Tung Lok Long & Others v. Reuter Brockelmann vo
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1.2.3.4.5.157.7
18. 19. 20. 23.
PIGGOTT C. J. :-
1
This action was tried before me and a special jury on 29th, 30th June, 1st, 2nd, 3rd, 6th, 9th, 10th, 13th, 14th 15th, and 17th July. In order to make the motions which were made to the Full Court intelligible, it is necessary for me to give a brief summary of the case and to explain the course which I adopted at the trial. Certaiu communications having been made by Messrs. Reuter, Brockelmann to the German Consul in Canton with regard to the plaintiffs in this action which resulted in the seizure of their property by the Chinese authorities, the plaintiffs considered that the defendants' conduct gave rise to a cause of action triable in this Court, and this action was brought. Certain questions of law were raised by the defendants with a view to show.. ing that the Court had no jurisdiction to entertain the action. These being overruled, the case proceeded to bearing on its merits. At the close of the defendants' case the plaintiffs' Counsel submitted that the defendants not having justified the seizure by the production of the document où which it professed to be based, the plaintiff was entitled to judgment, there being a trespass, not justified. On this point, which is throughout this judgment referred to as the "question of trespass," I was of opinion that the point was rightly taken. I therefore directed the jury to find for the plaintiff on this issue, and to estimate the damages accordingly. In view however of the fact that all the evidence had been taken, and of the possibility of my opinion on this question not being sustained on appeal, I thought it advisable in the interests of all parties to submit certain questions on the merits of the case to the jury, so that in the event of my finding on the question of trespass not being maintained, either party might move for judgment on the findings of the jury in answer to these questions.
f
In accordance with my direction the jury returned a' verdict for the plaintiff on the question of trespass, with one dollar damages. They also, with varying majorities, answered the other questions in favour of the defendant. I thereupon entered judgment for the plaintiff with costs. After the jury were discharged, but before they left the box, the foreman asked leave to haud in a type-written paper which contained some remarks, and the Counsel for the plaintiff moved that the paper should be entered on the record, to which I acceded. The plaintiffs thereupon moved the Full Court to set aside the verdict of the jury on the questions I submitted to them, other than the question of frespass, on the ground that the verdict was contrary to the evidence, against the weight of the evidence, and perverse. If this motion is successful the plaintiff will remain with the verdict already obtained.
The defendants thereupon filed a counter-motion which, in its final form, was to set aside the judgment on the question of trespass, and enter judgment for the defendants on the findings of the jury. The motion also raised the questions of jurisdiction above alluded to, and maintained that I should have non-suited the plaintiffs, and also other matters. This motion by some curious misreading of the rules, which led the defendants to think that they had six months in which to move the Full Court whereas the plaintiff only had 14 days, was out of time. The Court decided however, although it was stoutly resisted on the strength of authorities, to allow the motion to be made, mainly on the ground that we had introduced a new inter- pretation of s. 597 of the Code of Civil Procedure, bringing, in virtue of our powers under s. 4 of the Code, the practice on this point into line with the English practice.
The result of the defendants' delay in giving their notice is that the natural sequence in which the points should have been raised before this Court is inverted, and the question of jurisdiction, as well as the question of trespass, bust be considered after the question on the merits, instead of before
it.
I deal first in order therefore with the plaintiffs' motion that the answers of the jury to the questions submitted to them be set aside as being (i) contrary to the evidence, (ii) agalust the weight of the evidence, and (iii) perverse.
A
C.0.
13570
RECR
REG 21 APR 09