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Colonial Cases

Kane v. Hudson, 1899



Kane v. Hudson

Supreme Court for China and Japan
Bourne ACJ, September 1899
Source: North China Herald, 29 September 1899




Before Mr. F. S. A. Bourne, Acting Chief Justice.


   This was an application made by Mr. Browett, on behalf of the defendant in Yung O. Kane v. A. J. Hudson, a case heard in Ningpo before the British Consul and decided in favour of the plaintiff.

   Mr. Teesdale appeared for the plaintiff.

   His Lordship said he had intended to hear the motion ex parte and would hear first what Mr. Browett had to say on behalf of the defendant to show cause why he should be granted leave to appeal, and if Mr. Browett made out a prima facie case, he would write to Ningpo for the Judge's record. It would have to be a very strong reason indeed to cause him to make an order, and if Mr. Browett made out a case he would adjourn and when the judge's record arrived Mr. Teesdale could address the Court for the plaintiff.

   Mr. Browett said on behalf of the defendant he now moved that he might be granted leave to appeal to the Court against the decision given in the case in the Provincial Court at Ningpo on the 26th of August last. He made the application under the last clause of Section 119 of the China and Japan Order in Council, 1865.

   His Lordship said that by that clause he would have to show that there had been a substantial miscarriage of justice, and if he could not he could not succeed.

   Mr. Browett said he would read the affidavit, but his Lordship said it was unnecessary as he had read it.

   Mr. Browett submitted that there had been no cause for action between plaintiff and defendant. In the first place plaintiff did not appear. There was no evidence produced at the hearing that the sum claimed ($50) had ever been advanced by the plaintiff or that anything had been done to place her in the position of plaintiff, as for instance by way of assigment of the debt. Another point was that if defendant owed the money or any such sum, to a person entitled to sue Mr. Hudson would be liable to answer that action and the judgment in their suit would be no protection to his client. 

   There was no evidence produced at the hearing that the plaintiff had advanced the money; on the contrary, plaintiff produced a witness who testified that he (the witness) had advanced the money. In fact, there was no evidence brought forward at the hearing connecting plaintiff with this transaction in any shape or form. The evidence brought forward for the defence was that defendant never received the money, and defendant's compradore testified that he had received $50 for the purpose of assisting a brother of the first witness or the plaintiff. Further, that he had received that money on his own account and defendant had nothing to do with it. The evidence showed that it was purely a Chinese case and should have been brought in a Chinese Court against the compradore. Was it likely if defendant had received the money he would have gone inti legal proceedings which cost him more than $50? Would he have risked injuring his reputation by so doing? Counsel was aware that the sum was small, but it was not the amount but the question of principle, and it would be a very serious thing indeed for defendant if the judgment was allowed to stand. It meant that he would lose the greater part of his business, and would be looked upon by foreigners and Chinese as a man not to be trusted. 

   Counsel submitted that his client had acted rightly in refusing to pay the money, and it would be absurd to think for one moment that a man would refuse to oat a paltry sum of $50 is he had actually received the money. When judgment was given by the Court at Ningpo, Counsel immediately applied for leave to appeal, and offered to deposit $250 to cover costs, but the Consul emphatically refused leave, and he consequently had to make application to that Court.

   His Lordship said the 119th clause gave this Court an extraordinary jurisdiction, which in cases like the present should only be exercised to prevent a serious miscarriage of justice through a mistake or otherwise. He had read the papers in this case carefully and also listened attentively to Mr. Browett, and it seemed to him that it was not a case in which he could allow an appeal. 

   To take the point Mr. Browett had raised, first as to the question of plaintiff. The plaintiff in the petition was a woman, said to be absent, but the man who actually paid the money was her chief witness. What would happen in a case like this? Why the people would go to the Consul to get justice, and the Treaty of Tientsin was quite clear as to what a Consul's duties were. He would probably ask the Englishman to pay the money and if he declined there would be nothing for the Consul to do, in his intention to get justice for the Chinese, to institute a suit against the defendant. The poor woman had probably no lawyer to lead her and examining witnesses on her behalf as far as possible. In mixed cases where Chinese were plaintiffs the Consul's Court was primarily one of reconciliation.

   In this case the Consul might have amended the petition and joining Chang Yung-hay as plaintiff or he might have proved that Chang was the plaintiff's agent.  Next in regard to Mr. Browett's point that the compradore should have been sued and not Hudson, the compradore when acting within the scope of his employment, was Mr. Hudson's agent. Hudson had been instrumental in getting the man imprisoned and to Hudson these people came to get him out. Would they have gone to the compradore had he been an ordinary Chinese ad not Hudson's compradore? One of the affidavits stated that Hudson was present when the compradore received the money. In fact if the compradore received the money it was as Hudson's agent. They must look to what was done not what was said, Hudson was therefore rightly sued.

   In regard to Mr. Browett's argument in respect of Hudson's character and reputation a perusal of these papers led to the conclusion that the defendant had been meddling with the administration of Chinese justice in a matter in which he as a British merchant was in no way concerned. If he had burnt his fingers this Court was not the place to come for a remedy.  Lastly, in regard to the sum of $10.50 said to have been repaid by the complainant to the plaintiff, if this fact was proved to the satisfaction of the Judge at Ningpo he would be able in his Consular capacity to set off this sum against the $50 now in his hands. The motion was dismissed with costs.

 [Affidavit referred to was published but not transcribed.]  

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