THE
HONG KONG TIMES.
HONG KONG, WEDNESDAY, APRIL 28, 1875.
SUPREME COURT.
ORIGINAL
JURISDICTION.
Tuesday, April 27th, 1875.
BEFORE CHIEF JUSTICE SIB JOHN SMALE AND MR. JUSTICE SNOWDEN.
ACTION FOR FALSE IMPRISONMENT IN CHINA,
Mr. Hayllar, Q.C. (instructed by Mr. H. L. Dennys) applied for A rule nisi against Mr. E. Vogel to show Cause why he should not be restrained from continuing the unlawful detention of Chun-a-chew in Canton.
Mr Hayllar said he moved under section 18, of the Code. The plaintiff was named Chan-a-chew, and he brought an action against Mr E. Vogel, for false imprisonment.
The Chief Justice said the first question was, had this court jurisdiction; and then was the defondant bound to answer a prima facie case? A more important question had soldom besu heard here.
Mr. Hayllar said the plaintiff had been residing at Singapore,
His Lordship--Is he a naturalised Englishman? Mr. Hayllar said he was not, but he should be able to show that that made no difference. Plain- tiff returned a short time ago to his native village in China, when he was seized in the night time by a band of soldiers, chained, and taken to the City of Canton, where he was there put into a criminal gaol.
The Chief Justico said he supposed it was the ordinary gaol.
Mr. Hayllar said there were several gaols there, but this was a criruinal gaol. There was no doubt upon that point. He was placed among criminals and treated as a criminal. The reason of his being in prison was that between the years 1871 and 1878 there was a firm of traders here carrying on business as a mat shop, under the title of Tak-Wo. This firm had, at three different times, shipped through the firm of Messrs. Vogel, Hagedorn, and Co., of which the present defendant, Mr. Vogel, was the senior and residont partner, a quantity of matting to America. Accord- ing to Mr. Vogel's version, the transaction ended in a debt to him by the Tak-Wo firm. This firm consisted of a number of partners, whose names had been set out in affidavits by those well acquainted with them, but it was distinctly asserted that the man in gaol at Canton had no connection with the firm in any way; but he was related to Chun-Shm, one of the partners. The object, as was alleged in the petition, of keeping the plaintiff in gaol was to compel him to pay Mr. Vogel's claim against the Tack-Wo fina. The plaintiff, through his relations here, had petitioned the Government to have some investigation of the case, and this had led to the filing of certain affidavite. The learned Counsel then proceeded to read the affidavits. The firet was that of Mr. C. C. Smith, Acting Colonial Secretary and Registrar-General (the duties of the latter office being now discharged by Mr. Tomnochy). In February last, he received a petition in the Chinese language from Chun-shun and others, for the release of Chun-a-chew, who was said to be confined in a prison at Canton at the instance of Mr. Vogel. Subsequently Mr. Vogel called at his office, and Mr. Smith mentioned the matter to him, and urged the injustice of keeping the man in custody. Mr. Vogel did not deny the fact, and he further admitted there was no evidence of the mau being a partner of the Tak-wo firm. Mr. Smith was, however, unable to got the man released. The learned counssl nextread the affidavit of Mr. H. L. Dennys, solicitor. Mr. Dennys had been several times to Cunton abort
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the matter. On the 16th of February, 1875, he was informed that plaintiff was in a gaol at Canton, under the supervision of the Nam-hoi Magistrate. In pursuance of instructions from the man's friends, he wrote to the German Consul at Canton, urging him to get the man released; who, he pointed out, was of advanced age and suffering from the imprisonment; adding that he was instructed to bring an action for false impri- sonment. On the 18th of February, he received an answer from the German Consul, who stated that he could not interfere with the measures the Chinese authorities thought fit to take, but that the man would be released on payment of the money to Mr. Vogel. On the 20th of February, he waited on the Hon. C. C. Smith, and asked his assistance to obtain the man's realease. A petition was by request sent to Mr. Smith from the man's friends; in which the facts of his apprehension, treatment, and his having nothing to do with the debt were set out. The athdavit of Chun-Shun was next read; and this, too, negatived the idea that the man had anything to do with the Tak-wo firm.Another affidavit from a clausman of the prisoner was read, to the same effect.-Mr. Hayllar now urged that this Court had jurisdiction to entertain the suit, and that plaintiff was entitled to an injunction at this slago. As showing the Court'e jurisdiction ho quoted the Halley case (reported, 2 Privy Council, p. 202), in which it was held that aliens could sue in British Courts for torts committed in foreign countries, if the mattor was actionable both by the law of England and the law of the country where the alleged wrong was committed. He next quoted the case of Scoth v. Lord Seymour, for ussault and falso imprisonment at Naples; in which it was held that an action would lie in England, and that it would not be necessary, as required by the law of Naples, to wait till the party had been found guilty and condemned. The learned Counsel said there were many other cases upon the question, but there was no doubt of the right of one alien to sue another alien.
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The Chief Justice, again remarking that this was a very important case, said Mr. Hayller had already shown enough to entitle him to the rule, The next question was whether plaintiff was entitled to an injunction at this stage.
Mr. Hayllar said he had yet to deal with the question of foreign law, as to whether what was complained of was an offence by the laws of China. In England the practice was to call a foreigner, au expert in his native law. But here he would go to the highest authority published in China, the Pekin Gazette, a translation of part of which he held in his hand. There were three cases of false improvement, from which it would be seen that the method of procedure against the man was not justice even in China.
The Chief Justice said he thought the right course would be for the man to be brought to the Court, and that each party should pay into Court
a suficient sum to abide the issue.
Mr. Brereton (who happened to be in Court) said he would consent to that.
The Chief Justice-What can be the character of a man who keeps another in prison at Canton after that ?
Mr. Brereton said that if Chun-shun would give security to Messrs. Vogel, Hagedorn and Co. for the amount claimed by them, he, on their part, would give sufficient security for the amount claimed in this action, and then the man might be released. But he should say they were not responsible for his apprehension and detention.
The Chief Justice there was law enough raised to antitle Mr. Hayllar for a rule nisi. He would say nothing whether he was right or wrong, but he recommended both parties to give security to the satisfaction of the Registrar of the Court- ample security, to cover costs also. Then the max should be brought here. He would grant the rule nisi, with a recommendation that both parties should take such steps and make such arrangements as they thought fit. This Court would be wanting
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in proper power if its arm could not reach questions of this kind. Did Mr. Brereton mean to say that
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