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Colonial Cases

Bush v. Adkins, 1878


Bush v. Adkins

Supreme Court for China and Japan
French C.J., 22 July 1878
Source: The North China Herald, 27 July 1878




Shanghai, 22nd July

Before G. FRENCH, Esq., Chief Judge.


    Mr. ROBINSON appeared for the plaintiff.

    Mr. HANNEN appeared for the defendant.

   This case had been before the Court on two occasions during the last fortnight.  The plaintiff filed a petition and defendant applied by motion, under Rule 39 of the Rules of the court, for it to be dismissed on the ground that it stated several distinct causes of action by and against the same parties but not in the same right.  His Lordship dismissed the petition, and then Mr. Robinson moved for leave to appeal to her Majesty in Council.  On that application for leave to appeal His Lordship now delivered judgment.

   His Lordship said - This is an application on the part of the plaintiff under section 137 of the China and Japan Order in Council, 1865, for leave to appeal to Her Majesty in Council against an order of this Court, dated the 11th day of July, 1878, dismissing the plaintiff's petition in this suit with costs.  The order in question was made on the defendant's application under clause 2 of Rule 39 of the rules of this Court, on the ground that the petition stated several distinct causes of suit by and against the same parties but not in the same rights.

   The first paragraph of the petition stated that the defendant was a liquidator of the Newchwang Club; and that he had with his two co-liquidators deprived the plaintiff of what was sue to him as a shareholder in the funds and other property of the Club.  Other paragraphs in the petition stated distinct causes of action by the plaintiff against the defendant of the nature of defamation.  The petition prayed for an account, and for payment of what might be found due to the plaintiff in the assets of the Newchwang Club, and the plaintiff stated his damages (I presume in respect of one or more of those matters mentioned in the part of the petition subsequent to the first paragraph) at Tls. 500.

   The first paragraph of the petition appeared to me to state a cause of action against the defendant of a fiduciary character, involving a question of account.  It did not state that the defendant had received any monies of the Club to the use of the plaintiff, for which the defendant could be personally sued; but he was sued as one of a number of persons representing the Newchwang Club, to the funds of which association alone could the plaintiff look for payment of any sum which might be found to be due to him as a shareholder therein, upon its affairs being wound up.

   In the subsequent part of the petition, the defendant was sued, on the other hand, in his own right  for defamation, the damages in respect of which, if the defamation were established, would be payable by him out of his own proper monies.  It seemed to me, therefore, that the claims stated in the petition, though by and against the same parties, were not in the same rights, and I accordingly made an order dismissing the plaintiff's petition with costs.

   The plaintiff, conceiving that that order was wrong, inasmuch as in his view the action was brought against the defendant in one and the same rights, now asks for leave to appeal against it on the ground that, as he considers, he is thereby precluded from instituting fresh legal proceedings in respect of any of the matters or causes of action stated in the petition which was dismissed.  I am very clearly of opinion that such an interpretation of the rule in question is not the proper construction to be put upon it, and that it would operate most unjustly to a plaintiff.  Indeed, if the law suggested on behalf of the plaintiff be correct, the rule ought never to be acted upon, and it ought to be regarded as a dead letter; for, in every case coming within the rule, followed by an order of the Court dismissing the petition in such case, a plaintiff would be entirely barred if all remedies in respect of claims each one of which might be most righteous. 

   That I cannot hold to be the intention of the rule, and I did not so interpret it when I made the order of the 11th instant.  Indeed, in reply to the plaintiff's counsel, I distinctly stated in Court, upon the occasion of my making the order, that my view was that the plaintiff was in no way prejudiced by that order from bringing such one or more action or actions in respect of the causes of action mentioned in the petition as he might be advised to bring.

   It is true the rule says that the petition may be dismissed, an expression which would seem to have been used per incuriam, and the Court has dismissed the petition.  But the  question is whether such a dismissal is to be considered as a final decree or order or in the light of res judicata.

It certainly is not an award of redress to the plaintiff.  Then is it a  discharge to the defendant in respect of matters the subject of this suit?  I do not so consider it.

   The object of the rule was, as it seems to me, to prevent a defendant from being embarrassed by having to meet several distinct causes of action against him in different rights in one and the same suit; and while affording him that protection it could never be the intention to relieve him of any obligation that might be legally due from him.  To say that because a plaintiff had mixed up in one and the same petition two or more distinct causes of action in different rights against the same defendant, the plaintiff should, therefore - and for n o other reason whatever - be entirely excluded from all right to relief, however well founded  his claims to relief might be, seems to me to be a proposition which requires only to be stated in order that it may be repudiated.

   The order in question being then, in my opinion, not a final decree or order of  this Court, and it being in my opinion  quite competent for the plaintiff to bring such action or actions in respect of the causes of action mentioned in his petition as he may be advised to bring, notwithstanding the order of the Court dismissing the petition, I do not feel myself at liberty to give the leave asked for to appeal to her Majesty in Council from the order of this Court of the 11th July, 1878.

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