CO129-355 - Governor Sir Lugard - 1909 [1-3] — Page 428

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transitory is more closely linked with the local part of the claim thin it was in Skimmer's case ( ).

But there is another reason why, as it seems to me, the rule in Doulson r. Matthews () does not apply to this case. The action is not brought for the trespass, assuming it to have only been for seizure of the store; but for words, or for maliciously setting the law of a foreign country in motion: the trespass comes in by way of damages. The action is a transitory one, and it cannot be held not to lie because one of the consequences of the act complained of is trespass to realty; that really is but an incident in the consequences; another and more important one is the damage to the plaintiffs' trade, which is inevitable to such seizure. It would be pressing the doctrine of local actions much further than has ever been done before to exclude these quences from the consideration of damages.

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But the whole idea which is at the bottom of this doctrine seems to me to be against excluding the trespass to the realty as a ground of damage: that idea is, certainly in the Chancery cases and probably also in the common law cases, a refusal to adjudicate upon the title to real property in a foreign country, because the Courts of that country are admitted to have exclusive jurisdiction. Yet where the title is not in dispute, and the English Courts have proper seisin of another question, they have not hesitated to deal with it, although it does incidentally relate to land abroad: thus they have made forclosure decrees of mortgages relating to land abroad. Here the title to the silk shop is not in dispute.

For all these reasons I am of opinion that reason (b) fails. There only remains reason (e) which is that the alleged libel was not set out in the Statement of Clair.

I confess that a technical point of this kind taken at the trial does not appeal to me at all. If the point is a good one it should have been taken at a very early stage of the proceedings: and by not doing so, the defendants have, in my opinion, waived it. But if there is such a rule it is peculiar to actions of libel: it certainly does not apply to an action for maliciously setting foreign law in motion. The substance of the wrougful words was set out, and in my opinion sufficiently set out. This ground therefore also fails.

I now come to the question of trespass.

At the conclusion of the defendant's case the Counsel for the plaintiff submitted that there had been a trespass- i.e. an invasion of the plaintiff's right-and that as this trespass had not been justified by production of the warrant or legal process the plaintiff was entitled to a verdict. And I so directed the jury.

Before considering whether the law as I laid it down on this point was right, I must revert once more to the nature of this action. If the case is to be looked on as one of words, and the seizure as a consequence, as I have indicated above, this point does not arise, and if the case were only this the direction to the jury would have been wrong, and the verdict would have to be set aside. But in paragraph 7 of the Statement of Claim the action is put in another way: it alleges that the Consul General, at the request and acting for and on behalf of the defendants, procured the Chinese authorities to issue a warrant for arrest and seizure, etc. Therefore the allegation is that the defendants, through their agent, set the Chinese authorities in motion, without reasonable and probable cause. To this the question of trespass applies; yet even here the question of trespass to the realty abroad comes in: and the technical question as to production of the warrant only arises if I am right in severing the seizure of goods from the seizure of the shop. On this basis then I discuss the question of the production of the warrant.

I followed Holroyd v. Doncaster, () which is still quoted in Roscoe as good law, and if I may say so, it certainly seems to me to be consistent with sound, practical, good sense, That was a case offalse imprisonment-seizure of the person: the rule must be equally applicable to seizure of goods. laid down that where a man deprives another of hsi liberty it is for the defendant to justify; and the onus of justification being on the defendant if a warrant existed it was for the defendant to produce it. It was clearly not the

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