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Colonial Cases

American Trading Co. Ltd v. Bank of China, Japan and the Straits Ltd, 1892

[appeals]

American Trading Co. Ltd v. Bank of China, Japan and the Straits Ltd


Supreme Court for China and Japan
Hannen CJ, 19 July 1892
Source: North China Herald, 22 July, 1892

LAW REPORTS.
H.B.M.'S SUPREME COURT.
Shanghai, 19th July.
Before Chief Justice Hannen.
THE AMERICAN TRADING CO., LTD. v. THE BANK OF CHINA, JAPAN AND THE STRAITS, LTD.
  This was a motion by the defendants in the above action, for the suspension of judgment pending appeal to the Privy Council.
  Mr. H. P, Wilkinson appeared for the plaintiffs, and Mr. C. Dowdall for the defendants.
  Mr. Dowdall applied that the judgment delivered by his Lordship should be suspended, upon the defendants giving security for the amount of the judgment, and $2,500 to cover the costs of appeal. The defendants were prepared to deposit the sum represented in the Hongkong and Shanghai Bank.
  Mr. Wilkinson said it appeared to him that the first question would be whether leave to appeal should be given. The practice at home was for leave to appeal to be first sought.
  His Lordship said he could not alter the practice of that Court, which had prevailed for twenty-five years. It had never been suggested if the motion for appeal was brought in proper time, and security was properly given, that the appeal should not be granted.
  Mr. Wilkinson argued that it was always at the discretion of the Court that the appeal was allowed.
   His Lordship said that it had never been taken to be so here. The Orders in Council said "shall give leave," and he could not alter the practice of the Court. He had no discretion in the matter.
  Mr. Wilkinson said that taking it that leave to appeal was given, then came the question of costs. He asked that according to the practice at home the taxed costs of the plaintiff should be paid, the plaintiffs giving an undertaking to refund them if the judgment was reversed on appeal.
  Mr. Dowdall replied that hitherto the costs had not been dealt with until the Privy Council had settled the main issue.
  Mr. Wilkinson remarked that the home practice was clearly defined to be as he had stated.
  Mr. Dowdall said that he had obtained two orders here before, and nothing was said about costs.
  Mr. Dowdall submitted that the matters were not divided as was the case at home.
  His Lordship said the rule had always prevailed here of suspending the decree entirely upon proper security being given, and the practice which had prevailed must be shown to be an unreasonable one before he could reverse it. The payment of the costs to the plaintiffs, upon their giving an undertaking to refund them if the judgment was reversed, might be an inconvenient course, and he did not see any reason for altering the rule.
  Mr. Wilkinson repeated that the course he was advocating was the ordinary practice at home.
  His Lordship said that it must be recollected that the American Trading Co.  was not under his jurisdiction.
  Mr. Wilkinson said with regard to the security he should ask that the amount should be deposited with some other bank, to the full amount of the decree, the costs of the appeal, and interest on the judgment amount.
  His Lordship pointed out that the amount when deposited at the bank would be accruing interest. With regard to the costs, could they not be taxed within the limit of time allowed for appeal?
  Mr. Wilkinson intimated that that could be done, and
  His Lordship then made an order suspending judgment pending appeal, upon the defendants depositing with the Hongkong and Shanghai Bank security for the claim and costs, and $2,500 for contingent expenses in connection with the appeal.

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