March the Canton branch wrote to the Consul begging him to cause the immediate release of the Kwong Hing Cheung, and indicating that "further enquiries as to what extent the brother of the proprietor of the sugar shop" who resided in Honam had an interest in it were to be made. There seems to have been a second letter to the Consul on the same date asking merely for the release of the silk shop. There is an interlude in connexion with the offer of Messrs. Arnhold, Karberg to stand security up to $46,000 for the Kwong Hing Cheung; but it is not necessary now to do more than allude to it. The silk shop was in fact released on 25th March, it having remained closed for 12 days. On these facts the action was brought; and in dealing with the plaintiffs' motion I have not to go into any questions of competency or jurisdiction, nor into any question of law; but must assume all these to be answered as affirming the jurisdiction of the Court to entertain the action, and the right in law of the plaintiff to bring the action.
The material paragraph of the Statement of Claim is paragraph 6, which alleges that at a date to the plaintiffs unknown the defendants in a letter or letters to the German Consul (and also in the accounts included in the letters) "falsely and maliciously published and represented to the Consul-General that the three plaintiffs, Leung Lai Shang, Wong Hiu Tang and Cheung Tsz Yuen, were partners in the Cheong Loong, and that the said Cheong Loong firm were indebted to the defendants in the sum of $51,097.04 (which is always referred to in this judgment as $50,000) for goods sold and that the plaintiffs, i.e. all the twelve plaintiffs, and their firm (i.e. the Kwong Hing Cheung) and the property of that firm, were liable to pay the said sum, less the $5,000 held by the defendants as security.
I omit the part of the paragraph which refers to the alleged representation that the three plaintiffs had absconded from Hongkong, and were in hiding, as that, in the circumstances to which I shall have to allude presently, was abandoned.
There then follow allegations that the Consul-General at the request and acting for and on behalf of the defendants illegally incited and procured the Chinese Authorities to issue a warrant for the arrest of the plaintiffs' (i.e. the 12 plaintiffs) as partners in the Cheong Loong firm for the purpose of exacting from them payment of the said sum ($50,000 less $5,000): that the defendants had commenced no judicial proceedings in any Chinese Court for the recovery of the said sum: that the defendants had no reasonable or probable cause for believing that any of the statements were true, or for procuring the issue of any warrant against the plaintiffs or any of them: and that by reason of the premises the plaintiffs (i.e. the 12 plaintiffs) have been seriously injured in their credit and reputation, that creditors of the plaintiffs had demanded immediate payment of sums due by the plaintiffs, and that their business had been much diminished.
Breaking up this claim into its elements there are involved the following different species of actions: an action for libel: an action for words: an action for malicious prosecution and an action for maliciously and without reasonable and probable cause setting a foreign Court in motion. I am disposed to criticise this pleading to this extent, that I should have preferred to see each form in which the action can be presented set out separately, for I am not at all sure that the law is identical with regard to them all. But I think that the Court is justified in looking at the pleadings and ascertaining what the cause of the action really is.
The case of Castrique v. Behrens (1) seems to me an authority for this; for there the facts merely were set out in the declaration, and the Court treated the action as one for maliciously and without reasonable and probable cause setting a foreign Court in motion, though it was argued as a case of conspiracy. I think it advisable to refer to this point, though in reality I think the only point which turns on it raised on the defendants' motion is whether a certain strict rule of pleading in a libel action is applicable to this case.
(1) 30 L. J. Q. B. 103.
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March the Canton branch wrote to the Consul begging him to cause the immediate release of the Kwong Hing Cheung, and indicating that "further enquiries as to what extent the brother of the proprietor of the sugar shop" who resided in Honam had an interest in it were to be made. There seems to have been a second letter to the Consul on the same date ask- ing merely for the release of the silk shop. There is an inter- lude in connexion with the offer of Messrs. Arnhold, Karberg to stand security up to $46,000 for the Kwong Hing Cheung; but it is not necessary now to do more than allude to it. The silk shop was in fact released on 25th March, it having remained closed for 12 days. On these facts the action was brought; and in dealing with the plaintiffs' motion I have not to go into any questions of competency or jurisdiction, nor into any question of law; but must assume all these to be answered as affirming the jurisdiction of the Court to entertain the action, and the right in law of the plaintiff to bring the action.
The material paragraph of the Statement of Claim is paragraph 6, which alleges that at a date to the plaintiffs unknown the defendants in a letter or letters to the German Consul (and also in the accounts included in the letters) "falsely and maliciously published and represented to the Consul-Generalth at the three plaintiffs, Leung Lai Shang, Wong Hiu Tang and Cheung Tsz Yuen, were partners in the Cheong Loong, and that the said Cheong Loong firm were indebted to the defendants in the sum of $51,097.04 (which is always referred to in this judgment as $50,000) for goods sold and that the plaintiffs,i.e. all the twelve plain- tiffs, and their firm (i.e. the Kwong Hing Cheung) and the property of that firm, were liable to pay the said sum, less the $5,000 held by the defendants as security.
I omit the part of the paragraph which refers to the alleged representation that the three plaintiffs had abscond- ed from Hongkong, and were in hiding, as that, in the circumstances to which I shall have to allude presently, was abandoned.
There then follow allegations that the Consul-General at the request and acting for and on behalf of the defendants illegally incited and procured the Chinese Authorites to issue a warrant for the arrest of the plaintiffs' (i.e. the 12 plaintiffs) as partners in the Cheong Loong firm for the purpose of exacting from them payment of the said sum ($50,000 less $5,000): that the defendants had com- menced no judicial proceedings in any Chinese Court for the recovery of the said suns: that the defendants had no rea- sonable or probable cause for believing that any of the state- ments were true, orfor procuring the issue of any warraut a- gainst the plaintiffs or any of them: and that by reason of the premisestle plaintiffs (.e. the 12 plaintiffs) have been serious- ly injured in their credit and reputation, that creditors of the plaintiffs had demanded immediate payment of sums due by the plaintiffs, and that their business had been much diminished.
Breaking up this claim into its elements there are involved the following different species of actions: an action for libel: an action for words: an action for malicious prosecution and an action for maliciously and without reasonable and probable cause setting a foreign Court in motion. I am disposed to criticise this pleading to this extent, that I should have preferred to see each form in which the action can be presented set out separately, for I am not at all sure that the law is identical with regard to them all. But I think that the Court is justified in looking at the pleadings and ascertaining what the cause of the action really is.
The case of Castrique v. Behrens (1) seems to me an
(1) 30 L. J. Q. B. 103.
authority for this; for there the facts merely were set out in the declaration, and the Court treated the action as one for maliciously and without reasonable and probable cause setting a foreign Court in motion, though it was argued as a case of conspiracy. I think it advisable to refer to this point, though in reality I think the only point which turns on it raised on the defendants' motion is whether a certain strict rule of pleading in a libel action is applicable to this
case.
407
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