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Colonial Cases

Hill v. Yates, 1879


Hill v. Yates

United States Consular Court, Shanghai
Bailey, 5 September 1879
Source: The North China Herald, 9 September 1879



Shanghai, 5th Sept.

Before D. H. BAILEY, Esq., Consul-General, sitting as Judge.



       Mr. R. E. WAINEWRIGHT appeared for the plaintiff.

       Mr. J. J. HENDERSON, instructed by Messrs. Cowie and Myburgh, appeared for Messrs. Elizabeth Adams Hill.

       The original petition in this case was filed in March last, and is as follows:-

    1. - The plaintiff is a citizen of the United States residing at Shanghai, and the defendant is also a citizen of the United States residing at Shanghai within the jurisdiction of this Court, and is the attorney and agent in Shanghai of the above named Elizabeth Adams Hill.
    2. - The plaintiff was married to the said Elizabeth Adams Hill at Shanghai on the 10th day of September, 1862, and there is issue of the said marriage still living one child only, a boy, who was born in the month of July 1865.
    3. - In the year 1870, the said Elizabeth Adams Hill left the plaintiff who was then in China and returned to the United States, and she has ever since positively refused to return to China or to live and cohabit with the plaintiff, although he had repeatedly requested and urged her to do so, and has furnished her with ample means to join him, and moreover has on three several occasions at great expenditure of time and money visited the United States for the sole and principal purpose of inducing her to return to China and to resume her relations and duties towards him, as his wife.
    4. - From the time of her leaving China as aforesaid down to the month of February, 1878, the said Elizabeth Adams Hills, alleged as the only reason for her conduct hereinbefore mentioned, her disinclination to live away from her mother and her own family friends, and her dislike of and refusal to bear children.
    5. - In the month of February, 1878, the plaintiff visited his said wife at Bridgeport in the State of Connecticut, and strongly urged her to return with him to China, and told her (as the fact) that he had engaged the passage of themselves and their child by the steamer leaving San Francisco on the 1st of the following month of March, and also told her that if she still refused to return to China with him, he must exert his rightful authority and compel her to return.  A few days afterwards the plaintiff was served with notice that his said wife had commenced or was about to commence, proceedings against him for a divorce upon the ground of adultery, and such proceedings were commenced on or about the 12th day of February, 1878, and are now pending.
    6. - The plaintiff denied that there is any proper ground for the said suit, and on the contrary alleged that ever since his marriage he has been faithful to his said wife, and has given her no just cause of complaint against him, and he alleges that the said suit has been instituted solely for the purpose of preventing him from enforcing his legal rights over his said wife.
    7. - The plaintiff has instituted a cross-suit against his said wife for a divorce, on the ground of her conduct towards him as hereinbefore set forth.
    8. - No settlement or agreement for settlement was made or entered into prior to the marriage of the plaintiff and his said wife, but after the said marriage, namely, in or about the month of January, 1863, the plaintiff agreed to purchase and did purchase an undivided third share on the so-called French Concession at Shanghai, aforesaid, and he has since purchased a like share in certain other lands contiguous to the said first-mentioned piece of land.  Upon the said pieces of land, houses and other buildings have been erected, the cost of such erection being part in part by moneys furnished by the plaintiff and by the owners of the other two third shares in the said property, and in part by moneys derived from the rents and profits of the said property.
    9. - The said property is now bounded on the north by property of the defendant and S. Carpenter and C. Lemaire; on the south by the city moat; on the east by the property of Yang Ta-kee, registered in the French Consulate books in the name of J. J. Keswick; and on the west by the Rue du Moulin.
    10. 0.   - At the time of making the said purchases hereinbefore mentioned, the plaintiff being desirous of making provision for his said wife and for the children, if any, of the said marriage,  caused certain deeds to be prepared and executed whereby all his said one undivided third share in the several pierces of land (except in a small piece of land purchased later on and containing six fun) were conveyed and assigned to the said Elizabeth Adams Hill for her sole and separate use during her life, or in the case of the death of the plaintiff then so long as she should remain his widow, and subject thereto upon trust for the child or children if any) of the said marriage absolutely; and in the event of the death or remarriage of the said Elizabeth Adams Hill,  then upon trust for the plaintiff, his heirs and assigns for ever.
    11. 1.   - Upon applying to register the said settled shares in the said several pierces of land in the name of the defendant in trust, as aforesaid, at the Consulate-General of France, at Shanghai, it was found that according to regulations in force at the said Consulate the said shares could not be so registered, and therefore the said shares, from time to time as the said purchases (including the purchase of the said 6 fun of land) were made, were registered in the name of the said Elizabeth Adams Hill.
    12. 2.   - In the year 1874 the plaintiff purchased an undivided sixth share in all the said property, and such sixth chare was transferred in the said French Consulate Register into the name of the said Elizabeth Adams Hill, who thereupon became the registered holder of one undivided moiety of half-part of the said property.
    13. 3.   - In the month of April, 1877, the said Elizabeth Adams Hill, in pursuance of an arrangement come to between the plaintiff and herself, and in order to provide the plaintiff with funds caused to be transferred in the said Register into the name of the plaintiff an undivided fourth share in the said property, by reason whereof the said Elizabeth Adams Hill now remains the registered holder of one undivided fourth share of the said property and no more.
    14. 4.   - Ever since the purchase thereof, the said property and the collection of the rents and profits thereof, have been under the sole control and management of the defendant, and he has from time to time divided the said rent and profits among and paid over the same to the several persons (including the said Elizabeth Adams Hill) for the time being entitled thereto, in the shgreas and proportions in which they have been so entitled accortfing to their several interests as shewn by the said French Conjsukate Register.
    15. 5.   - In addition to the income which she had derived from the said property, the said Elizabeth Adams Hill had from time to time since her said marriage received from the plaintiff divers sums of money, to, in the aggregate, a large amount, and she has throughout had ample means of support both for herself and for said child, and she ought now to be, and so far as the plaintiff knows, now is in possession of money and other property to a considerable amount.
    16. 6.   - After the institution of the suit for a divorce mentioned in the 5th paragraph of this petition, the plaintiff, fearing and having reason to believe that the said Elizabeth Adams Hill was making a bad use of and was likely to make a bad use of the moneys coming to her hands from the said property, and with a view to protect the interests of the said child of the said marriage, gave notice to and requested the defendant not to pay over to the  said Elisabeth Adams Hill any portion of the moneys coming and to come to his hands derived from the said property, but to pay to him, the plaintiff, the share of such moneys which would otherwise have been payable to the said Elizabeth Addams Hill; but although the said notice and request have been several times repeated, yet the defendant has neglected and reused to pay any attention to the same.

       In reply to the above, the following answer was filed by the defendant:

    1. - That he admits the allegations contained in the first paragraph of the petition except that he says that he is not the Attorney and Agent in Shanghai of the above-named Elizabeth Adams Hill.
    2. - That he believes the allegations contained in the 2nd paragraph to be true.
    3. - That he has no personal knowledge of the matters and things alleged in the third, fourth, fifth, sixth and seventh paragraphs of the petition, except that Elizabeth Adams Hill did go Home in one thousand eight hundred and seventy, and has not since returned to China, and to the best of his knowledge and belief has refused to return.
    4. - That he admits the allegations contained in the eighth and ninth paragraphs of the partition so far as they relate to matters which occurred after the marriage of the petitioner with the said Elizabeth Adams Hill.
    5. - That the trust deeds referred to in the tenth paragraph of the petition cover thirteen mow, two fun, five li and nine haou, and were executed in one thousand eight hundred and sixty-three, and the other early in 1862, and that to the exception of six fun, two li, and seven haou should be added, as he believes, the two mow, six fan, two li and seven haou were transferred to Elizabeth Adams Hill, J. O. Pendleton and the defendant by Remi Schmidt and Company after the trust deeds were executed.  That he had no personal knowledge of these trust deeds till March, one thousand eight hundred and seventy-nine, when he accidentally found them in his possession whilst overhauling and destroying old papers.
    6. - That the property, ad purchased from time to time as stated in the eleventh paragraph, was registered in the name of J. T. Doyen, and by him, or his Attorney, the plaintiff and Remi Schmidt and company transferred in 1864 to a company of three, in equal shares, Elizabeth Adams Hill being one of the three. That he has no recollection of any application having been made to register a trust deed at the French Consulate prior to one thousand eight hundred and seventy-three, when he went with the petitioner to the French Consulate and it was found that trust could not be registered.
    7. - The he [sic] admits the allegations contained in the twelfth, thirteenth and fourteenth paragraphs of the petition.  As to the fifteenth paragraph he says that such portion of the income from the property was was not applied towards paying for it and covering it with new houses was by him remitted to the said Elizabeth Adams Hill or paid to her order, and that in addition to the rents as above, the petitioner instructed him to sell three shares in the Chinese Insurance Company and remit the proceeds to Elizabeth Adams Hill to assist in the education of his (the plaintiff's) son.  He has no personal knowledge of the other large sums mentioned in the paragraph.
    8. - As to the sixteenth paragraph he says that in one thousand eight hundred and seventy-eight, the petitioner ordered him not to remit any more money to Elizabeth Adams Hill, but to pay the rents received by him into the United States Consulate-General.  And that as he was acting for the said Elizabeth Adams Hill, under a Power of Attorney, this order embarrassed him and he consulted General Stahel, the then acting United States Consul-General, to ascertain from him what his (the defendant's) legal obligations under the circumstances were, and was advised that as the property was registered in the name of Elizabeth Adams Hill, the petitioner had no legal right to give such an order.

       That on the seventh day of October, one thousand eight hundred and  seventy-eight, to avoid further annoyance, he substituted, under the power of substitution contained in the Power of Attorney, George James Cowie to Elizabeth Adams Hill's Attorney and Agent.  That after making the substitution above-mentioned, he received a new Power of Attorney from Elizabeth Adams Hill revoking all former powers, but he refused to act under it and notified Elizabeth Adams Hill to that effect, and she sent out to him by the last mail a power of substitution, and he, by virtue of the said power of substitution, appointed Alexander Myburgh, of Shanghai, Elizabeth Adams Hill's Attorney and Agent.

       That since the seventh day of October, one thousand eight hundred and  seventy-eight, he has ceased to be Elizabeth Adams Hill's Attorney, with regard to her said property, unless the appointment by him of Alexander Myburgh can be called an act of agency, and has handed the rents of the one-fourth share of the property registered in her name to Messrs. Cowie and Myburgh as her agents.   The estate is an undivided one, and must be managed as such.  The defendant sends Elizabeth Adams Hill's share of the income to her agent, and sends the petitioner's share to his agents; he, the defendant, is not the agent of either.

    1. - And the defendant leaves it to the judgment of this Homorable Court to decide what shall hereafter be done with the income of the said undivided fourth of the said property registered in the name of the said Elizabeth Adams Hill.

       In April a temporary injunction was granted to Mr. Hill, whereby r. Yates was ordered to pay the moneys accruing from the property into the U.S. Consulate-General instead of sending them to Mrs. Hill, and it was on a motion by the defendant to set aside this injunction that the case came before the Court today.

       Mr. WAINEWRIGHT, at the outset, applied for the hearing of the motion to stand over.  He did so upon an affidavit which was made by Mr. Hill before he left Shanghai in July last, detailing the circumstances which forced him to go away, and the hearing of the motion would be very inconvenient in his absence.  And in view of certain proceedings pending in America between Mr. and Mrs. Hill for a divorce it would be very proper and just that until the issue and the result of these proceedings are known nothing should be done as regards the proceedings in this Court.  He had no evidence on the subject, but he had reason to believe that his learned friends on the other side has been in a position to make this application for a considerable time past.  He would like to know when his learned friends received the Power of Attorney from Mrs. Hill, which he presumed they had.  If they got it before Mr. Hill left Shanghai it was unreasonable for them to have wait until he went away before they took these proceedings, but they had delayed two months longer for what reason he did not know.  He thought it was better that he should now read Mr. Hill's affidavit, which had been filed, and he asked for it to be produced.

       The COURT pointed out that there was no entry of the affidavit on the docket having been filed.

       Mr. WAINEWRIGHT was perfectly satisfied the affidavit had been filed.  Mr. Hill had told him most positively that he had filed it, and if it was not with the other papers it might have been placed elsewhere by mistake.

       The COURT explained that if an affidavit had been filed it should be docketed at once.

       Dr. LATHAM produced the affidavit from among the papers, and it was read as follows:

    1. - I am informed by the Counsel employed by me to act for me in the United States in the suit for a divorce instituted against me by my wife, as mentioned in my petition in this suit, and verily believe that the Court in which the said first-mentioned suit is pending will commove its next sittings or session on the 23rd September next, and that it is essential that I should personally appear in the said Court not later than the 1st October next, and that in default of my so appearing the hearing of the first-mentioned suit will, if my said wife so desire, be proceeded with in my absence.
    2. - In consequence of the said information, and it being of the greatest importance to me to be present at the hearing of the said suit, I have arranged and intend to leave Shanghai forthwith, and to proceed to San Francisco by the steamer China, which is advertised to leave Yokohama, for San Francisco, on or about the 29th inst.
    3. - My said wife has in her hands, or under her control, nearly the whole of my personal property (other than the money in the hands of this Honourable Court) to the amount, as I verily believe, of upwards of $50,000, and by reason thereto I am almost entirely without means and have had to borrow money for the purpose of paying my travelling expenses to the United States.

       Mr. WAINEWRIGHT said he knew of his own personal knowledge that Mr. Hill did not go away at the time he named.  There was now no alteration in the state of the circumstances, which were fully set out in the petition, and showed that a divorce suit was pending - not one suit but each party was suing for a divorce.

       The COURT understood the original suit was brought by Mrs. Hill, and that them a cross bill was filed by Mr. Hill.

       Mr. WAINEWRIGHT said he believed that was so.  The suits had been pending a long time, a great deal of evidence having been taken both here and in Japan.  Now, they were ready for hearing, judging from the information contained in Mt. Hill's affidavit, and he submitted under such circumstances that this suit should stand over until the result of the divorce suit in America was known, because the Court there would deal with the property.  Further, there did not seem to be any particular occasion for the few hundred dollars collected from the property to be taken out of the hands of the Court, and if the money was taken it might so happen that before it reached America the present Mrs. Hill would be no longer the wife of Mr. Hill.

       Mr. HENDERSON said he appeared, instructed by Mr. Myburgh, on behalf of Mrs. Hill, to support the motion to dissolve the temporary injunction, and could not for the life of him discover what grounds there was for a temporary injunction to have been granted.  The plaintiff had not established that he was entitled to the property at all; there was nothing to show that he had been injured to the value of a single cash by the sum being appropriated in the way it had been going for so many years.  For a party to get a temporary injunction he maintained he maintained that it was necessary to show that they were receiving some injury which could not be prevented until a suit was tried, and plaintiff in his own petition showed that the property was the sole property of Mrs. Elizabeth Adams Hill, his wife, conveyed to her for her sole use.

       The COURT pointed out that the question of Mr. Wainewright was whether there should not be a postponement of the motion.

       Mr. HENDERSON would remind his Honour that Mr. Wainewright did not wait for the presence of Mrs. Hill, nor was she even made a party to the suit; but he had gone against a man who had been acting as her agent, although he had, as was shown by the records, renounced his authority as agent, and had appointed another person in his place.  Still the suit was brought against him and, without argument and in Chambers, this injunction was granted.

       The COURT remarked that the injunction was granted by consent.

       Mr. HENDERSON replied that it cooled hardly be called by consent.  It was granted with the consent of a man who stated that he was not Mrs. Hill's Attorney at the time, and if necessary he could produce a document to show that Dr. Yates did not consent in the usually accepted meaning of the term.

       The COURT said an affidavit of that kind would not set aside what appeared on the records.

       Mr. HENDERSON went on to point out at some length that the injunction was granted in Chambers when the defendant was not represented in any manner; that there was no suit pending to set aside the conveyance of the property to Mrs. Hill by her husband; that they were not supposed to know anything about Mr. Hill's movements; that it was shown he went away after this suit was instituted and the temporary injunction obtained, when it was his duty to have proceeded with the suit and settled the matter permanently.

       Mr.  WAINEWRIGHT again mentioned the divorce suit in America.

       The COURT asked whether it was known what relief was sought in that suit - whether there was anything besides the divorce.

       Mr.  WAINEWRIGHT could not say of his own knowledge, but Mr. Hill had told him that the property would be dealt with in the suit.

       Mr. HENDERSON said the plaintiff having taken the preliminary steps in this suit and then having gone away, it was perfectly proper and natural that the defendant should make an application to have this injunction dissolved, and plaintiff could not reasonably expect anything else.

       The COURT said the question was whether they should hear the argument, or whether the injunction should be continued until a suit which was pending in America should be determined.

       Mr. WAINEWRIGHT added that the suit was not only pending, but was very shortly to be heard.

       Mr. HENDERSON contended that there was not a single peg on which to hang an application for a continuance of the injunction.

       The COURT said certainly it was a well-decided rule that a plaintiff must prosecute his suit, and litigants were expected to take care of their own interests.  Mr. Hill's absence was his own provision; he knew that this injunction was only temporary, and a temporary injunction, of course, could be set aside at any time.  Mr. Hill had gone away leaving matters in this position, and he must certainly take his chance.

       Mr. WAINEWRIGHT was of the opinion that the strongest argument in favour of the matter standing over a little longer was the simple fact that the lady in America seemed to be entirely content, as was shown by her legal adviser and attorney in Shanghai not having troubled to take any steps before.  Now, they were in a tremendous hurry, but having allowed the matter to remain so long in abeyance surely it would be no great hardship for it to continue until the suit in America was disposed of.

       Mr. MYBURGH said he was Mrs. Hill's Attorney and he had instructed Mr. Henderson to appear for him in this matter.  Mr. Hill filed his petition and he filed the answer, and when the pleadings were competed Mr. Hill, by consent, got the temporary injunction.  He took it that it was the duty of the plaintiff to move within a reasonable time to have the injunction made permanent, which he did not do, and he was sure Dr. Yates, who consented to the temporary injunction, would never have done do if he had known that it was to have  the effect of a permanent one.  There was noting to show why the present application for it to be dissolved should not go on, but the plaintiff, by avoiding this hearing, wanted to make a temporary injunction a permanent one.  It would be beyond all precedent if a plaintiff could take advantage in that manner, and, by a side wind, get a permanent injunction when it was only a temporary one.

       Mr. HENDERSON maintained there was not one word of evidence to shoe that the question of the title to the property in the French Concession was involved in the suit now pending.  The land was her's absolutely, as the document proved, and he failed to see how it could be involved in the case at all.

       Mr. MYBURGH said Mr. Wainewright had accused him of delay.  The reason he had not taken proceedings sooner to set aside the injunction was because he had been waiting for the other side to take some action.

       The COURT remarked that it would like to postpone the case until the questions at issue between the parties in America were determined, but as this was only a temporary injunction, he explained that under the circumstances he should decide to hear the motion.

       Mr. HENDERSON then proceeded to explain that it was a motion to dissolve a temporary injunction issued by the Court on the 26th April last, restraining the Rev. Dr. Yates from paying over to Mrs. Hill certain moneys which he had collected and was collecting as rents on certain landed property belonging to her in the French Concession, and ordering Dr. Yates to pay the money into this Court.  He pointed out that this order was made at the instance of Mr. Hill against the Rev. Dr. Yates, in chambers, without argument, and the defendant applied for the injunction to be dissolved on the grounds:

    1. - That the moneys affected by this order are the sole and separate property of said Elizabeth Adams Hill, and that the petitioner had not right to interfere therewith.
    2. - That the said Elizabeth Adams Hill was not a party to the suit of the petitioner for said injunction, and was not within the jurisdiction of the Court.
    3. - That the said Matthew Tyson Yates was not authorized to appear in Court for said Elizabeth Adams Hill, and consent to the granting of said injunction.
    4. - That the subject matter of the petitioner's suit is beyond the jurisdiction of this Court.

       The facts upon which the injunction was based were disclosed in the petition and answer, a résumé of which he gave, and then went on to say that Mrs. Hill was not served with a notice of the suit and was not in the Empire of China at the time it was commenced.  Neither, he said, had the plaintiff commenced a suit to establish his right to the land on the French Concession, and had departed from the jurisdiction of this Court.  Mrs. Hill was without other income to support her than that derived from the property.

       It was said in the plaintiff's affidavit that she had about $50,000 worth of his personal property, but Mr. Wainewright had not shown that she could dispose of it to keep her alive.  It had not been said that she had a right to sell it, and in the present state of affairs it was reasonable to suppose that she would not attempt anything of the kind, and having nothing to support her but the rents from this property it was but natural for her to move for the injunction to be dissolved and for the money collected and held by the Court to be handed over to her.  The lands in question, he maintained, were the sole and separate property of Mrs. Hill, which appeared from the petition where the conveyance of them to her was admitted, and the records and certificate in the French Consulate also tended to establish this fact. 

       But a trust deed was pleaded.  Such a deed had not been delivered to the trustee, and the trust was never accepted.  However, were the trust deed the real title the money enjoined was the property of Mrs. Hill, being a settlement by Mr. Hill upon her in good faith for her provision; and the trust deed could be taken as evidence of such intention.  This was to be presumed from the transaction, and it was proved by the pleadings.  Then arose the question, could Mr. Hill now deprive his wife of what was absolutely given to her in good faith by way of provision for her fifteen years ago; and it could not be taken to be an unreasonable provision.  The value of this property was now about Tls. 12,000, and he believed its original cost was Tls. 3,000.  At the time Mr. Hill made the settlement he was in a good financial position, being at the head of the firm of Hunt and Company, and there was nothing to aid the presumption that he did anything that was not reasonable and proper.  Post-nuptial settlements upon a wife by her husband were based on a meritorious consideration, for it was the husband's duty to provide for her. (Perry on Trusts, section 164); and voluntary conveyances were perfect and effectual between the parties and could not be set aside by the grantor, if he afterwards became dissatisfied, (Storey's Equity Jurisprudence, section 371.)

       It was the plaintiff's own folly of he had done this and was now dissatisfied; he could not go behind it for his benefit, or for the benefit of his creditors, in order to deter and annoy his wife.  The property belonged absolutely to Mrs. Hill, and the fact that she had accuse her husband of adultery and refused longer to remain with him could afford no ground to take away her provision.  If such was the case, then a man could act in a manner to justify such a charge, for the very purpose of getting back what he had, in good faith, settled on his wife; it would be offering a premium on adultery.

       If the consideration, once meritorious and good - that of love and affection for his wife - had now failed; if he had ceased to love or care for her, and had justified her in accusing him of adultery, could he take back his gift?  If he should become insolvent and his creditors pursue this land or the rents and profits, could they hold it?  Assuredly not, for that would tend to defeat bone of the very objects of such a settlement.  Plaintiff had pretended at one time that he feared his wife was making bad use of the money; but there was no allegation that such was the case now, and certainly there was no proof of it. The property belonged to her, and her husband had no right, now he was dissatisfied, to interfere.  He (Mr. Henderson) then proceeded to cite authorities in support of the various points, and before he had finished, the Court was adjourned until next morning.

    6th Sept.

       The argument in this case for a dissolution of a temporary injunction restraining the Rev. Dr. Yates paying over to Mrs. E. A. Hill the rents of profits of certain property in the French Concession was resumed this morning, having been adjourned from the previous day.

       Mr. HENDERSON, on behalf of Mrs. Hill, continued his argument in support of the application that the temporary injunction should be dissolved, remarking that when the Court adjourned the previous day he was speaking on the point that Mrs. Hill had not been made a party in these proceedings and was not within the jurisdiction of the Court.  Assuming that it had been established by the facts and the law he cited the previous day, that the property in question did absolutely belong to Mrs. Hill, that her husband gave it to her in good faith as a provision for her, and that he had power to give it to her, then his next proposition was that no person could be deprived of property without due process of law, and consequently Mrs. Hill could not be depraved of her property unless she was made a party to the suit and was afforded an opportunity to be present and contest this application.

       This suit was not against Mrs. Hill but Dr. Yates, who had not a single cash of interest in the matter.  It was quite possible, of not altogether probable, that Mrs. Hill required the money now in the hands of the Court for the purpose of presenting her suit against her husband for a divorce, and he was sure the Court would not undertake to withhold from her her legitimate rights, and a continuance of this temporary injunction might have the effect of placing her in such a position that she would be unable to prosecute the suit against him for a divorced, which seemed to be the effect desired by Mt. Hill.

       The COURT said if Mrs. Hill sought support during the prosecution of her suit for divorce in the State Court of Connecticut, where the proceedings were instituted, that Court would make an order for her provision while the suit was pending.

       Mr. HENDERSON said that might be so, but still the retention of the money from Mrs. Hill would in all probability be a great hardship.  That an agent could not be a party to a suit in equity, without notice to the principal, he cited Storey's Equity Pleadings, sections 231 and 232, and went on to say that there was not one single word of evidence to show that Dr. Yates had any financial interest in this matter at all; on the contrary he was a friend of both parties and collected the rents for the convenience as as a matter of friendship.  His position really was that of a shroff, not an agent, and a suit could not be brought against an agent for the mere collection of money; it must be against the principal. But if this injunction was to be regarded in the light of an attachment it might be different, but he had never heard of an injunction being made an attachment, and he presumed that was not the intention in this case.

       The COURT explained that the injunction was granted on an amicable arrangement between the parties - Dr. Yates being apparently the friend of both Mr. and Mrs. Hill.

       Mr. HENDERSON replied that his proposition was this, that no suit could be brought against an agent for the collection of rents without notice to the principal, and in the next place Dr. Yates had no right to appear in Chambers and consent to the injunction being granted.  But no doubt he did so as a matter of friendship and with the best intentions; he was the clergyman who performed the solemn act of marriage between the parties, and no doubt Dr. Yates' intentions were the best in the world, but he had no legal standing to come to the Court and consent to the injunction being granted.  Dr. Yates had then conferred all his power and authority to Mr. Cowie, and since then he had done nothing for Mrs. Hill but to appoint a new Attorney for her under power sent out to him; therefore it had to be proved that Dr. Yates was the agent of Mrs. Hill at the time the suit was commenced, apart from the other point that the principal was the proper person to be sued.  The next objection he had to raise to a continuance of the injunction was that the land, which was the subject of this suit, was situate in the French Concession, and therefore beyond the jurisdiction of the Court, and that Mrs. Hill, the real and proper defendant, was also out of the jurisdiction of the Court, and was absent at the time the suit was commenced.  By a proclamation issued by the Chinese authorities on the 16th April, 1849, the district of Shanghai, called the French Concession, was conceded to the French, and the last clause of that proclamation stated, according to Mr. Henderson's translation, "that foreigners of other nationalities desiring to purchase or lease lands within the concession must make their application to the Consul of the nation concerned."This section of the proclamation he produced, under seal of the French Consul, and presumed that it placed the land beyond the jurisdiction of the Court. 

       He maintained that he had shown that the property belonged absolutely to Mrs. Hill, and therefore the rents and profits were her's also; he had shown that there was no provision in the laws of the united States for bringing a suit against an absent principal through an agent; he had shown that Dr. Yates was not the agent of Mrs Hill, and that he had held no power or authority from her subsequent to October, 1878, when Mr. Cowie was substituted for him, and afterwards Mr. Myburgh; he had shown that the property which was the subject matter of this suit was beyond the jurisdiction of the Court, and that the property belonged absolutely to Mrs. Hill and that Mr. Hill had not the least shadow of a right to interfere with her.

       One of the grounds, it had been said, upon which Mr. Hill had applied for the injunction was that he thought Mrs. Hill was making a bad use of the money.  Such a statement as that, if ever it was true was no longer true, and would not justify the Court in tying the money up if she wanted it for her sustenance.  He maintained that there was nothing shown to justify a continuance of the injunction, and expressed the belief that if it had not been for the unusual manner in which it was consented to by Dr. Yates it would never have been granted.

       The COURT asked if Mr. Henderson claimed that the Court must take due notice of the Chinese proclamation by which the concession of land was made to the French giving them, as it was said, sovereignty over it.  He thought it was a matter for proof.

       Mr. HENDERSON replied that in his opinion it was the duty of the Court to recognise all the local laws in force in Shanghai, and that if there was no law as to the purchase and tenour of land the Chinese law was the law to determine such issues, as he believed was decided by Chief Justice French in the Wu-shih-shan case.

       Mr. WAINEWRIGHT said, in opposing the application to dissolve the temporary injunction, he did not think it necessary to occupy the court at the great length his learned friend had found necessary to do.  He did not think it necessary to protract his remarks by replying to many of the points raised by the other side, because he could show they were totally immaterial to the issue, and his learned friend had altogether mistaken the position of the plaintiff.

       Assuming that this property on the French Concession belonged to Mrs. Hill, which he was prepared to admit for the purposes of the present argument, but for no other purpose, then Mt. Hill, as the husband of Mrs. Hill, was entitled to the rents and profits during his lifetime so long as he chose to take them. The subject matter of this injunction was not the land itself, but simply the money which came out of it in the shape of rents, and had been received as rents.  That was what they were dealing with under the injunction, the rents of the land which were the property of Mr. Hill, and Mr. Hill had simply got an order of the Court to restrain his own property being sent to his wife, and instead for it to be placed in the hands of the Court until further notice; therefore the question of the Court having no jurisdiction because the land was in what was called French soil did not touch the case at all.  Was the case to be tried in the French Court simply because the land was in the French Concession, when the parties were citizens of the United States, and over whom the French authorities had no personal jurisdiction?

       Mr. HENDERSON said he never advanced such an absurd proposition.

       Mr. WAINEWRIGHT went on to say that it was well known that the claim of the French authorities that their's was a concession, that they claimed jurisdiction over it because it was said to be French soil, had never been admitted by other nations represented here, and he did not think it had been recognised in any way; at all events it had never been recognised in legal proceedings where the parties belonged to other nations.  He took it that id his learned friend lent him money on mortgage of certain property on the French side, he would not take him to the French Court to get it back; therefore he thought they could leave this fragment of his friend's argument out of consideration altogether.

       With regard to the particular matter under discussion, this temporary injunction, they had been upbraided because they had not come to the Court and made an application to make it permanent.  The story of the case showed that they did not want a permanent injunction, their object was answered by the injunction they had, and it might so happen that a month hence the present injunction would be got rid of by an rider of the Court in Connecticut for the rents to be paid again to Mrs. Hill. Under these circumstances he should like to know how nit could be incumbent on the plaintiff to apply for the injunction to be made a permanent one?

       Mr. HENDERSON asked Mr. Wainewright if he would say what his object was?

       Mr.  WAINEWRIGHT replied that he was not concerned to tell what his object was.  He submitted that the most convenient and reasonable course was that if a person felt aggrieved by the injunction to seek relief from the Court, but not to wait for the party who obtained the injunction to move for it to be made permanent.

       He claimed that the rents from the property belonged to the plaintiff, and that he had a right to do as he liked with his own.  Plaintiff had applied for the money to be paid into Court instead of to Mrs. Hill, and that was all he wanted so long as the order continued until the suit in America was disposed of. 

       Mr. HENDERSON had also upbraided him for not having brought a suit to recover the land.  That was entirely foreign to the plaintiff's position; he did not intend to recover the land, at all events not at present; all he maintained was that the plaintiff was entitled to the rents.

       Then they were told that they should not have proceeded against Dr. Yates because he was not the agent of Mrs. Hill.  He could not conceive how a man who received money for other parties and distributed that money for them, was not an agent.  Dr. Yates styled himself the common receiver of rents and profits from the property; but he maintained that he was properly designated as the agent. 

       In support of the proposition that a husband was entitled to the income of his wife's real property, he cited Blackstone's Commentaries, 2 vol., page 432; Walker, pages 249 and 250, and Kent's Commentaries page 115.  He admitted that it was incumbent on a husband to maintain his wife, and in this case it was proved that Mrs. Hill had been supplied with more than sufficient money to support her.  At any rate it was for her to prove that she had required money for her maintenance.

       Next, he reviewed the contradictory statements of Dr. Yates as to the existence of a trust deed, and then went on to say that there was nothing to show that Mr. Hill's intention was not to appropriate the rents and profits of the land whenever he chose to do so, and that he had a perfect right to take them seemed beyond doubt.

       The proceedings, therefore, on the part of the plaintiff were perfectly regular; he only claimed that his own property should be put in a certain place for a time, and therefore he contended that the injunction should remain and the present motion be dismissed.

       Mr. HENDERSON, in reply, said he could dispose of his friend's argument in three minutes.  Of course it was the duty of Mr. Wainewright to say something, but he deemed it a work of supererogation to attempt to clear away an argument based on the absurdities of refinements of the old common law that a man and his wife were one.  In face of the many modern authorities he had cited, to refute them Mr. Wainewright had to go back to obsolete law and quote Blackstone - a book only good for boys to read to get to know what the law used to be.

       All the documents bearing on the point showed that fifteen years ago Mr. Hill, with a proper and honourable intention, gave the property to his wife as a provision for her, and there was nothing to show that she was not to have the rents and profits accruing therefrom; she had had these for fifteen years, and it was inconsistent with the principles on which the property was conveyed to her that she should now be deprived of it.

       In answer to the Court, Mr. HENDERSON said he did not wish to convey the idea that the French authorities had jurisdiction over persons of different nationalities in their Concession; his remarks applied merely to the question of purchase and tenure of land, in relation to which the French authorities had got a clause in their proclamation from the Chinese Government which he believed other nations had not got, and if this were so how could this Court enforce a decree with reference to land in their Concession.

       The COURT reserved judgment.


    Source: The North China Herald, 5 February 1880


    We have been favoured with an abstract copy of the findings by Judge Hall in the divorce suit of Elizabeth A. Hill v. Charles E. Hill, made to the Supreme Court of the United States, on the 8th December, 1878 (sic), which are as follows:-

    I find that the respondent did not commit adultery with wither of said persons not with any person since his marriage to the petitioner, and that each of the allegations of adultery in said petition is untrue.

       I find that the respondent has not been guilty of intolerable cruelty towards the petitioner, and that he has not been guilty of such misconduct as destroys the happiness of the petitioner and defeats the purposes of the marriage relation as alleged in said petition.

       I find the allegation in s aid petition that the respondent is an unfit person to have the charge and custody of said minor child to be untrue.


    Source: The North China Herald, 17 August 1880

    [Extract from North China Herald, 4 March 1880: Henderson v Everly & Ors.

    Mr. HENDERSON replied that it was a temporary injunction, and that the only consent given was that of the alleged owner's representative.  That suit was filed as long ago as April last, nearly twelve months ago, and under an interim injunction the Court had continued to collect the money accruing from the property and the sum collected now amounted to many hundreds of dollars, which the Court now held.

       The COURT explained that the money was held pending the decision of the Courts in the United States.]


    Shanghai, 12th August.

    Before O. N. DENNY, Esq., Consul-General, Acting Judicially.




   Mr. WAINEWRIGHT appeared for the plaintiff.

   Mr. HENDERSON appeared for the defendant.

   This case was before the Court on the 6th instant, when it was adjourned for the court to consider whether it would hear evidence and Mr. Wainewright's further argument in opposition to the motion.  The Court having consented to hear Mr. Wainewright, the argument was concluded today.
   Mr. WAINEWRIGHT urged that the suit was properly brought against Dr. Yates; that the property enjoined was in his hands; and that it belonged to the plain tiff.  He admitted that the title to the land was in the name of Mrs. Hill, but said the intention to make it her separate estate was wanting.  It might be that she was merely a trustee for her g=-husband.  To determine this matter fully it would be necessary to take evidence. But assuming it to be her separate estate, under section 721 of the United States Revised Statutes, which provides that the laws of the several States, except where the constitution, treaties or statutes otherwise require or provide, shall be regarded as rules of decision in trials at common law in Courts of the United States in cases where they apply, the laws of the State of Connecticut must be the rule of decisions in this case, Mrs. Hill being a resident of that State.    He here read from the laws of Connecticut to the effect that the husband has a right to the rents of the wife's realty. 

   If the laws of Connecticut did not govern the case, it must be determined by the common law, according to section 4,086 of the Revised Statutes, which provided that where the laws of the United States are not adapted to the object, or are deficient in the previsions necessary to furnish suitable remedies, the common law, the law of equity and of admiralty shall be applied.

   He next suggested that the plaintiff might be a trustee for his wife, and as such was entitled to take the rents from Dr. Yates.  After reading several sections from Perry on Trusts, he urged in conclusion that the injunction be allowed to stand.

   Mr. HENDERSON reminded the Court that the question before it did not affect the merits of the dispute between plaintiff and his wife, but was simply whether the Court would longer continue the injunction upon the plaintiff's petition as it stood.

   The injunction was a provisional remedy, invented by the Courts of equity to prevent threatened injury to the rights of a party pending final adjudication, for which suit must be commenced.  It could only be issued upon due notice to the adverse party by a Court of competent jurisdiction upon facts showing plaintiff's right and the injury threatened.

   Plaintiff's petition showed that the land had been conveyed to Mrs. Hill with the intention of making separate provision for her, and at a time when there were no children or signs of any, the son not having been born until three years afterwards.  If all his allegations on the subject were false, the fact remained that she was in possession by her tenants, had been for 18 years, and claimed the property.  No evidence could be admitted that was inconsistent with the allegations of the petition.  There was nothing to show the plaintiff's right or the threatened injury.

   This procedure had been more in the way of an attachment, but that writ was not applicable to such a case, and the attachment decree had been followed in no sense.  That was the only procedure that had been provided for suits against the property of absentees.

   As to the law of the case, he had already shown that it was the law of equity of the United States.  It related to an injunction - a remedy peculiar to Courts of equity, and it concerned the separate estates of a married woman.  There could be no such thing at common law, where the wife's legal existence was merged in that of her husband - such estates were created by Courts of equity to prevent the abuses of the common law, under which a man could take his wife's property and gamble it away, or squander it recklessly, and perchance leave his wife to drag out a miserable existence in want.  In equity a married woman was treated as an absolute femme sole with respect to her separate estate, and the rents followed the principal estate and could not be taken by the husband.

   Congress had enacted that the decisions of the United States Courts in China should be, not according to the law of the State of the defendant, but according to the common law, the law of equity or admiralty as the case might be.  Collisions should be tried by the law of Admiralty, actions for damages by the common law, and injunctions and questions concerning the separate estates of married women according to the rules of equity.  They were found in the decisions of the Supreme Court, the statutes of the United States, the rules of the Supreme Court, and the writings of jurists.

   The laws of Connecticut could not govern the case, because the parties were married at Shanghai, and the law here, whatever it was, governed their marital rights.  The husband had frisked here ever since the marriage, and his wife followed his own status in this respect.  There was  no allegation  that he ever resided in Connecticut.

   But most that his learned friend had said went to the merits of the controversy between the parties.  If the Court  came to that it would  find the only question to be "whether the Court would assist a man to take back, Indian fashion, an estate which he had settled on his wife in god faith for her separate use, because she had accused him of adultery and refused to live with him." He thought neither reason nor precedent for such a thing would be found.

   True, the wife had failed to prove the husband guilty of adultery, but this was not strange, considering it was the most difficult of all offences to prove.  But no doubt the wife believed him guilty, and this belief had the same effect on her feelings as positive knowledge.  It would have a worse effect, for the very element of doubt would add a tenfold horror to the thought.  Shakespeare, the great philosopher on then human mind, says

That cuckold lies in bliss, who certain of his fate, loves not his wronger; but Oh! what damned minutes tells he o'er who dotes, yet doubts; suspects, yet strongly loves.

   But he submitted that whatever the merits of the controversy may be, or whatever law may be the rule of decision of that controversy, there was neither reason nor authority for the existence of the injunction.

   The COURT reserved its decision.

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