December 20, 1909.]
child the woman's husband, the doctor's wife and several Chinese assistants were present. Shortly after the doctor left the ward he was summoned back, and found the woman dying, As soon as she was dead the husband was informed, and was asked to make preparations to bury his wife. But he would do nothing, so the hospital at its own expense had the body placed in s coffin for the purpose of burial. Before the woman was coffined up Dr. Vortisch made her husband, who was blind, put his hand over his wife's body to satisfy himself that no operation had been performed
The woman was properly buried in a Chinese cemetery, where Chinese were buried by their own people, and the event then practically passed out of the minds of people in Ho Yuen. They thought no more about it until in due course, this venom- ous article reached them. After this the people did come out and look along the creek to see whether they could find the body hidden, and the jurors would not be surprised to hear that the flow of subscriptions from Chinese sources stopped absolutely. The members of the Mission were held in contempt, and the Mission itself was despised and condemned in consequence of this article, Ho Yuen was some 150 miles distant from Canton by tae East river. When the President of the Mission here saw the article he called on the people connected with the paper and told them that they must do what they could to minimise its evil effect. The next stop taken was to try to come to terms with the newspaper, and for that purpose a meeting was held before the German Consul, at which representatives of both parties were present. It was suggested that if the defendants would pay $4,000, put in advertisements for a period of time and a complete apology, no further action would be taken. The defendants refused to apologise and to pay the very moderate sum asked, but made an offer which was inadequate. It was now for the jury to say what the defendants ought to offer, and what the plaintiffs ought to receive for this venomous story which had been set on foot without the slightest justification.
His Lordship-I see your are suing in your corporate capacity, Mr Slade ?
Mr. Slade-Yes, it is an injury to the Mission at large.
Evidence was then taken.
With regard to a question which arose as to apology,
Mr. Slade referred his Lordship to section 4 of the Defamation and Libel Ordinance, of
1887.
His Lordship-They have got their Common Law right by apology and pleadings.
Mr. Slade-I could not strike it out of their pleadings, but it does not operate as a defence.
His Lordship-It operates in mitigation of damages
:
Mr. Slade-I quite agree with your Lordship's
view there.
The foreman of the jury asked what the annual subscriptions to the Mission from Chinese sources were for the years 1907, 1908 and 1909.
His Lordship-I will ave the witness recalled to answer.
¡
Mr. Slade The next witness called. can answer. Our evidence will be that on the subscriptions to these hospitals there has been a dead loss
of $4,00. We have not got figures of the general subscriptions.
Sir Henry Berkeley, referring to the pre- vious questions, said he relied on the case of Boosey against Wood, reported in section 34 of the Law Journal. There were two ways of taking advantage of what could be called apclogy: the statutory defence that
you apologised and paid money into Court, or it was possible to plead apology accepted, which was tantamount to accord and satisfaction. There was a valuable consideration in the ex- pense of publication.
His Lordship-It would be more convenient to argue this matter at the close of the plaintiffs'
case.
Mr. Slade-I would point out that accord and satisfaction is not pleaded.
Sir Henry Berkeley-Yes, it is. Mr. Slade-No, it isn't.
Sir Henry Berkeley-We'll deal with it when the time comes.
His Lordship-As I understand it, they are going to plead accord and satisfaction.
CHINA OVERLAND TRADE REPORT.
Mr. Slade-If they have not pleaded it, they cannot set it up now.
V
Sir Henry Berkeley-I have. Mr. Slade-Well, quote a sentence. Sir Henry Berkeley-When the time comes The hearing was adjourned.
Tuesday, December 14th.
The last witness called in support of plaintiff's was giving evidence with reference to subscriptions when
cashe
Sir Henry Berkeley submitted that the loss of subscriptions, if it really occurred, was special damage which should have been laid.
His Lordship-You did not take that point yesterday, Sir Henry.
It is
Mr. Slade-It is not special damage. evidence of general damage.
His Lordship-Loss of subscriptions would be general damage:
Mr. Slade-I presume my general list dimin- ished in consequence of this article. I cannot prove it, but there is a strong inference. The law is plain that I may give general evidence of damage.
His Lordship-Loss of specific subscriptions certainly comes within the category of special damages.
531
Sir Henry Berkeley said it had been held in the
case of the Mayor of Manchester a ainst Williams that a corporation could not sue in connection with a charge of corruption. Counsel quoted the case, and contended that if his friend's contention was right the mayor and corporation could have brought that action, but the ratio decidendi there was that the corporation as a whole could not be guilty of corrupt practices. His next point was that even supposing this Corporation -the President in Hongkong of the Basi Mission-could bring an action in respect of any such charge as this in relation to its property, the hospital at Ho Yuen was not the property of the President in Hongkong of the Basil Mission.
His Lordship-It is the property of the Corporation.
Sir Henry Berkeley-No, it is the property of the Mission in Basil. The evidence is that the people in Ho Yuen are under the control and management of the Mission in Basil; that the money for completing the hospital was suppli d by the Mission in Basil; and that Dr.
Vöritsch has in time to come to account to the Mission in Basil for money he collects by way of subscriptions.
His Lordship-As regards the point that the Mr. Slade I don't prove loss of special sub-property is not the property of the Corporation, scriptions.
I should like to hear what Mr. Sautter says on that.
Sir Henry Berkeley--My objection is con- fined to specific subscriptions, so you can go on. His Lordship--I think the jury, in any event, in assessing damages, if they are going to give damages, will take that into consideration.
Mr. Slade Your Lordship will see that my object is to prove that this article had an effect detrimental to the Mission a long way away from Ho Yuen,
After Dr. Vortisch had been recalled to give further evidence regarding hospital charges, the case for the plaintiff closed,
Sir Henry Berkeley, in opening the defence, submitted that the plaintiff had disclosed no case that his Lordship could leave to the jury, and that under the powers in sections 174-175 of the Code of Civil Procedure his Lordship might and should dismiss the action here and now. In this case it was his Lordship's duty
case withdraw. the from the jury and dismiss it. because the plaintiff, the President in Hongkong (the word "in was important) of the Basil Mission, namely, Mr Vömel, had no proved that any libel had been published of and concerning him.
to
two
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Sir Henry Berkeley-Mr. Sautter stated that he got an advance from the head Mission at Basil, and that he hoped in time to collect sub- seriptions from the pious and charitable people to refund that sum.
His Lordship-As regards this point, suppos ing it is a branch of the Basil Mission Society, do you contend that the Society here would not be entitled to sue in respect of it?
Sir Henry Berkeley-It would not. His Lordship-Apart from the other ques- › tion altogether?
Sir Henry Berkeley stated that even if this was a libel in respect of which the hospital could sue, this hospital had nothing whatever to do with Mr. Vömel, and it was given in evidence that fees collected for operations were accounted for to the Basil Mission in Switzerland. Another point quite separate and independent was that the plaintiff was not entitled to sne; he was barred of his action by having accepted apology, as far as he was con- cerned, from the defendants.
His Lordship-Your pleading does amount to a plea of accord and satisfaction.
not
Mr. Slade The plaintiff is "at," not " him.” Sir Henry Berkeley said he would sh w that the plaintiff was him." There was no Sir Henry Berkeley-I submit it does. It is libel proved against the Corporation. Such on me, in setting up the apology as a bar, to libel, as he would admit for the sake show that the parties intended there should of argument had been proved, was against be an end of all litigation in respect of this
individuals, Dr. Vortisch and Mr. particular libel. Sautter, who had had what amounted to an imputation of murder in its gravest view, or in the least harmful view an imputation of malpractice in the performance of their duties at the hospital charged against them personally, Counsel submitted that the libel did not refer to the plaintiff, and therefore was no personal right of action in him.
His Lordship-When yon say the plaintiff you mean the plaintiff Corporation?
Sir Henry Berkeley said that that was so. The article did not refer to the plaintiff corpora tion, and there was no personal right of action in him or it. A corporation had the right of action in respect of a libel to its property, but there was no libel here against the corporation in respect of its property. The imputation here was to persons. It had been laid down that a corpora- tion could not sue for libel or commit murder. The charge here, if anything at all, was a charge of assault upon this woman by the two missionaries at Ho Yuen, and indeed it might be pushed to a charge of murder against Dr. Vortisch. The Corporation could hot commit an assault, as it was only an abstract body and had no personality, and it could not complain of being referred to as "it."
Mr. Slade-It cannot be guilty of malice. Sir Henry Berkeley- That has been held to be possible, but it is not the poin here. It has been held that an action for libel will not be at the suit of a corporation in respect of such charges as assault.
r. Slade-I beg your pardon, there is no such case.
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His Lordship-As regards the action of Mr. Vömel and what took place, that may be a matter of mitigation of damages on which I But that is not a bar to shall direct the jury. the action.
Sir Henry Berkeley-It is a bar if you can regard it as being accord and satisfaction.
His Lordship-Then your pleading must show it.
ì
Sir Henry Berkeley-I would ask you to construe the pleading as showing it, because, after publishing the libel, an explanatory article submitted by the plaintiff was accepted.
His Lordship-You have to show it on the face of your pleadings.
Sir Henry Berkeley-I agree to that, and submit that paragraph 11 is sufficiently explicit.
His Lordship-There should have been a specific allegation to the effect that it had been accepted in discharge of all causes and rights of action.
Sir Henry Berkeley-Then I will withdraw the point.
Proceeding to deal with the first point, Sir Henry stated that the plaintiff had admitted in his evidence that the words did not refer to him, and upon the face of them they did not refer to Phim either as Mr. Vömel or as President in Hongkong. But it was incumbent on the plaintiff to show two things: he had to show that the libel applied to a particular person, either a person or corporation entitled to sue, and that that particular person was the plaintiff. There was no evidence that the defendant was aware of the existence, of this plaintiff. Counsel
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