23
plaintiff's duty to produce the warrant; his right of action accrued on his detention and no evidence was offered by the defendant to repel it. There was a good deal of argument as to whether this rule applied in case as well as trespass: but Best C.J. said it was impossible for the Judge, the warrant not having been produced, to say whether or not the action was commenced in proper form. Then, the warrant being produced, other questions arise, whether it is void or irregular, and whether the Magistrate is liable for excess of jurisdiction or not. Holroyd v. Doncaster () seems to me to lay down the keystone of the law: Smallwood () another case which was cited, comes after in proper sequence, and is not at variance with it. The defendant comes to a Magistrate and asks him to exercise his judgment; clearly if the Magistrate exceeds his authority the party who laid the complaint is not liable. Therefore I think I was right in assuming Holroyd v. Doncaster () to be good law. Now this still has to be linked on to the facts of this case. Once admit that the action for setting the foreign law in motion will lie, the rest is plain. Castrique v. Behrens ()
Now at the trial the main point discussed was, whether, the action being for causing the plaintiff to be apprehended under a Justice's warrant, it was incumbent on the plaintiff to produce the warrant: Bayley J. who tried the case held that it was not, and the plaintiff recovered damages. But the defendant moved to enter a non-suit, and the point was fully dealt with by Best C.J. And the broad principle was laid down that the action will lie, but that the rules of law applicable to the corresponding action for setting English law in motion must apply. The rule specially referred to was that the plaintiff must show that the proceedings have terminated in his favour, if they are capable of doing so, why should this other rule be excluded? Many reasons may be advanced why it should not. Once admit that this action will lie, and that we must, with all becoming deference, criticise the procedure taken by the Consul.
I say as I said to the jury, that perhaps somewhat unexpectedly, the English Courts, by the large basis of competence on which they act, do provide an effective means for preventing those who are subject to their jurisdiction from committing acts of intolerable injustice, and turning the Treaties of Tientsin into instruments of extortion. I cannot imagine anything more oppressive than for persons, whether they have a good case or not, to set their Consul in motion, and through him the Chinese authorities, get property seized, and when they are asked what it is all about, to calmly fold their arms and tell the plaintiff to find out for himself. The law is a just law: and it is primitive in its simplicity. You defendants say you have a right to seize, or the Chinese authorities have a right to seize, on your behalf: produce your warrant and let us see whether they have acted rightly or not. It may be that with the production of the warrant the case might collapse. But until you do so we cannot tell.
It was said that the plaintiffs by referring to the warrant in their pleadings admitted that there was a warrant, and that this obviated the necessity of production. This is exactly what happened in Holroyd v. Doncaster (), because there the plaintiffs' counsel had opened the case as one of arrest on illegal warrant. I am therefore of opinion that my direction to the jury on this point was right, and that the verdict must stand.
The last two points raised in the motion relate to the question of costs, but as I am of opinion that the motion fails on the other grounds raised, they need not be considered.
It may be however advisable for me to state the grounds on which I acted in making the order as to costs.
It was argued that the defendant, having succeeded in getting favourable answers to the 5 questions which were independent of the question of trespass, he was entitled to have the costs of those issues. But they were not issues. The reason why they were left to the jury at all was that if the verdict of trespass was set aside on the ground of misdirection the findings of the jury on the other questions would remain, and on them the defendant could move for judgment (as he has in fact done in his amended motion) and if successful he would obtain the whole costs of the
426
23
plaintiff's duty to produce the warrant; his right of action accrued on his detention and no evidence was offered by the defendant to repel it. There was a good deal of argument as to whether this rule applied in case as well as trespass: but Best (. J. said it was impossible for the Judge, the warrant not having been produced, to say whether or not the action was commence in proper forin. Then, the warrant being produced, other questions arise, whether it is void or irregular, and whether the Magistrate is liable for excess of jurisdiction or not. Holroyd v. Doncaster ( ) seems to me to lay down the keystone of the law: West P. Small- wood() another cases which were cited, come after in proper sequence, and are not at variance with it. The defendant comes to a Magistrate and asks him to exercise his judg ment; clearly if the Magistrate exceeds his authority the party who laid the complaint is not liable. Therefore I think I was right in assuming Holroyd v. Doncaster ( ) to be good law. Now this still has to be linked on to the facts of this case. Once admit that the action for setting the foreign law in motion will lie, the rest is plain. Castrique v. Behrens ( ) Now at the trial the main point discussed was, whether, the action being for causing the plaintiff to be apprehended under a Justice's warrant, it was incumbent on the plaintiff to produce the warrant: Bayley J. who tried the case held that it was not, and the plaintiff recovered damages. But the defendant moved to enter a non-suit, and the point was fully dealt with by Best C. J. And the broad principle was says it will lie, but that the rules of law applicable to the corresponding action for setting English law in motion must apply. The rule specially referred to was that the plaintiff must show that the proceedings have terminated in his favour, if they are capable of doing so, why should this other rule be excluded? Many reasons may be advanced why it should not. Once admit that this action will lie, and that we must, with all becoming deference, criticise the procedure taken by the Consul.
I say as i said to the jury, that perhaps somewhat unexpectedly, the English Courts, by the large basis of competence on which they act, do provide an effective means for preventing those who are subject to their jurisdiction from committing acts of intolerable injustice, and turning the Treaties of Tientsin into instruments of extortion. I cannot imagine anything more oppressive than for persous whether they have a good case or not, to set their Cónsui in motion, and through him the Chinese authorities, get property seized, and when they are asked what it is all about, fo calmly fold their arms and tell the plaintiff to find out for himself. The law is a just law: and it is primitive in its simplicity. You defendants say you have a right to seize, or the Chinese authorities have a right to seize, on your behalf: produce your war- rant and let us see whether they have acted rightly or not. It may be that with the production of the warrant the case might collapse. But until you do so we cannot tell.
It was said that the plaintiffs by referring to the warrant in their pleadings admitted that there was a warrant, and that this obviated the necessity of production. This is ex- actly what happened la Holroyd v. Doncaster (), because there the plaintiffs' counsel had opened the case as one of arrest on illegal warrant. I am therefore of opinion that my direction to the jury on this point was right, and that the verdict must stand.
The last two points raised in the motion relate to the question of costs, but as I am of opinion that the motion fails on the other grounds raised, they need not be considered.
It may be however advisable for me to state the grounds on which I acted in making the order as to costs.
It was argued that the defendant, having succeeded in getting favourable answers to the 5 questions which were independent of the question of trespass, he was entitled to have the costs of those issues. But they were not issues. The reason why they were left to the jury at all was that if the verdict of trespass was set aside on the ground of mis- direction the findings of the jury on the other questions would remain, and on them the defendant could inove for judgment (as he has in fact done in his amended motion) and if successful lie would obtain the whole costs of the
426
No comments yet.
Private notes are available after approval.