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Colonial Cases

Rozario v. Rivington and Clark, 1886

[libel]

Rozario v. Rivington and Clark

Supreme Court for China and Japan
Rennie CJ, 29 January 1886
Source: North China Herald, 3 February 1886

LAW REPORTS.
IN H.B.M.s SUPREME COURT FOR CHINA AND JAPAN.
Shanghai, 29th January, 1886.
Before Sir. Richard T. Rennie Kt., Chief Justice.
J. F. ROZARIO v. C. RIVINGTON & J. D. CLARK.
CHARGE OF LIBEL AGAINST THE "MERCURY."
  This case was set down for hearing at 10 o'clock.
  Mr. Wainewright appeared for the plaintiff and Mr. E. Robinson for the defence.
  The names of twenty British residents summoned to select a jury from were ten called over, and all answered to their names.
  Mr. Robinson applied for an adjournment of the hearing, on the ground that one of the most material witnesses for the defence, Mrs. Rozario, wife of the plaintiff, had not appeared in answer to the summons or request made to the Portuguese Consui; desiring her to appear and give evidence.  In the absence of this witness, Mr. Robinson felt that in justice to his client he could not proceed, unless the Court compelled him to.
  His Lordship asked Mr. Robinson how he knew that the witness would not be in attendance.
  Mr. Robinson said his friend (Mr. Wainewright) had informed him that Mrs. Rozario was not present and not likely to be present.
  Mr. Wainewright said this was the first he had heard of any application having been made for her attendance.
  His Lordship said unless Mr. Robinson had some stronger grounds for saying that the witness would not be in attendance he would not adjourn the case.  He could not act on the mere supposition that she would not be present.
  Mr. Robinson said the Portuguese Consul had states in reference to the application made to him that he had no power to order Mrs. De Rozario to attend; he could only request her to do so.  The only person who could order her appearance was her husband, who was of course out of the jurisdiction of this Court.
  Mr. Jones (Clerk of the Court), in answer to Mr. Wainewright, said the application had been made to the Portuguese Consul two days before.
   Mr. Robinson said he had also to ask, before the case proceeded, that his Lordship would make an order requiring the plaintiff to produce his cook and coolie, who were also in his power, and whom he (Mr. Robinson) had been unable to get at. These two had been witnesses in a previous case at the Portuguese Consulate and were material witnesses in this case, though he plaintiff's wife was the most material witness.
  His Lordship asked Mr. Wainewright what he had to say on the subject.
  Mr. Wainewright said he did not propose to help the defendant to get witnesses who were to be called for the purpose of throwing dirt at his client.
  His Lordship said it came to this: Mr. Robinson had not given him any sort of assurance that Mrs. Rozario would not appear; and his Lordship could not assume that she would not appear until she failed to appear at the proper time.  Then, if she was a material witness, and a regular application had been mad for her attendance, his Lordship might say, without pledging himself in any way, that he would be inclined to entertain very favourably an application made at the proper time for an adjournment on account of her non-appearance.  He thought therefore that as it was undesirable to detain a jury longer than was necessary, it might be more convenient to postpone the hearing of the case than to have to adjourn it in the middle of the hearing.  As he had said, he could not postpone the hearing on a mere assumption that the witness would not attend unless M. Wainewright assented to a postponement.  He therefore suggested that, in the interest of the jury, Mr. Wainewright should consent to the adjournment of the whole case.
  Mr. Wainewright said he was really unable to deal with the point properly, because he had no opportunity of considering it; and if his Lordship thought it more convenient to adjourn the whole case, he (M. Wainewright) would agree to that course.
  His Lordship said he made the suggestion in the interest of the jury.  He thought it would be inconvenient for a jury to go partially into the case and then have it adjourned.
  Mr. Robinson also thought it would be necessary for him to begin.
  Mr. Wainewright dissented, saying it would be for him to begin.
  His Lordship thought as the jurors had been summoned it would be better to select a jury now, and then adjourn.
  Mr. Wainewright thought there were two objections to that; - one of the Jurors might be unable to attend the adjourned hearing; and the five men chosen night have a good deal of conversation about the case before the hearing came on.
  His Lordship said in that case there was nothing for it but to summon a fresh jury.
  Mr. Robinson suggested that the hearing should be adjourned until such time as the witnesses he required were produced by the plaintiff.
 His Lordship said he could not make such an order as that.  The adjournment must be either sine die or till a fixed date.
  The case was finally adjourned by consent till the 12th February at 10 o'clock.

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