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Colonial Cases

Piatroff, Molchanoff and Co. v. Simpson, 1879

[civil procedure]

Piatroff, Molchanoff and Co. v. Simpson

Supreme Court for China and Japan
French C.J., 1 April 1879
Source: The North China Herald, 4 April 1879




Shanghai, 1st April.

Before G. FRENCH, Esq., Chief Justice.


   Mr. DOWDALL appeared for the plaintiffs.

   Mr. MYBURGH appeared for the defendant.

   The Court met this morning to take the evidence of witnesses de bene esse, in an action pending between Messrs. Piatroff, Molchanoff and Co., merchants at Hankow, and Mr. James Simpson, one of the partners in the firm of Messrs. S. C. Farnham and Co.

   Mr. MYBURGH, at the outset, directed his Lordship's attention to the fact that the evidence taken de bene esse in this suit yesterday was published in the Shanghai Courier this morning.  He was not aware whether it was to be the custom here to have evidence taken in that way published before the trial took place, but certainly evidence taken de bene esse at Home was supposed to be taken in Chambers and reporters not admitted, and in Shanghai he had always understood that evidence of this kind was taken in Court simply for convenience, and that it was not intended to be immediately published.  He should like information on the point.

   His LORDSHIP replied that with reference to the practice at Home, Mr. Myburgh was strictly correct - he had never known evidence taken de bene esse to be published in England.  The way, he imagined, the evidence given on the previous day came to be published, was because it was taken in Court, and the doors of the Court were open and it was competent for anyone to come in.  Strictly peaking, they were not sitting now in Chambers - not in secret - and it was possible the reporter might have been misled as to what was the usual practice here.  Of course, he did not know whether that was the case or not, but he imagined it was.

   Mr. MYBURGH thought that his Lordship would see that the publication of this evidence before the trial took place was an injustice to his client.

   His LORDSHIP said no doubt it might be so, and if Mr. Myburgh asked for the doors of the Court to be closed, and that this sitting should be considered as in Chambers, he would close the doors of the Court, and not suffer the public to be present.

   Mr. MYBURGH said he would ask the Court to do that.

   His LORDSHIP replied that he could do one of two things.  He could either sit privately in his chambers and take the evidence there in the ordinary way, or to suit his own convenience he could sit in Court and take the evidence with closed doors.  He thought that all of them, as common members of the profession, must feel that business was conducted with more regularity when the sitting was in Court than it was when the sitting was in Chambers.  There was less liability to be any irregularity in Court and so far as he was concerned he would much rather sit in Court and close the doors, if necessary, and consider the sitting to be in Chambers.

   Mr. MYBURGH observed that the publication of the evidence was objectionable in this way.  It was taken on behalf of the plaintiff, and being published separately before the trial took place, it might have some weight in the minds of some of the persons who might happen to serve as jurymen.

   His LORDSHIP replied that the matter having been brought to his notice, if an application was made for the doors of the court to be closed, or for the examination of the witnesses to be in Chambers, he would, of course, consider it.

   Mr. MYBURGH - You can transfer your Chambers to the Court?

   His LORDSHIP - Yes, and it is much more convenient for us to sit here.  The examination would be more regularly conducted, and we can sit here as if we were sitting in Chambers - that is by closing the doors of the Court.  Would this suit Mr. Dowdall?

   Mr. DOWDALL said he had nothing to say one way or the other, but from the wording of the rule under which the examination of the witnesses was being made, it was difficult to conclude whether the proceedings were public or not.  He had nothing to say, beyond calling his Lordship's attention to the Rule.  It was the 244 Rule, and was as follows:-

Where the circumstances of the case appear to the Court so to require, for reasons to be recorded in the minutes of proceedings, the Court may, in like manner, take the evidence of any witnesses at any time in the course of the proceedings, in any suit or application as preparatory to the hearing of the suit or application, and the evidence to taken may be used at the hearing of the suit or application, saving just exceptions.

   The evidence shall be taken in like manner, as nearly as may be, as evidence at the hearing of a suit, and then the note of the evidence shall be read over to the witness and tendered to him for signature; and if he refuses to sign it, the Court shall add a note of his refusal, and the evidence may be used as if he had signed it.

   His LORDSHIP - But there is no doubt, Mr. Dowdall, that if for the purposes of advancing justice, a Judge thinks fit to direct that no report of the proceedings of the Court shall appear in the newspapers, it is quite competent for the Judge to do so.  There is no doubt on that point, and it is a thing not infrequently done in England, and if a reporter choose to report in defiance of the Judge's orders, he is guilty if a contempt of Court, and he is responsible to the Court for that contempt.

   Mr. DOWDALL agreed with his Lordship, and said that he was only anxious that the proceedings should be regular and in accordance with the rule, which empowered the Court to take evidence at any time during the course of the proceedings, but such evidence was to be taken in like manner, as nearly as may be, as evidence at the hearing of a suit.

   His LORDSHIP thought he had complied with the rule in that respect.  The examination of the witnesses had been most regular, and sitting as he now was, he considered himself as much at liberty to rule on any question as to the admissibility of evidence, as if he were sitting at the trial.  But he took Mr. Dowdall's point to be, as to whether iit was not necxessary under the rule for the ecvidence to be taken in Court.

   Mr. DOWDALL had no point to urge; he simply drew his Lordship's attention to the rule.

   His LORDSHIP - Suppose I yield you that point, and say there may be a doubt in reference to it, and, as it is better to err on the right side, take the evidence in Court.  The, objection is made to the publication of that evidence before the trial takes place, and application is made to me, in the interests of justice, for the evidence not to be published, it become s a question for the court to consider whether it will make an order prohibiting publication or not.

   Mr. DOWDALL - And that gets over any difficulty in regard to the wording of the rule.

   His LORDSHIP - Precisely; and there is no doubt of the power of a Judge top order that the report of a case in Court should not be published.

   Mr. MYBURGH asked for such an order to be made, prohibiting the publication of the evidence taken de bene esse until the trial takes place.  He did so, as he had explained before, simply for the reason that if the evidence now taken was published, it might be read by persons who were summoned as jurors at the trial, and their minds would be influenced.

   His LORDSHIP - What is the order you wish me to make.

   Mr. MYBURGH - Simply that you ask the reporter to withdraw, or that he does not publish the evidence until the trial takes place.

   His LORDSHIP - And have you anything further to day, Mr. Dowdall?

   Mr. DOWDALL - No, I have nothing to say on the subject.

   His LORDSHIP - Then, I shall make an order that the evidence taken de bene esse in this case be not published before the hearing thereof.

   The examination of the witness was then proceeded with in Court.

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