINSON - Then your Lordship did not act in accordance with the Order in Council.  Your Lordship is empowered to make rules of procedure for the Court, not the Minister, and they are to become good after being approved save in cases of urgency, when with the sanction of H.M.'s Minister they may have immediate effect.  No rules made by your Lordship, and duly approved, have been officially published.

   His Lordship - Oh, yes; for years.

   MR. ROBINSON - Then an improper thing has been published.

   His LORDSHIP - They were sanctioned by the Secretary of State.

   Mr. ROBINSON - Where is the proof?  Your Lordship must be, legally, ignorant of what took place.

   Mr. RENNIE was of opinion that it was quite competent for his Lordship to take judicial cognizance of what he had done in such a matter; and he had received from the Secretary of State an official sanction of his act, which was sufficient.

   His LORDSHIP - I think I am bound to admit the notification, but I will take a note of the objection.

   Mr. RENNIE - If your Lordship were asked to do anything extra-judicial, Mr. Robinson's argument might apply; but I believe any remembrance your Lordship may have of the official recognition of the regulations by the Secretary of State, is admissible.

   Mr. ROBINSON - My objection of based on Section 85, that you have no evidence whatever of the existence of these Regulations.

   His LORDSHIP - Notwithstanding my remembrance of the fact that they were approved?

   Mr. ROBISON - Yes; because I submit your lordship should not import your persona; knowledge into the matter.

   His LORDSHIP - Very well, I will make a note of it.

   Mr. RENNIE considered that His Lordship's knowledge was judicial, being based on his duties and the Order in Council.

   His LORDSHIP - I hold that Mr. Rennie can read the notification published in my book of Instructions to Consuls, and that I can and ought to take notice judicially or otherwise of the fact that I made the Rules; that they did received the assent of the Secretary of State; and that it was published in the manner provided by Rules 128 and 129.

   Mr. ROBINSON - But the book bears neither the certificate of the Judge, nor the seal of the court.  Suitors are misled by the idea that the regulations are made by Her Majesty's Minister.

   Mr. RENNIE s said it was difficult to see where suitors had been misled by them.  His simple argument, then, was, that the defendant in the suit was certainly within the meaning of Regulation 3, and that his description in the petition was perfectly correct.  There could therefore be no possible ground for his friend's objection; and he (Mr. Rennie) would only say further that this was a case in which the defendant took every advantage of technical objections.  His object in defending the suit had been stated to be to prevent an unfair advantage being taken of him, and that it the effect of the suit was to compel him to pay Wharfage Dues, the others who refused to pay, would be compelled to pay also.  He (Mr. Rennie) must say that if those were the objects, it would have been better if he had not taken any technical objections.

   If such a case as this had arisen in England, it would have come under Order 9, Section 6, of the New Judicature Act, just come in force, and which provided for co partnerships being sued in their firm name, and service being effected on the managing man of the firm at their ordinary place of business.  Had it been the suit of Cumine & Co., nothing would have been easier than to sue the partner here by his agent under the rules of the Judicature Act.  He thought he need not say anything further, except that he considered his friend's objections were frivolous and trivial, and that the motion ought to be dismissed.

   Mr. Robinson said, from listening to the extract reading by his friend, he should say that it referred to cases of partnership.  In the present case, there was no partnership, and therefore it did not apply at all.  Mr. Robinson went on to say that he understood his friend asked for the motion to be dismissed under regulation 3, page 102, quoted in the Chief Judge's "Instructions to Consuls."  There were various objections to that.  The regulation, buy nits terms and in its terms, did not in the least apply to the case.  Three Regulations had been issued; one for the registration of mortgages; another for the registration of bills of sale; and the third for the registration of companies.  When they came to read the third regulation itself, they would see that it referred to and was designed as affecting co-partnerships, the members of which were unknown, or whose business was carried on by agents.

   It was known to plaintiffs before they instituted this suit, that Mr. Charles Cumine was the only member of Cumine & Co.  After reading the Regulation, Mr. Robinson went on to day that it was never intended to apply to such a case as the present; it never contemplated such a case, therefore it could be no authority.  Then the regulation spoke of a business being carried on by agents.  That would do in the case of companies, but in the present case there was no company; a man who carried on his own business with the assistance of clerks, could not be said when he was temporarily absent from Shanghai, his clerks carrying on his business, to be carrying it on by agents.

   His LORDSHIP - But suppose they sign the firm?

   Mr. ROBINSON said it would not apply, Mr. Cumine carried on his own business, in his own name.

   His LORDSHIP - Is it mentioned in the petition that he carried on his own business?

   Mr. ROBINSON said it was mentioned in an affidavit, which he had given notice to read; therefore it was in evidence before the Court at the time when the cause of action was said to have arisen.  Having explained to what the Regulation did not apply, he would now proceed to what it did apply.  It applied to those irregular and unincorporated partnerships called Companies, having recognised agents In China.  These were the kind of cases to which it was intended to apply, and it was never intended to apply in a case like the present.  If the court should be against him on these points, then, he said, the Peking Regulations were simply invalid.  His Lordship had said that they had been made by himself, but he had only power to make Rules for the Court.  These regulations purported to be issued by H.M.'s Minister.  No Rules made by His Lordship had ever been notified or published.  He understood His Lordship to be really with him on this point that H.B.M.s Minister has not power to alter any Rules of Procedure.

   His LORDSHIP - I do not think he has.  He had power to make regulations, but not Rules for the Supreme Court.

   Mr. ROBINSON - The he cannot alter any Rules of the Supreme Court.

   His LORDSHIP - I do not think he can.  That is the opinion I have always entertained.

   Mr. ROBINSON said then Rule 38 was clear.  There was no Rule made by the judge of the Court, altering that Rule; and no regulation made by the Minster could affect it.  He therefore submitted that Rule 38 must be held to exist, and that the court should proceed no further in the case.

   Mr. RENNIE objected to the way in which his friend had opened the case.  He had said northing about the Peking Regulations, but had based his case on the 38th Rule; admitting afterwards that he knew of the Regulations, and had always argued that they were not worth the paper they are written on.  After hearing what he had to say on the case, his friend then started an entirely new line of argument.

   His LORDSHIP s aid he failed to see that.  Mr. Robison had started upon Rule 38, and confined himself to it, and merely answered what Mr. Rennie had advanced.

   Mr. RENNIE was proceeding with his remarks, when

   Mr. ROBINSON objected to any further argument, the case being closed.

   His LORDSHIP reserved his decision, saying he would consider the points and objections raised, and also the question of costs.


Source: The North China Herald, 9 March 1876



Shanghai, March 2nd.

Before Sir EDMUND HORNBY, Chief Judsge.


   Mr. RENNIE appeared for ther plaintiff.

   Mr. ROBINSON for the defendant.

   Yesterday, in this case, His LORDSHIP gave the following


 This is an application, under the 38th Rule of Procedure, that further proceedings be stayed on the ground that the plaintiffs do not see to fix A. G. Cumine with any personal liability; that C. Cumine is not within the jurisdiction if the Court, and that the defendant is unwilling to give the undertaking required by the 38th Rule.

   Now this Rule was evidently framed with a very different object to that which it is now sought to be applied, for if effect were given to it in the sense in which Mr. Robinson asks, it would clearly operate to prevent agents ever being called upon to defend suits against their absent principals; for the agent would naturally decline to give the undertaking personally to satisfy any decree or order that the Court might make, and the principal would withhold any authority, and the result would be that the property of a man resding in England or elsewhere, and having an agent out here signing the firm and carrying on its business, could seldom, if ever, be made responsible in respect of the obligations or liabilities incurred by such agent in respect of such business.

   This, I say, was not the object of the Rule.  It was meant in the interest of principals to protect them from collusive actions so common on the Levant in which their agents appeared to defend suits commenced against their principals for the simple purpose of defrauding the absent principal under colour of a legal process.  To prevent this, an agent professing to act as such, and appearing in a suit commenced with the view of making the property of an absent principal liable for some demand, was compelled personally to undertake to satisfy the decree - his doing so being  to some extent a guarantee of his bona fides.  I am not  saying that this was or is the best way by which to effect the object in view, but it was a way, and it answered in Turkey and put an end to fraudulent defences.

    When I came out to China in 1865, I was immediately struck with the practice which I found to exist in trade here, of men not being partners doing what is called "designing the firm," and the difficulty of making the "signatories," or the property of which they were the guardians, liable for obligations incurred by them on behalf of the firm, when the agency, its scope and limit, might be difficult to prove.  Three rules had been framed by me, and sent home.  Two of them were approved - the 3rd, with reference to the regulation of Companies, was rejected.  I was at Peking at the time the approval arrived there, and as I found the Minister was going to make public the assent of the Secretary of State, I drew a rule - which now appears as Regulation No. 3 - to meet the difficulty I felt, and I no doubt applied to the Minister to sanction it under section 127 of the Order in Council, forgetting, however, to declare in  the Rule itself that it was a case of urgency.  I probably had not the Order in Council with me at the time, and overlooked the provision.  I am borne out in  my recollection of these facts by a despatch written by myself and dated Peking, July 1866, in which I request Sir Rutherford Alcock, when he gives publicity to the rules with reference to Mortgages and bills of  sale, to approve of a Rule with reference to "Companies and Partnerships" being sued and suing; stating that if he will approve this, it will meet some of the objects I had in view in  framing the disapproved section for the registration of Companies, &c., &c.  This Sir Rutherford did,  directing Mr. Wade, the Secretary of legation at that time acting in Peking, to make the necessary publication. I need hardly remark that what a Secretary of Legation does by order of the Minister is in fact the act of the Minister.

   No doubt this action explains why the two Regulations 1 and 2 appear top be done under Sec. 85 of the Order in Council, and the 3rd  does not appear to be do done, because the notification merely announces to the public the assent of the secretary of State to the two Regulations - which it was equally competent for the Minister or myself to do, whether the publication had reference to a Rule of Procedure or a Regulation  - and it goes on to certify, although it gives a wrong title to it, that the Rule as regards Companies will equally with the others take effect until the further pleasure if H.M.'s Government be made known; and as a matter of fact I find that the two regulations and the Rule were advertised in the North China Herald  (which is the official organ for all documents emanating from the Legation or Court) under date 28th of July, 1866, - and I may add that they were exhibited in the Court Room of the old Consulate.

   But Mr. Robinson argues that I have no business to import my own knowledge into the case, and thus give  Rule an existence to which it is not entitled.  He says,

 1st, that the three Rules were not made by me, but were Regulations made by the Minister. 

2nd. That they were not published by the Minister, but by the Secretary of legation.

3rd. That the Minister cannot make Rules of Procedure as I am the only authority that can, and that I never did publish it, and in regard to it never complied with the sections 127, 128, 129 and 130.

   To this I answer:

1st. That two of the Rules or Regulations  were not made by the Minister, but only published by him under orders from the Secretary of State, and that he did not make, but only approved of, the 3rd Rule until it was disapproved, which it never has been

   I agree with him that the Minister cannot make Rules of Procedure, his power being taken away by Sec. 130 of the Order in Council; but the Minister nowhere says he made it; all he does say is that it is to take effect until, &c., &c., thereby clearly implying his approval under the Sec. 128.

   I hold also  that a publication made by the Secretary of Legation under the direct order of the Minister is in effect a publication by the Minister, and further that the publication in the official organ of the Legation is a sufficient publication.  I admit that I neglected to state in the Rule itself that it was of urgency; but I hold that this defect is cured by the approval of the Minister and by the publication of it - as also by its being exhibited in the Court.  It seems to me that I am bound to take judicial notice of these facts, which are within my own knowledge and to all of which I was a party.  Nor can anyone be damnified by my so doing.

   The I come to the question whether the Rule meets the present case.  I think it  does, not only in its intention but in its language.  First of all, it was intended to meet the case of an individual being absent, carrying on business in Shanghai, assuming the style of a co-partnership, by an agent; and it declares, in order to pfrevent any failute of justice in such cases, that he may be sued in the name of such agent for and on behalf of such co-partnership, including the case of an individual assuming the style of a co-partnership, and it shall be sufficient to mention the name of such agent on behalf of such co-partnership.   Of course this throws the onus of proving at the trial, the agency of the individual mentioned as the nominal defendant.  If this fails, the plaintiffs lose the case.  If it succeeds, then the judgment they may obtain will affect the property of the absent individual as if he had in fact been the defendant in the action. 

   Now what are the facts in this case?  It appears that C. Cumine trades here under the assumed style of a co-partnership; that he is absent from Shanghai; and that, so far at least as is known, A. G. Cumine carried on his business for him.  The latter is sued as  such agent on  behalf of such individual; and it is not sought to make him personally liable; and this disctinctly appears on the face of the proceedings.  Under these circumstances, I am bound to hold - first, the notified Rule exists, and over-rides the 38th Rule; and that the present case falls within it.

   I have no objection to make the costs of this application costs in the cause; although io do so not on the ground mentioned by Mr. Robinson, but because there appears to have been some doubt about the existence of what is called this Peking Rule.  Such costs, however - whatever direction I may subsequently give to the taxing master, as to the taxation of the costs in the cause - are not to exceed $25.


Source: The North China Herald, 30 March 1876


Shanghai, March 27th.


   Mr. DRUMMOND appeared for the plaintiff.

   Mr. ROBINSON for the defendant.

   This was a summons for the defendant to show cause why he should not within three days answer on oath, stating what documents he has in his possession, or power relating to the matters in dispute, mentioned in the 4th paragraph of the petition, and in the second and fifth paragraphs of the answers in this cause, or what he knows as to the custody they, or any of them are in, and whether he objects (and if so on what grounds), to the production of such as are in his possession or power.

   Mr. DRUMMOND was about to pen the case when

   Mr. RONBINSON pointed out that there was an error in the summons.  His summons stated that it was the fourth paragraph of the petition, and not the third.

   Mr. DRUMMOND admitted the error, and appllied for the summons to be amended, remarking that his application would refer, not to the fourth paragraph in the petition but to the second and fifth paragraphs of the answer.

   Mr. ROBIONSON - What is it you refer to?

   Mr.  DRUMMOND - The second and fifth paragraphs of the answer, in which it is denied that he is the agent, and that he employed Messrs. J. Maitland & Co., to pass the goods.  It is purely a clerical error.  All I want is the word "third" substituted for the word "fourth."

   His LORDHSIP - there are only two matters in  dispute, first the agency, and secondly the employment of Messrs. J. Maitland & Co.

   Mr.  ROBINSON - Your Lordship does not yet know that there is anything in dispute, and you cannot know whether there is anything in dispute before the case comes on for trial.

   His LOIRDHSIP - It is plain to me on the face of the pleadings, that there are at least three things in dispute.

   Mr. ROBINSON - I am scarcely prepared for this alteration, but let me know again what you want to have in the affidavit, relating to these goods.

   Mr. DRUMMIOND - I want an affidavit of all books and documents relating to these two points, the agency, and the employment of Messrs. J. Maitland & Co.

   Mr. ROBINSON consented to the alteration in the summons being made, and the word "third" was accordingly substituted for the word "fourth."

   <r. DRUMMOND - As your Lordship sees, the only two points in the petition and the answer, which are absolutely at issue between the parties, are those mentioned in the second and fifth paragraphs of the answer, and whether there are others in issue, or not, it does not now signify; it is only in regard to those two, that discovery is now asked for from the defendant.  With regard to the practice, in the first instance, I, of course, and bound to refer to the rukes of the Supreme Court here.  The rules here, provide little of no  machinery for discovery and inspection of documents, and the practice of the Supreme Court rules is only with regard to interrogatories, which is provided for in some particular cases but it does not touch this; and discovery is one of the things which is provided for in the rule 339, a rule which says that in all such matters where the procedure is not provided for especially in the rules of the Supreme Court, the proceedings of the high Courts of England are to be as far as possible allowed.  If that be correct, as I think it is, it leaves the whole practice to be provided by English procedure. 

   This is an ordinary suit, and in all ordinary matters where there are no rules applicable, we must fall back on the practice of the English Courts; and the practice in those Courts is under the Judicature  Act.  The section which directly applies, is Order 31, Rule 2, of the Judicature Act of 1875. There are several other rules before that one, which refer to the question of interrogatory, but I  need not refer to them now.  I will read first the 11th Rule, which is not the one on which I directly rely, but it refers to the same matter.

   Mr. ROBINSON - Do I understand you to rely on Rule 11?

   Mr. DRUMMOND - No, primarily I rely on Rule No. 12.  He then read Rule 11, together with an appended note, which he thought would be of great use to the Court; and proceeding he read rule 12 and the note following it.  Rule 12 was the one under which the application was made, and he went on to explain that Rule 13 defined what the affidavit was to be; and at page 330, Appendix B, form 9, there was a complete form, in answer to orders of the Court.  He then read a sketch from page 25 of what discovery was, and referred to the form in Chitty, 10th edition, page 162. He did not think there was a similar form in the Judicature Act, the only form he had noticed in it being an affidavit in reply.  He thought there was no difference now between common law and equity, but he took the common law forms as mire fitted for his case.

   The words in the summons which had been added to the common form were those words which pointed out upon what points the discovery was required.  Discovery did not take the place of pleading, nor was it intended for the purpose of obtaining documents, or other information upon  which a fresh issue might be raised; it simply supplied a link of evidence to prove a claim.  There were two causes of issue, and the present application was to get documents to enable them to prove the action which was pending.  He thought it was now quite clear on what points discovery was  wanted.  In the form in Chitty there is no reference to any issue.  It covers all grounds of issue, and a defendant might be put to the trouble of answering a great many things on which evidence was not  wanted.  In this instances, we have limited ourselves to the two points at issue between the parties, and therefore we are more within, than without the authority.

  He then cited various cases describing as the most imprtant one that of Hunt v. Hewii, reported in the Law Journal, page 211.

   Mr. ROBINSON was of the opinion that all the cases referred to inspection and not to the present application.

   Mr. DRUMMOND. - It is all the same.  We can get discovery first and then go for inspection.  He said there were other cases on the point, and referred to Kerr on discovery, and read judgments granting similar applications.

   Mr. ROBINSON dissented entirely from the view taken by his learned friend.  He could only see one issue between the parties, and that was whether the plaintiffs could receive certain dues; everything else was a mere matter of evidence, and the point as to whether the plaintiffs were entitled to dues was the only issue between the parties.  His friend at some length had read some extracts from a book on rule eleven.  It did not apply to the case at all, it only referred to cases where documents were admitted to be in the possession of the parties.  Here, it was not known that the defendant had any documents, and therefore everything his learned friend had said bearing upon inspection did not refer to this application at all.

   Supposing the application were granted, then it would be the duty of the defendant to make an affidavit, and by that affidavit protect himself against producing any document which he objected to produce, and upon that it would necessary to make an order to inspect.  Until they arrived at that stage of the case, the case of Hunt v. Hewitt, which has been cited by his learned friend, did not bear upon the matter, and it would be one of the principal cases on which he (Mr. Robinson) would rely for refusing the inspection.  Other cases had been cited, but he did not propose to refer to them at this stage. 

   Rule 339 was the only point his friend had attempted to make material in the case, and he had argued that his lordship had power under that rule to make the order asked for.  The wording of this rule was, that in all such cases not in the rules expressly provided for, the procedure of the superior courts shall as far as possible be followed.  His answer to this rule was, that the thing was specially provided for by the order of the Court, and therefore he had not go to look for it outside.  He confessed that he looked upon the application as a most surprising attempt on the part of his learned friend to disregard the rules of the order.  As he understood it, the rules were not only signed, but were prepared by his Lordship and approved by the Secretary of State, and only the rules made in pursuance of that order could have effect; and moreover the order expressly stated that his Lordship should administer in the jurisdiction of Her Majesty under those rules and not otherwise.  His Lordship was not empowered to make any addition to the rules of the Court, except under particular circumstances.  It was not intended that he should note any addition to the rules of the Court without approval, and he submitted that his Lordship had no power to do so.  When the rules of the Court were framed, discovery was as well known to English lawyers as it was now, and therefore, if discovery were intended, it is only reasonable to infer, it would have been included in the rules. He held that His Lordship was bound by the rules of the court, and could not go outside of them, for if it were intended to give the power of discovery, it was only reasonable to suppose that some provision to that effect would have been introduced into the order. His Lordship was confined to the rules framed in pursuance of the order made in Council, and he contended that he could not go beyond those rules.

   He supposed there were few more difficult cases than those relating to discovery.  Then, again, he would call attention to the peculiar facts of the case.  No such case could possibly have occurred in England.  The discovery in England is an affidavit by the defendant.  There was another way to look at the case.  He thought that the summons ought to be dismissed on the grounds of substantial justice, for the application was obviously one for the purpose of fishing.  The action was brought to receive certain dues which the plaintiffs said they were entitled to enforce.  If they had a right to enforce the dues, it would depend upon their own title; it could not depend on any documents in the possession of anyone else.  They had only to prove their right to collect the dues, and he failed to see how any documents in the possession of the defendants could assist them in the least. He cited three cases of the judges' Chambers reports from the Law Times, numbers 61, 199, and 260, and submitted that not only on strong technical grounds, but also on the real merits of the case, there was nothing upon which the application could be granted.

   Mr. DRUMMOND - It is not my intention to say much in reply to what Mr. Drummond has said.  I think the 5th section answers any objection as to your Lordship's power.  It expressly says that not only the principles of common law and equity, but it also says that the practice of the Courts in England shall be adopted when necessary.  I take it that so far as the rules of this court are concerned, we can fall back on the practice in England.  What I have said, I think is a sufficient answer to the objection raised by my friend.  With regard to the necessity for the information asked for by the discovery, I think it of the greatest importance if we can get it.  I do not think there is anything very peculiar in this case.  There may be a little peculiarity in it, but I take it that discovery against Charles Comine will be sufficient as against A. Comine.  It has been said that the only point as issue is, can the plaintiffs recover dues?  That is not the point at present; it may be the final point, but we have not come to it yet.  There are not two points at issue, and they are what I have previously stated.

   Mr. ROBINSON - There is nothing to show that the documents would be of any use to the plaintiffs in their case.

   Mr. DRUMMOND - It is sufficient to know that we want the documents, and if the application is granted, I think it will lead to the production of documents which will prove what he denied in the two answers.  As to the cases which Mr. Robinson had cited, there is nothing new in any of them.

   His LORDSHIP - said I will first answer the objection that this court ought not to refer to the rules and practice which prevail in England, because its own rules are supposed to embody all that are necessary for the guidance of this country, and that it must not look anywhere else for anything which is not to be found in its rules.  I am distinctly of opinion that under the 5th section of the Order in Council we can go beyond the rules of this Court, and moreover I have always interpreted the order to mean, that all our Jurisdiction is to be exercised in conformity with the procedure prevailing in  England, except where our own rules provide otherwise.    I have also considered that where these rules are silent upon any point of practice, we must resort to other rules, and the Common Law Procedure Act having been replaced by the Judicature Act, I imagine we must now apply to it. 

   Then comes the question, whether these rules of the Supreme Court do not in effect specially provide for this case. While there is no special provision except the one referred to, namely the 50th, which has simple reference to where a specific answer has been put in.  In this case there has been no specific answer applied for, and none put in, and therefore of the plaintiffs had applied under the 50th section the answer would have been that the section only applied to specific answers.  So this application does not come within the rules of the Court, but recourse must be had to the Judicature Act.  We, then comes the question: so this application was unnecessary? Or is it merely as fishing application.  I am not disposed to think so, and for this reason.  The suit is to ascertain whether the goods shipped  and passed through the Custom House are liable to sue; and in order to ascertain that, there are two previous issues to be decided in the affirmative, for if either of them are decided in the negative, most unquestionably the plaintiffs cannot succeed in this action.  No doubt the final and substantial issue is as to whether the plaintiffs are entitled to certain dues, and to prove this it is necessary to prove that A. Cumine is the agent of C. Cumine, and that he employed Messrs. J. Maitland & Co. to pass the goods;  and if the plaintiffs can prove those two issues I assume that, in the capacity of agent for Cumine and Company, he would be liable in  this action. 

   There are three distinct issues as the case stands at present; first the agency of the nominal defendant, secondly the employment of Maitland; and then, if these are proved in the affirmative, comes the third, namely, whether under the regulations the defendant will be liable to pay the dues; therefore I cannot see that any attempts to elicit facts with reference to those issues are unimportant.  It may be said that supposing the documents were known, an ordinary notice would be sufficient, but you cannot give a general order to produce, without naming the documents you require; and therefore a general notice to produce in this cause would have been useless, because the plaintiffs have no knowledge of the exact documents the defendant may have in his possession.  As it is, I imagine this application becomes necessary because the plaintiffs want to get a knowledge of documents in existence, and therefore they adopt this means of applying by discovery.

   Then with reference to the argument that anything on the face of these documents will not be material in the course of further proceedings, I dispose of that by intimating a very strong opinion that if the plaintiffs fail in making out the agency which is denied in the answer, and fail also to prove the employment of Messrs. J. Maitland & Co. to pass the goods through the Custom House, they must fail in their action altogether.  Therefore the documents may be most material.  For supposing that the result of this application  is an affidavit in which Mr. Cumine states, ¬£Yes I have in my possession the power of attorney, which directs me to carry on the firm of Cumine & Co., and gives me power to enter into contracts, &c., &c., &c.," it would be a very material fact, and no doubt save a great deal of further expense and trouble. 

   The last argument I heard was that discovery was not needed.  I think discovery is wanted to prove this agency, and the employment of Messrs. J. Maitland & Co., and therefore I shall grant the application.

   The proceedings then terminated.

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