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Colonial Cases

Ting Tai See v. Hall, 1898

[civil procedure]


 

Ting Tai See v. Hall

Supreme Court for China and Japan
Hannen CJ, 25 November 1898
Source: North China Herald, 28 November, 1898


 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 25th November.

Before Sir Nicholas J. Hannen, Chief Justice.

IN RE TING TAI KEE AND OTHERS v. H. E. HALL.

In the matter pending between Ting Tai Kee, Kai Tai, and Chung Kuan Kee and H. E. Hall, builder and provision dealer of Shanghai, the last named moved that the petition of the plaintiffs be dismissed and they be decreed to pay the costs of the suit in the following grounds.

   [1.] That the petition of the plaintiffs is defective inasmuch as it bears no date.

   [2.] That the petition of the plaintiffs is still further defective inasmuch as it is not signed or sworn to either by the plaintiffs or their attorney.

      [3.] That the said petition is further defective in the fact that there is a mis-joinder of persons it being alleged that the plaintiffs are separately carrying on business in Shanghai aforesaid and in paragraph four the separate sums alleged to be due to them is stated. From the showing of the plaintiffs' petition it will be seen that there are three separate and distinct claims and therefore there cannot be a joinder of persons in this action each should sue separately for the particular damages resulting to him individually if there be any.

   Mr. H. P. Wilkinson appeared for the plaintiffs but Mr. Hall neither appeared nor was he represented by Counsel.

   Mr. Wilkinson said - I appear on behalf of the plaintiffs in the suit they are bringing against Mr. Hall, and I appear here to answer for the plaintiffs on the summons taken out by the defendant moving that the suit as it stands be dismissed for the reasons stated. I don't know whether your Lordship wishes  to hear me by way of argument on the matter.

   His Lordship - Do you wish to make any application?

   Mr. Wilkinson - I wish to make such application as you think necessary.

   His Lordship - You can apply for the summons to be dismissed.

   Mr. Wilkinson - Then I ask that it is dismissed with costs.

   His Lordship - So far as I can see the defendant is not represented by Counsel, but that may be some mistake. However, I think you are entitled to have action dismissed with costs, on the understanding that it may be put down again if it turns out simply to be a mistake.

   Mr. Wilkinson - As he is not represented by Counsel and your Lordship has power to go on with the matter in his absence would your Lordship listen to my arguments on the real point, as to the joinder of persons?

   His Lordship - I cannot very well dismiss it without hearing what he has to say but I can dismiss it with costs on the ground of his not appearing. The summons is dismissed on the ground of the defendant not appearing to support it, but it is understood that after paying your costs he can set down the motion again, subject to anything  you may do in the meantime.

20th November.

   This was a motion brought by Mr. H. E. Hall, builder, of Shanghai, to dismiss the suit instituted against him by the plaintiffs and others on the ground of certain irregularities in the form, the chief of which was the misjoinder of parties to the action. The case came before the Court on Friday and was dismissed in the absence of the defendant who was ordered to pay the costs, leave being granted to set down the action for re-hearing in case there should have been any mistake.

   The plaintiffs were now represented as before by Mr. H. P. Wilkinson and Mr. Hall conducted his case personally.

   Mr. Hall asked the Court to dismiss the summons on the ground that he could not be sued by a union of tradesman engaged in separate businesses.

   Mr. Wilkinson - Mr. Hall has not dealt with two grounds of his application - namely, that in reference to the date of the petition and as to the non-signing of it by the plaintiffs. In reference to that it is only necessary to say that the date on any document need only be that of the Court file; whether there are any other dates, the date on which the claim arose, or the suit was instituted, the date of the docket of the process on the file of the Court is immaterial. The petition may have been dated a month before it was put into Court but it is immaterial and I have no fount in this case that it had been put on the file in the proper way. The names of the plaintiffs appear on the record itself and also in their submission to the jurisdiction of the Court. I do not admit that there is anything in the Rules of the Court that I can see makes binding the signing of the petition. 

   As regards the point of mis-joinder, I would submit that these parties have been joined as plaintiffs not accidentally. The petition allege that the defendant bought from the plaintiffs and they sold to him a certain number of cattle and that there is now owing by him to the plaintiffs such and such an amount of money.

   At the request of the Court Mr. Wilkinson the read Rule 39, the rule of the Supreme Court applying to the joinder of parties in any action.

   His Lordship said that the case of Taune Kijima v. the P. & O. Company, 1895, A.C. 661, clearly indicated the law on the subject of this action.

   In that case the Supreme Court allowed a joinder of parties which on appeal to the Privy Council was disallowed, and an interpretation was put upon the Rules of the Supreme Court which was opposed to Mr. Wilkinson's contention.

   His Lordship then read an extract from Lord Macnaughten's which laid down that nothing in the Rules of the Supreme Court of China and Japan warranted the joinder in one suit of different and distinct causes of action not being causes of action by and against the same parties.

   His Lordship said the case must go in favour of Mr. Hall. The plaintiffs' petition could be amended by striking out all but one plaintiff, and they, the plaintiffs, would have to pay $10 costs.

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