action. But so long as the verdict on the question of trespass remained, it covered the whole field, and the other questions and answers remained in abeyance. The course was, as I explained at the trial, manifestly for the convenience of all parties.
With regard to depriving the plaintiff of his costs because the jury had only awarded nominal damages, I did not think it was a case in which I ought to exercise my discretion. That estimate of damages was manifestly wrong (in view of the opinion of the jury subsequently expressed, I am of opinion that it was perverse), and the conduct of the defendant throughout was such as in my view not to entitle him to any special favour in the matter of costs.
The learned Puisne Judge has drawn my attention to a point of importance in connexion with this matter which escaped the notice of the Counsel engaged as well as myself.
The question which should have been taken first in order is not the question of trespass but the right of the 9 to sue at all, which if they were not partners in the Kwong Hing Cheung they would have no right to do; in other words, if they were not partners in that firm, their property had not been seized by the defendants, and therefore they could not have called on the defendants to justify by production of the warrant, and so would not have been entitled to credit on the question of trespass.
Had the result of the motion in so far as it relates to the partnership of the 9 in the Kwong Hing Cheung been different this point would have necessitated some change in the final order, but as I am of opinion that the verdict of the jury on that question must be set aside, the verdict on the question of trespass must stand.
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