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168
Monday, August 31st.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.
THE ALLEGED TRESPASS ACTION.
Their Lordships the Chief Justice (Sir F. Piggott) and the acting Paisne Judge (Mr. H. | H. J. Gomperts) sat to bear two motions, one on behalf of the plaintiffs and the other on behalf of the defendants in the recent jury action in which Beater Brookelmann and Company were sued by a Chinese firm for alleged wrongful seisure of property belonging to them. Mr. M. W. Slade, instructed by Mr. Dixon, of Messrs. Hastings, and Hastings, appeared for the plaintiffs and Hon. Mr. H. B. Pollock, K.C., and Sir Henry Berkeley, K.C., instruoted by Mr. Lang, of Messrs. Deacon, Looker and Deacon, appeared for the defendants.
Mr. Slade, on behalf of the plaintiffs, moved the first motion which asked the Court for an order that the verdict of the jury on the first, second, third, fourth, and fifth questions sub mitted to them be set aside on the grounds that the said verdict was contrary to the evidence, against the weight of evidence, and perverse in that the majority of the jury were influenced by a desire not to allow the plaintiffs to have the benefit of a judgment of this honourable Court because in the accounts of the Kwong Hing Cheung firm the identity of the partners was concealed by the use of "tong'
Dames.
Mr. Pollock raised several objections. He contended that a motion pure and simple to set aside the verdict of a jury on questions sub- mitted to them was not known in law in Hong. kong. The motion was irregular inasmuch as it claimed substantive relief in one direction, namely in asking that the verdict be set aside upon those five points.
The Chief Justice asked if it were a motion for a new trial would it be in time.
Mr. Pollock gave two grounds on which it would be out of time.
Bir Henry Berkeley supplemented Mr. Pollock's argument.
Mr. Blade argued that motions to be set aside without application for a new trial were allowed at Home.
The hearing was adjourned.
Mr. Pollock, for the defendants, was to have moved the Court to set aside the judgment entered for the plaintiffs with costs and to enter judgment with costs for the defendants on the following grounds among others:
(1) That the judge should have non-suited the plaintiffs at the trial: (a) because the alleged wrongs were committed beyond the territorial jurisdiction of the Supreme Court of Hongkong, and the plaintiffs failed to prove that such alleged wrongs were actionable by the law of the country within whose jurisdiction the acts, constituting the alleged wrongs were committed (b) because the alleged trespass to immoveables is stated in the pleadings of the plaintiffs to have been committed to immoveable property situated within China beyond the jurisdiction of the Supreme Court of Hongkong: (c) because the sot constituting the alleged trespass to im moveables was the seisure of moveable property by the Chinese authorities under a warrant issued by the said Chinese authorities at the request of the German Consul General at Canton, soling under the Treaty of Tientsin 1861 between ermany and Chins, for and on behalf of the defendants for the
purpose of exacting payment by the plaintiffs to the defen. dants of moneys claimed by the defendants to be due to them by the plaintiffs, and it was not competent for the judge to assume that the issuing of the said warrant by the Chinese authorities was not a judicial sot: (d) because it was not competent for the judge to assume that such warrant, whether issued judicially or other. wise was either irregular or invalid by the law of China: (6) because the alleged libel was not set out in the statement of claim: (f) because the occasion on which the communication constituting the alleged libel and the alleged false representations was made, was an absolute- ly privileged occasion; (g) because the plaintiffs gave no evidence of express malios on the part of the defendants and in the absence of such
evidence no notion would lie in the Supreme Court of Hongkong against the defend nts for
THE HONGKONG WEEKLY FRESS AND
[September 5, 1908
setting the Chinese authorities in motion under | jury that they were discharged and would be the aforesaid Treaty of Tientsin.
(2) That the judge was wrong in directing | the jury that in consequence of the defendants not having produced the warrant of the Chinese authorities under which the seisure of the pro- perty of the plaintiffs had been made, they must find a verdict for the plaintiffs with damages for trespass to the goods of the plaintiffs:-(a) because it was not necessary for the defendants to prodnos such warrant at the trial inasmuch as (1) the fact that the seisure had been made under the warrant of the Chinese authorities was admitted on the pleadings and the statement of claim contained no allegation impeaching the validity or regularity of such warrant; and (2) it was not competent for the judge to inquire into the validity of the warrant of the said Chinese authorities inasmuch as it was issued and enforced beyond the jurisdiction of the Supreme Court of Hongkong: (b) because the plaintiffs produced no evidence to show that the Baid warrant was either invalid or irregular by the law of Hongkong: (o) because the plain- tiffs produced no evidence to show that the said warrant was invalid or irregular by the law of China.
(3) That inasmuch as the jury found verdict for the defendants on all the issues of facts left to them and only found for the plaintiffs on the one issue of trespass to goods because they were directed to do so, the judge was wrong in refusing the application of the defendants for the costs of those issues which the jury had found in their favour.
(4) That the grounds upon which such refusal was based, namely, that the direction to find for the plaintiffs on the trespass issue terminated the case, and that the issues submitted there- after were irrelevant, and therefore unnecessary, did not constitute "good cause for depriving defendants of the costs of such issues.
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Tuesday, September 1st.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.
THE ALLEGED TRESPASS ACTION. Their Lordships the Chief Justice (Sir F. Piggott) and the acting Paisne Judge (Mr. H. H. J. Gompertz) sat to hear two motions, one on behalf of the plaintiffs and the other on behalf of the defendants in the recent jury action in which Reuter Brockelmann and Com. pany were sued by a Chinese firm for alleged wrongful seisure of property belonging to them. Mr. M. W. Slade, instructed by Mr. Dizon, of Messrs. Hastings, and Hastings, appeared for the plaintiffs and Hon. Mr. B. Pollock, K.C., and Sir Henry Berkeley, K C., instructed by Mr. Lang, of Messrs. Descod, Looker and Desoon, appeared for the defendants.
Mr. Slade said he thought it would be better before going into the detailed facts of the case, to refer to the rider, or addition (or whatever the correct phraseology was) by the jury to their verdict, and to show their Lordships how the jury had obviously disregarded the evidence so as to give effect to their desire to inflict a penalty on Chinese who acted in the perfectly lawful manner of carrying on their business under "tong" names.
The Chief Justice-My attention has been drawn to notes taken by the shorthand writer, which do not exactly correspond with what actually happened. I shall alter that word "rider" into "remarks," and put it at the end. Mr, Slade-Perhaps I'd better narrate what occurred. Your Lordship finished your summing up about one o'clock. The Court then adjourned for tifin, and the jury return. ed to Court to consider their verdict after the tiffin adjournment. They gate the answers as recorded in the shorthand writer's notes. Then a discussion arose as to costs and various matters. When that had ended, the foreman of the jury hauded in A
document already typewritten.
Mr. Pollook-I cannot assent to all you are saying.
Mr. Slade-Then will you odrrect me? will be only too glad.
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Mr. Pollock-What then happened was that your Lordship stated you reserved the question of costs. After that your Lordship informed the
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exempted from attending for a period of two years." Then, after your Lordship had formally discharged the jury, the foreman read from U typewritten paper.
The Chief Justibs-And then Mr. Blade moved that the reading should be entered on the record.
Mr. Pollook-Your Lordship will see by looking at the original that what the jury had in their mind was that the law ought to be altered.
The Chief Justice-That, of course, is the argument.
Mr. Pollock-On behalf of the defendants I think I should formally take the point that this paper, to use a neutral term, does not in the oiron mstances really form part of the record at all. It is obviously not part of the verdict, and my friend is obviously going to found some argument upon it.
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Mr. Blade-I am going to show that the jury carried out their own recommendations.
Mr. Pollook-This paper, read by the jury after they were discharged by the Court, did not form part of the verdict of the jury, and should not form part of the record,
The Paisne Judge-You don't mean, Mr. Pollock, that we are not entitled to look at this?
Mr. Pollock-Not as forming part of the record. It has no more effect than if the jurors had afterwards written a letter to the Registrar or the newspapers to a similar effect.
The Chief Justice-That, of course, we must consider. But so far as the formal point is concerned, we must look at it now as it is on the record.
Mr. Pollock - Your Lordships can consider whether it ought to be on the record. It seems to me a point that will have to be decided now.
The Chief Justice-We must be quite regular. Unless it is in your notice of motion that this is an irregularity it must form part of the appeal.
Mr. Pollock-We cannot appeal from some. thing we contend ought not to be on the re- cord at all. If we included it in our notion of motion we would practically admit that it is on the reard.
The Chief Jastics—It is on the record sa a faot, and there should be a motion to remove it. Mr. Slade-1 formally moved that it should be put on the record,
Mr. Pollook-It was not a regular motion. The hief Justice—It was a motion in the course of the trial.
The Paisne Judge-Supposing the jury banded in a paper next day, wouldn't the Court be entitled to consider it?
Mr. Pollook-My point is that the jury were We contand discharged before they made it. that it is neither a rider nor an addition to the verdiet.
The Chief Justice-We don't say it is part of the verdict. We say it is technically on the record, and your only point now is that it should not be on the record. There should be a formal motion to remove it,
Mr. Pollock-Do your Lordships hold that we should formally move? It means filing a notice of motion.
The Puisne Judge-Supposing Mr. Slade had not moved that motion, a id the paper had never
been on the record, couldn't it be referred to in argument?
Mr. Pollock-No.
The Puisne Judge-Supposing they had written to the paper next day and signed it?
Mr. Pollook-It could not be referred to because it was not part of the verdiet; no more than if the jurors held a public meeting as the Hongkong Club or the City Hall, and said it was high time this businem should be stopped.
The Chief Justice—I cannot assent to that! The Puinne Judge-Supposing the jury had done that, couldn't it be referred to as a question of showing animas?
Mr. Pollock-I have no authority on that point. There may be a broad distinction between physical acts and what the jury said. For instance, an affidavit cannot be filed by a juror with regard to his verdiet. The matter really resolves itself into this: Can this be considered. sa part of the verdict? Whether it must be considered as being technically on the record or file, or not, it cannot be considered by the Court as material for thair consideration,~ kawi?:
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