400  APPENDIX  B
claim.  He  had  failed  to  do  that,  and  counsel  applied  that  that
claim  be  dismissed,  that  the  order  be  amended  accordingly»
and  Baron  Ward  be  now  left  to  take  such  steps  as  he  thought
fit  against  Mr.  Pavlow  in  the  Russian  Court.
His  Lordship  said  he  had  considered  the  matter  very  carefully, ­
  and  what  he  would  do  would  be  this  :  grant  an  adjournment ­
  until  June  15  and  fix  that  date  peremptorily  so  that,
in  the  event  of  the  defendant  not  appearing  to  substantiate
his  defence,  he  would  immediately  fail,  and  the  judgment,
as  modified  by  the  order  of  November  16,  1905,  and  the  order
of  the  Full  Court,  would  stand.  As  regarded  this  particular
claim  something  had  been  said  by  Mr.  Jones  as  to  its  nature.
His  Lordship  had  looked  very  carefully  through  the  record
of  the  case  and  also  the  report,  and  had  been  unable  to  find
that  it  had  been  seriously  argued  at  any  time  that  this  was
a  counter-claim  and  not  a  set-off.  At  the  same  time,  looking  at
the  Order  in  Council,  Article  151(3),  “Cross-action.—A  counterclaim ­
  shall  not  be  brought  in  the  Court  against  a  plaintiff  being
a  foreigner,”  his  Lordship  felt  clearly,  from  what  had  occurred,
that  the  plaintiff  in  this  case  did  not  consent  to  a  counter-claim
being  brought  against  him  in  that  Court  ;  and  it  was  perfectly
evident  to  his  Lordship’s  mind,  on  the  terms  of  the  Order,  that
if  he  did  adjudicate  on  a  counter-claim  which  was  not  properly
before  the  Court,  the  Court  would  be  exercising  jurisdiction
which  it  did  not  possess,  and  therefore  any  judgment  which
might  be  passed  in  the  matter  would  be  necessarily  void,  or  could
be  attacked  and  easily  upset.  He  thought  therefore  that  if  #
was  made  to  appear  to  him,  either  at  once  or  on  June  i5»
that  this  was  a  counter-claim  and  not  a  set-off,  then  he  ought  not
to  exercise  jurisdiction.  If,  however,  it  should  prove  to  be  a
set-off  on  argument,  then  it  seemed  to  him  that  would  substantiate ­
  the  defence,  and  the  Order  in  Council  did  not  modify
the  right  in  any  way  to  raise  such  a  defence  as  a  set-off.  1^
this  particular  case,  the  proceedings  had  gone  on  so  long  and  had
so  nearly  reached  an  end,  and  the  findings  of  the  jury  were  very
explicit  now  that  they  had  been  dealt  with  in  the  judgment  of
the  Full  Court,  that  he  thought  clearly  he  ought  to  entertain
this  set-off  if  it  proved  to  be  a  set-off  and  not  a  counter-claim-Therefore
  he  would  grant  an  adjournment  until  June  i5&gt;
and  the  case  would  be  set  down  peremptorily  for  that  date  ;
but  in  the  meantime,  or  at  the  trial,  if  plaintiff’s  counsel  chose
to  move  that  this  Court  did  not  entertain  this  claim  on  the  ground
that  it  had  no  jurisdiction  to  do  so,  he  would  entertain  the  motion-He
  had  felt  it  necessary  to  say  this  about  the  counter-claim  and
the  set-off  because  he  did  not  want  it  to  be  thought  that  he  was
assuming  jurisdiction  which  ought  properly  to  be  exercised