249
In 9649/6.
ENCLOSURE 3.
Extracts from the Judgments in the Case of PISANI v. LAWSON (8 Scott, 180. 6 Bing, N. C. 30. 8 Dowling, P. C. 57. 3 Jurist, 1153.)
Per TINDAL, C. J.
56
No authorities have been cited to support this plea, and if the Court were to hold that this excuse could prevail, some of the consequences which would flow from such a decision would be very striking and it would present our laws in a very unfavorable light to strangers, if we were to say that foreigners cannot bring an action for injuries committed in this country, unless they come here first, and especially when it is admitted that if they came here for a single hour only, their right to bring an action would accrue.”
Per BOSANQUET, J.
"The facts stated in the declaration, and which are admitted in the plea, import an injury to the plaintiff, and such an injury for which any other person would be entitled to maintain an action, but it is said that the plaintiff is not entitled to maintain an action on account of a personal disability. It is the duty of the defendant to show the ground of that disability, and he alleges that the plaintiff is an alien, and that he never has resided in this country, and, therefore, has never, at any time, been within the allegiance of the Queen, and consequently cannot maintain this suit, for that allegiance and protection are mutual, and a party never having owed the former, cannot claim the latter. But that is not universally true, because it is admitted, that a person who trades to this country is entitled to protection; and it has been shown, in one case which has been cited, that an alien may maintain an action for slander, and in another, that an alien living in France, may maintain an action of debt. It has been admitted, that personal actions may be maintained by a foreigner, merely because he has been in this country for one hour, although he may then have gone away again, but the question is then, whether there is not in this case quite as much protection due from the Sovereign, as in an instance of that description?”
Per COLTMAN, J.
"It would be a very disgraceful thing, if by the law of this country, the plaintiff had not a right to recover compensation for this injury. The injury was inflicted in this country; if it had been committed abroad, the question might have been raised by a proper mode of pleading and the burden of proof is cast on the defendant, to show why he should be excepted from the general rule.
He says that the party is an alien, and that that is a sufficient answer, but does he produce any authority to show that that is a good plea? I have not heard of any case on that point. Then if there is no authority, what reason is then assigned why the plea should be deemed good, except that the party is not within the allegiance of the Queen? There is none, and is that a sufficient reason for his not maintaining this action? It certainly is not, because it is admitted, that cases of merchants may occur in which the objection does not apply. This is not a time when we should be disposed to narrow the limits of the free intercourse subsisting between friendly nations, and when we find such an opinion to have been expressed by this Court, as is reported in Dyer, I think we ought not now to attempt to narrow or confine the liberal construction proper to be put upon our laws with respect to foreigners.
MAULE, J. concurred.