· 64
THE PRINCIPLES OF FRENCH DIPLOMACY IN CHINA.
was
20th July.
THE HÓNGKONG WEEKLY PRESS AND
of the matter.
Mr. Francis said that in reference to the
bona fides of the appellant it seemed to him that there were very grave mistakes-to put it mildly -in the affidavit and that Mr. Jackson had been in communication with Allinson long before he had stated.
The Chief Justice pointed out that, in re- ference to the question of time, the affidavits must be taken as they stood.
J
[July 21, 1897.
appellaut in this case has not soted bona fide. That observation, of course, must be made sub. ject to the question of the cross-examination of the appellant on his affidivit.
That oross examination may or may not show that he did not act bona fide, but, without deciding the question as to the cross-examination, I do not think there is any ground for the Court to take it that the appellant has not acted bona fide in this matter. The question is whether he has shown due diligence in moving the Court for this extension of time. The period that has elapsed since the statutory time expired some weeks. That is a long time on the face of it, and I think the Court must carefully watch proceedings ander this proviso and make sure that it carries out this power according to judicial rules. Has the appellant, then, acted in such a way as to show the Court that he has proceeded with due diligence in collecting evi- dence and bringing that evidence before the Court? We come to the conclusion, and with
his
Mr. Slade submitted that the appellant had used due diligence in getting the truth to enable him to bring the motion before the Court. He had written to Shanghai to the man Alliuson, who had filed two A VERY frank confession of the aims and affi lavits, the second one of which stated principles actuating French diplomacy in that the dog was found by him at the China is made by the Avenir du Tonkin. end of September or the begining of October, Our contemporary's text is the alleged new whereas the respondent's case was that he did Franco-Chinese convention. A short time not receive the dog until January of this year. ago news was received through REUTER that The delay was a genuine one and was caused by M. GERARD had succeeded in obtaining Mr. Jackson's endeavour to arrive at the truth further concessions from China, but this that the Court should grant the extra time.
Counsel therefore contended statement was contradicted the other day by
The Paisne Judge pointed out that the ap- the N. C. Daily News, which stated that thepellant could have filed a motion within the only foundation for the report was the seven days. Many motions had been filed fact that M. GERARD had been trying simply for the purpose of keeping cases alive. to secure such concessions. Whatever the
Mr. Slade said the appellant did not know what the evidence of Allinson was until he re- truth may be on this point we have
ceived the second affidavit. Counsel concluded no doubt that our Tonkin contemporary is his argument by saying that if their Lordships quite correct in its description of M. declined to grant the application they would some regret, that he has not done so, that GERARD's attitude. The Minister, says the allow a lying defence to prevail against a per- too long a period of time has elapsed, Avenir, in his relations with the Govern- fectly honest man.
and that he has not occupied that period of time ment to which he is accredited works on a
so profitably as he might have done, to induce fixed principle, and that is that France
the Court to exercise its discretion in his favour. should always be considered as the most
In the first instance, the appellant might easily, privileged nation. Thus he never allows
the whereabouts of Mr. Allinson within an one would think, have obtained evidence as to the least opportunity to pass without mak-
earlier period than the eight days which elapsed ing it understood that any favour accorded
after the judgment. Mr. Allinson was em- to another country must be immediately
ployed in the Ordnance Store Department. counter-balanced by advantages given to
The appellant might have gone there and ascer- France. The negotiation of the late Treaty
Mr. Francis then submitted that the appellant tained what had become of him. We think it a case of tit for tat, a blow aimed had not been diligent and had not dealt honestly is very likely that the Ordnance Store Depart- at the ambitions of England in con-
with the Court. But apart from all that, conn-
ment would have told him that he had gone sel contended that there was no ground for the into the employment of the Imperial Maritime nection with the privileges recently
extension of time, which should not be given un- Customs. After he learnt that, he could easily obtained by that country. The authorisa-less there had been some mistake or misapprehen- have ascertained from the head of the Imperial tion given to France to penetrate into sion either on the part of the applicant or his Maritime Customs here at what port Allinson Yunnan corresponds to the rectification. of solicitor which prevented him from entering his
was stationed. Within seven days. he might the Burmah frontier; to the opening of the appeal in due course. The respondent was in a
have ascertained where Allinson was. At all West River corresponds the prolongation position to show that the affidavit was not cor- events he could have ascertained within eight of French railways into Kwangsi even to
rect and counsel asked for permission to cross- days of the delivery of the judgment. What examine Mr. Jackson ou the affidavit. Nanning-fu, the most important place on
was his right and reasonable course? I think, the river from a commercial point of view. retired.
Mr. Slade having replied their Lordships and my learned brother thinks, too, that proper course was at once-the time Our contemporary further says it is amus- On returning into court after a few minutes' being gone by one day-to have filed an ap ing to watch the steeplechase which absence the Chief Justice said-This is an application to appeal and to have stated to the France and England are running in plication to the discretion of the Court to ex- Court that he was quite sure that the dog was China. Amusing it may be, but it is tend the time for the making of a motion asking his, that Allinson was the person who could a pity our French contemporaries cannot Judgesitting in the Summary Jurisdiction of the and that he was quite ready to act on Allinson's- leave to appeal against a judgment of the Puisne support the contention that the dog was his, recognise that the race, if race it can be Court. The application is made under section 41 evidence as far as he could judge. Then the called, should be conducted on equal terms.
of the Supreme Court (Summary Jurisdiction) Court, with these materials before it, would no As the Avenir says, France always wants to Ordinance, 14 of 1873. That section reads as doubt have extended the time for him to file his be the most favoured nation, in other words, follows:-"The Puisne Judge of the Suprome notice of motion for leave to appeal within a rea- to have her competitors handicapped. Eng- Court shall, as a general rule, preside at the sonable time-say a month or something of that land, on the other hand, from the commence- hearing of all suits in its summary jurisdiction; kind-in which he could communicate with ment of foreign intercourse with China, has and in case either party shall be dissatisfied Allinson and obtain Allinson's statement. That never sought to secure any exceptional ad- with his decision of any question of fact or of would have placed him in the right. He would vantage for herself. Every privilege she has days from the date of the judgment apply to
law arising in the case, he may within seven then clearly have been able to proceed in due secured has been secured equally for all the the Full Court in its original jurisdiction for
course and would have been showing due dili gence. If he did not do that we think if, when Treaty Powers, France included, whereas leave to appeal, and the Fall Court may grant he got Allinson's first affidavit in which it was the object of France is to shut out other leave to appeal on such terms as to notice and stated that Allinson found the dog, although Powers, especially England. If the ad- other matters as it may, in its discretion, think the date was not mentioned, he should have vance of France meant the opening of new
fit: provided always that the Full Court moved on that affidavit for an extension of time, markets to the trade of the whole world she may, in its discretion, extend the time The statement when the dog was found clearly would carry, with her the hearty good wishes before or after the expiration thereof." In was lost, and he might have come to the Court and hereby limited for such application either went to bear out that it was appellant's dog that of England in all her colonial enterprises.
this case the judgment from which it is sought to said "Here is Allinson who found the dog," and obtain leave to appeal was pronounced on the he could have asked the Court to extend the 20th May last, and the notice of motion was time in order that Allinson might make a fur- filed on the 1st July last. It may be taken, for ther affidavit respecting the actual date. the purpose of the present bearing, that the think the Court might have granted an exten- application for the extension of time was also sion of time under those circumstance. Well, filed on the 1st July. Then the question arises then, he did not act in either of these ways, and whether or not the appellant has brought him- it appears to us that he took much of his leisure self within the terms of the proviso and has in communicating with Allinson. We are not appealed to the Court in such a way as to enable quite satisfied that he acted so promptly as he it to exercise its discretion in his favour. should have done. It is only a four days' pas- We think that the principles on which sage to Shanghai and there is frequent com that discretion should be exercised are
munication. Therefore we do not think, on the pretty much the same as those which guide the whole, that the suffering of some six weeks to High Court of Justice-the Court of Appeal elapse from the expiration of the time allowed at home in dealing with an application of a like by law is reasonably accounted for. We think nature-an application to bring forward a he should have been able to come before this motion although the time fixed by the rules has Court for an extension of time sooner than he expired. The Court, before granting any such has, even if he did not act in either of the ways application, has to be satisfied, I think, that I have suggested. Therefore we arrive at the the party has acted bona fide and has shown conclusion-although with some regret, becausé due diligence in his proceedings in reference to we think that Allinson was undoubtedly a the matter before the Court. Now with regard material witness and it was desirable that his to the question of bona fid's I think, so far as evidence should be obtained-having regard to the materials before the Court go, there is all the circumstances, that the appellant has no reason why the Court should think that the not acted with due diligence in this matter and
SUPREME COURT.
14th July,
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT-SIR JOHN Carrington (CHIEF JUSTICE) AND MR. A. G. WISE (PUISNE JUDGE.)
W. JACKSON, APPELLANT, v. A. PRIDDLE, RESPONDENT,
Plaintiff moved for leave to appeal from the decision of the Puisne Judge in an action brought against the defendant for the recovery of a bull terrier dog.
Mr. M. W. Slade (instructed by Mr. C. D. Wilkinson) appeared for the appellant and Mr. J. J. Francis, Q.C., (instructed by Mr. J. Hastings) represented the respondent.
The appellant's application to extend the time for the making of the motion was taken first
|
I