June 7, 1909.]
SUPREME COURT.
Friday, 28th May.
IN ADMIRALTY JURISDICTION. BEFORE THE CHIEF JUSTICE (SIL F. PIGGOTT) WITH LIEUTENANT BECKWITH, R.N.
A COLLISION CASE.
The action against the owners of the steam. ship Holstein for $10. 00 damages for collision with a junk was continued. Hon. r. H. E. Pollock, K.C., instructed by Mr. P.W. Goldring, of Messrs. Goldring Burlow and Morrell ap- peared for the plaintiff, and Mr. M. W. Slade, instructed by Mr. Holborrow, of Messrs. Deacon Looker and Deacon, appeared for the de- fendants.
Heinrich Christiansen, second officer of the Holstein, gave his version of the collision. He said that he saw the junk on the port tack and saw her stern light. On going into the wheel- house he heard the captain signal to the machine room and the engines were stopped At the same time they put the wheel more than three-fourths hard over. They could not do any more with the hand gear. Meanwhile the junk continued on the port tack with the result that the stem of the steamer struck the junk on the after part. The steamer was cauting to port. The wind was N.N.E. He thought the speed of the junk was sailing from four to five miles an hour.
Their own speed until the engines were stopped was ten to eleven knots.
After further evidence and subsequent argu- ment the hearing was closed, judgment being reserved.
Tuesday June, 1st.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
THE MITCHELL DIVORCE SUIT.
T. A. Mitchell brought action against John Lemm claiming $15.000 as damages by reason of the defendant having on the 12th and 13th days October, 1904, and on the 11th and 12th days December, 1904, and on divers other dates before and after the said dates, wrongfully, wickedly and unjustly debauched, and carually knew one Henrietta Maud Mitchell, then being the wife of the plaintiff and bearing his name. Plaintiff also claimed the sum of $14,012.84 as special damages, being the costs and expenses which plaintiff had incurred of and incidental to the divorce proceedings in- stituted by him in the first divisions of the Court of Session, Edinburgh, Scotland, against the said H. M. Mitchell, his wife, in consequence of the defendant's misconduct, and in which divorce proceedings, the improper con- duct of the defendant with the said H. M. Mitchell was alleged and proved to the satis- faction of the Court.
Sir Henry Berkeley. K.C., instructed by Mr. D. V. Steavenson (of Messrs. Deacon, Looker and Deacon), appeared for the plaintiff, while Mr. M. W. Slade instructed by Mr. J. Scott Harston (of Messrs. Ewens and Harston) re- presented the defendant.
CHINA OVERLAND TRADE REPORT.
relief in this action were set out as the plaintiff's ground for relief in the ear- action. The actual acts of misconduct lier alleged in the last action were to be found in the statement of claim coupled with the particulars which were ordered to be given in respect of the allegation in respect of that claim. | All these acts of misconduct, alleged in the present action, were not fresh; therefore, to put the matter in well-known technical words the cause of action in the two actions was the same. In these circumstances he submitted that the very wholesome principles of English law came into play, by which a person was not allowed, when he had been unsuccessful in one action, no matter for what cause, to harrass his opponent by a second action.
Sir Houry Berkeley stated that the words res judicata imported, when used as a defence, that the matter had been adjudicated upon. Unless the question to be re-opened had already been adjudicated upon, it would be a contradic tion in tornis to apply to that matter the words res judicata. What was held when this action was last before the Court was that there was no right to bring the action. The reason for the conclusion at which the Court
arrived was given in his Lordship's judgment. Legislation had since been passed giving the right to bring such an action as the present, unless it could be shown that the subject matter had already been a subject for the determination of the Court. No matter in dispute between the parties had ever been adjudicated upou.
After further argument the hearing was adjonrued until to-day.
Wednesday, 2nd June.
The hearing of the action for criminal cou- versation at the instance of Thomas Alexander Mitchell against John Lemm was continued.
Mr. Slade, for defendant, resumed his argu- ment. He stated that it had been said that this was not a decision upon the merits and therefore it could not act by way of res judicata. It was admitted that if the matter had gone to trial and a verdict had been found, it undoubtedly would operate as res judicata. Supposing the case had gone to trial and a verdict had been given, whether for or against the defendant. the result would have been exactly the same, because this point would have been taken, and in spite of the verdict of the jury if it had been against the defendant, judgment would have been en- tered for him.
His Lordship-How would it have been dismissed?
Mr. Slade-On my motion because the remedy had been taken away.
His Lordship-Would you take it on appeal? Mr. Slade-Not at the trial, I am under no obligation to plead a point of law on my plead- ings. I could have let this matter go to trial, let the plaintiff give the whole of his evidence, and then opened my case and mentioned this point of law as the ground of defence, and allowed the trial to proceed. I should finally have moved after the verdict that judgment be entered for the defendant on the ground that there was no cause of action shown to lie in the plaintiff. That was the meaning of the indis- putable rule of law that a case dismissed on a general demurrer is a bar to any future action on the same cause of action because, on a general demurrer the defendant admits the whole of the facts as alleged by the plaintiff, but says that they do not give the plaintiff any right of relief against him. On that point I was overruled by. your Lordship. You held that the question of jurisdiction did not arise; you did not leave me to make the true point at the trial, but practi- cally corrected my objection in point of law to the true objection, which was that there was no right of action.
Mr. Slade moved that the cause of action in this case should be dismissed because all the questions at issue between the parties had been decided in a previous action. In 1907 the plaintiff commenced an action against the defen dant claiming damages for the adultery which he alleged the defendant had been guilty of with plaintiff's wife. That action came on for trial last year, and it was dismissed on the ground that the right to bring the action had been taken away by certain legislation in the His Lordship-I held that the right of action Colony. In the latter part of last year an Or-which would have existed had been destroyed. dinance was passed which affected that particu-
Mr. Slade The decision was precisely the lar subject, so that now an aggrieved husband
same as it would have been in a case in which had the right to bring an action as to what was damages were claimed, which in law were too called criminal conversation against any person who was alleged to be guilty of adultery with his wife. The plaintiff commenced a fresh action against the defendant for identically the same offence as had been alleged against the defendant in a previous action. All the factsupon which the plaintiff claimed
remote.
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by a reference to the Ordinance passed by the Legislature, in which he contended, that if the Act was aimed expressly at an individual, proper steps should have been taken that there should not be the slightest ambiguity on the face of the Ordinance. If it had been the intention of the Act to hit an individual then an opportunity should have been given to the defendant to object to an Act directed at him personally, which was nothing less than an act of attainder.
His Lordship did not agree that the Act was aimed at one individual. This plaintiff had heen deprived of his rights by a mistake and there might be others.
Mr. Slade held that express words setting aside the effect of the judgment should have been inserted in the ordinance. There would then have been an end of the matter.
His Lordship intimated that he would give a formal judgment on Friday,
Mr. Slade asked if they were to be ready to proceed on Friday.
His Lordship-Yes.
Mr. Slade-Your judgment will be against me?
His Lordship-Yes.
Mr. Slade said he would have to ask for a postponement on Friday as they had been un- able to get into communication with their client. His attorney who looked after his interests had not heard from him for months, and though they had telegraphed all over the world for him, they had not been able to trace him. They were afraid he must be dead or very ill and not able to answer letters or telegraph.
Sir Henry Berkeley said they would have to oppose the application for postponement.
Mr. Slade-Because you want to get the man's property.
Sir Henry-We should oppose it. There must be some consideration—
Mr. Slade-You deserve no consideration for the way you treated us.
Sir Henry-Nor you for the way you treated us. Your client debauched his wife. We cannot consent to the postponement. We have lost one or two witnesses already and we may lose more. The plaintiff, as you know, is a seafaring man and is only here occasionally. He is coming here by special arrangement to-morrow in order to be present on Friday.
His Lordship suggested that the parties come to an understanding.
Mr. lade-If there was any believing that the man
reason for was wilfully staying away, I should not hesitate to bring it on in his absence.
Sir Henry-He went away in December. We believe he went away to avoid process.
We cannot consent to a postponement,
Mr. Slade months.
The man has not been here for
Sir Henry-He ought to have been here. Mr. Slade-Supposing the man is dead? Sir Henry-Well you cannot sue a dead man. Mr. Slade They arrested his property which was released afterwards and proceeded by way of foreign attachments, furiously opposing his being allowed to put in any defence. He has not shown the slightest unwillingness to face and fight out this case. He never left until months after the decision in the previons case. Although he knew of this Ordinance he made no attempt to dispose of his property.
Sir Henry-He went away before the Ordin- ance was passed.
Mr. Slade-But not before it was published. His Lordship Of course, the case cannot stand over indefinitely.
Mr. Slade-We only ask for a little time in order to find out where our man is.
Sir Henry - The case was to have come on in March and was postponed at the request of the solicitor who wished to have his counsel present.
His Lordship-You cannot expect judgment to be given in the man's absence. On the other hand the defendant cannot expect the trial to be indefinitely postponed. Cannot you come to an arrangement?
Mr. lade-No, it is hopeless.
Sir Henry-What 18 the date of the postponement-sine die?
His Lordship-I should prefer you to settle it. Mr. Slade They are implacable.
Sir Henry-This is the first we have heard
Mr. Slade, proceeding, said that bad laws made hard cases all the world over.
There was danger of bad law being made to remedy hard cases. They were there to administer the law of England. He went on to deal with limitation cases in support of his argument, and concluded from our man.
of it.
Mr. Slade-We were always hoping to hear.
No comments yet.
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