Decisions of the Superior Courts of New South Wales, 1788-1899
R v Mitchell (No 2)  NSWKR 4;  NSWSupC 30
trespass to goods - detinue - arrest of ship - condemnation of ship - Admiralty - East India Company's monopoly - prize vessel - the Almorah - conflict of laws - election
Supreme Court of New South Wales
Forbes C.J., 1 August 1825
Source: Australian, 4 August 1825
The King v. Mitchell.
A Rule having been obtained in this case, to shew cause why the proceedings should not be stayed till the issue of the suit on behalf of Captain Mitchell for a Condemnation of the Almorah and her Cargo at Calcutta was known, the Attorney General, [1 ] this day, shewed Cause against the Rule.
The following Affidavit disclosed the grounds on which the Counsel of Captain Mitchell obtained the Rule, and now sought to make it absolute
"Charles Mitchel, Esquire, Master and Commander of His Majesty's Sloop of War the Slaney, maketh oath and saith, that a writ of trespass hath been sued out and a declaration filed against this deponent in this Honorable Court in the name of His Majesty, by the Attorney General of this Colony, for seizing and taking away with force and arms, divers goods and chattels, to wit, two hundred and eighty-eight baskets of sugar, four hundred and eight-one mats of wheat, five thousand six hundred and twenty bags of rice, three hundred quarter chests of tea, and fifty-three chests of specie, the alleged property of his said Majesty, of great value, to wit, of the value of thirty thousand pounds; and also for keeping and detaining the said goods and chattels to the damage, as is alleged, of his said Majesty of sixty thousand pounds. And this deponent saith, that the said goods and chattels arrived in this port on board of a certain ship or vessel called the Almorah, on or about the seventeenth day of the month of February, now last past; and that the said ship or vessel having the said three hundred chests of tea on board, without the special leave and licence in writing of the United Company of Merchants of England, trading to the East Indies, or a special leave and licence in writing, under their authority for that purpose, was seized by order of this deponent, on the opinion of Counsel, that the said vessel, together with her tackle, apparel, furniture, and cargo, was for the want of the said licence, subjected to seizure and condemnation. And this deponent further says, that after the said seizure it was his intention to institute the necessary proceedings in this Honorable Court, for the condemnation of the said ship or vessel, and of the tackle, apparel, furniture, and cargo thereof, and that he gave his Counsel instructions accordingly, but that in consequence of divers threats which proceeded from the said Attorney General, and which led this deponent to conclude that it was the said Attorney General's intention to dispossess this deponent of the said goods and chattels, by forcible means, and in consequence also of an opinion which the said Attorney General gave to this deponent, that this Honorable Court had no jurisdiction over the subject matter of the said seizure, this deponent was induced to send, under the command of the First Lieutenant of his said Majesty's said sloop of war, the said ship or vessel, together with the said goods and chattels, so claimed by the said Attorney General on behalf of his said Majesty, to Calcutta, in the East Indies, where this deponent has been informed by his Counsel that there is a Court of competent jurisdiction to determine the validity of the said seizure; and this deponent further says, that he has given Bathurst Matthews, the said First Lieutenant of his said Majesty's said sloop of war, positive directions to take, on his arrival at Calcutta aforesaid, immediate proceedings in the Court there, for the condemnation of the said vessel, together with her tackle, apparel, furniture, and cargo. And that one James Tod Goodsir, a Deputy Assistant Commissary General on the staff of the said Colony, has been despatched, as this deponent has heard, and believes, to Calcutta aforesaid, by William Wemyss, Esquire, Deputy Commissary General of the said Colony, for the purpose, among other things, of watching over his said Majesty's interest in the said goods and chattels, and of claiming the same in the event of the said Court of Calcutta, decreeing that the said goods and chattels are not liable to forfeiture for the cause aforesaid. And this deponent further saith, that in the proceedings to be had by orders of this deponent on the arrival of the said ship or vessel at Calcutta, in the said court there, the right of this deponent so to seize, take away, keep and detain, the said alleged goods and chattels of his said Majesty, must necessarily be tried and determined, and that the said intended proceedings will involve the same cause of action which the said Attorney General is now attempting to try in this Honorable Court, contrary to his opinion so to this deponent given as aforesaid."
The Attorney General had put on the files of the Court the following Certificate, from himself, in reply to the Affidavit -
"I hereby certify, that I did not at any time threaten to dispossess by forcible means the said Charles Mitchell of the goods, chattels, and property, belonging to the Crown, on board the ship Almorah, and the subjects of the said action; and I further certify, that I did not give my opinion to the said Charles Mitchell, with regard to the said action, but in conversation with his legal advisers I expressed an opinion that this Court had not jurisdiction to try forfeitures under the statute of the 33d year of the reign of his late Majesty George III. c. 52. section 140. and I refused to waive the objection, inasmuch as I thought that the consent of parties cannot give jurisdiction to courts; but I certify, that I did express to the legal advisers of the said defendant a disposition to waive forms as much as possible, in order to take the opinion of the Court on the point of jurisdiction; and I further certify, that I entered into a negotiation with the legal advisers of the said defendant for the delivering of the said seized cargo to the proper officers of the Crown in this Colony; and that the said cargo was secretly prepared for sea, pending the negotiation, and sent from this Colony, although an offer was made to the said defendant on the part of his Excellency the Governor to deposit the value of the said cargo in treasury bills, in the hands of the Colonial Treasurer, to abide the decision of any competent Court of Law.
Sydney, July 30, 1825.(Signed)S. Bannister."
The Attorney General then contended for the reasons stated in his certificate, and on other grounds that the Rule should be discharged.
Dr. Wardell appeared in support of the Rule, and contended that it ought to be made absolute first, because the certificate of the Attorney General ought not to be received at all, as he had no right, by virtue of his office, to file an instrument of that description in the present case; secondly, because the material matters stated in the certificate were not true; and thirdly, on the authority of cases which he cited.
Among other things adduced to prove that the certificate set forth statements which were unfounded, the learned Counsel read the following letter, under the Attorney General's own hand:
"Sir,Sydney, February 22, 1825.
"Being of opinion that the commodities specified in my letter to you of yesterday, belong to the Crown, and that you have seized them illegally - and being further of opinion, that whatever doubts there may be on these two points, we have not in New South Wales any tribunal by which a case of this sort can be tried, I have to demand compensation for the injury sustained by the Crown in your seizing and detaining the commodities to which I refer; holding you still responsible for future damage thereto.
"I have the honor to be, Sir,
Your obedient servant,
"To Captain Mitchell, R.N.S. Bannister,
H.M.S. Slany, Port Jackson.Attorney General."
Mr. Wentworth also addressed the Court at considerable length in support of the Rule for staying proceedings; and the Chief Justice then delivered the decision of the Court in the following terms:----[2 ]
From the statement presented to the Court it appeared that in this case an action of trespass had been brought by the Attorney-General in the name of His Majesty, against Captain Mitchell, for divers good and chattels alleged to have been the property of his Majesty, and to have been wrongfully seized and taken away by Captain Mitchell. It was undoubtedly competent to the Attorney-General to do as he had done to waive the prerogative remedy, and to institute, on the part of his Majesty, this ordinary form of action which in a similar case would have been open to all his Majesty's subjects. This was conceded by the learned Counsel on the other side. To this form of action, then, about the propriety of which there was no question, there might have been either a plea of the general issue or a plea of justification; so as to have met the merits of the case. It had been thought expedient, however, instead of this to attempt the summary mode of proceeding now before the Court, --- resting it on an affidavit of Captain Mitchell, containing a wide statement of facts, some of which were met by a certificate from the Attorney-General. He should here waive the consideration how far this certificate was admissible, by way of answer to such an affidavit; because he conceived that the case might be disposed of without any reference whatever to this document. Upon the whole case as presented by the affidavit of the defendant, two questions arose; 1st, the great question of jurisdiction; 2dly, the propriety of this summary mode of raising that question. Was this a form of proceeding for trying that question? It had been truly stated by Counsel for Captain Mitchell, that causes of this sort had been of rare occurrence; and that no precedent of a case altogether similar to the present, was to be found in the books. It was clear from the authorities cited by the learned Counsel in support of this rule, that where two causes are depending for the same right of action, either in the same or in different courts of concurrent jurisdiction, the plaintiff will be driven to his election.[3 ] He had in his recollection a case from Pere Williams, where the court had not interfered to stay proceedings in England, because an action for the same cause was going on in Ireland. The case relied on in Tidd, 544, was a case where there being at the same time two actions of ejectment instituted by the same plaintiff against the same defendant, for the recovery of the same premises; one was stayed till the determination of the other. In all these cases, however, the same parties were the litigants, and therefore all these cases might be resolved upon the principle of compelling an election - a principle the equity of which could not be disputed. The case now before Court, however, was very different. Here the same parties were not plaintiff and defendant; but on the contrary, the party, who was plaintiff in this Court, was defendant in the Court in Calcutta, notwithstanding that the same identical right would possibly be disposed of in both Courts. He could not recollect an application precisely in point with this, on a mere suggestion that the same cause was going on at Calcutta. It might, and probably would be, that the same facts would arise on both trials; but how could he know this, or decide by anticipation on the merits of those facts? He had been attracted particularly by the argument of the learned Counsel, in support of this rule, which went to shew the impossibility that the Court in the present state of ignorance with regard to the proceedings at Calcutta, and to the result of those proceedings, could arrive at a safe conclusion; and this argument might be a good ground hereafter, for suspending the trial until this Court could be put in perfect possession of the facts connected with this action, which may have occurred in the Court of that Country. Upon the whole of this question then, a question certainly of great nicety and novelty, it did appear to him that this summary application for a stay of proceedings at this stage of the cause could not be granted. This it would be recollected was a cause of very great importance. It involved immense property; and he thought that the parties ought to have the right of appeal to a higher tribunal; from which they would be debarred if this application were granted. He should therefore discharge this rule. - Rule discharged accordingly.[4 ]
[1 ] Saxe Bannister. For other cases concerning the Almorah, see R. v. Howe, April 1825; R. v. Mitchell (No. 1), April 1825; Mitchell v. Howe, October 1825. The facts are summarised in footnote 1 of R. v. Mitchell (No. 1), April 1825. Mitchell was arrested in March 1825 at the suit of the King, for the sum of £30,000. On the next day, he had the Deputy Commissary General, Wemyss, and the Deputy Assistant Commissary General, Clements, arrested for £70,000. After a preliminary hearing of these civil actions, all parties were discharged from the custody of the sheriff on common appearances: Sydney Gazette, 10 March 1825. It appears that the action against Wemyss and Clements was settled (see also Sydney Gazette, 17 March 1825). On 25 May 1825, there was also a preliminary hearing of an action by Mitchell against a magistrate, D'Arcy Wentworth: see Sydney Gazette, 2 June 1825. On this case, see also Sydney Gazette, 24 February, and 3 March 1825, and 1 March 1826.
This trial was also reported by the Gazette on 4 August 1825. It summarised the Attorney General's outline of the case, who said that this was an action for trespass to the goods seized by Mitchell when he took over the Almorah and sent it to Calcutta. Mitchell's counsel argued that the Supreme Court lacked jurisdiction, and that the question was pending before another court (in Calcutta). There was no necessary oppression in the action being before two courts, argued the Attorney General. The Sydney Gazette also summarised the arguments of Dr Wardell and Mr Wentworth.
[2 ] The Sydney Gazette 4 August 1825 gave what it purported to be a literal transcription of the words of the Chief Justice. It was, however, a much shorter version of the judgment than that given in the Australian.
[3 ] Forbes C.J. was quoted by the Sydney Gazette, 4 August 1825 as saying here: ``I take the great ruling principle of applications to the Court to stay proceedings to be this; where it is made clear that the plaintiff is seeking, in two different Courts, for the same cause, the Court will put him on his election which to try in; but where there are two matters pending, one in equity, and one in law, the Court will not interfere."
[4 ] Forbes C.J. thus ruled that the civil action against Captain Mitchell could proceed despite the simultaneous action in Calcutta. For the reaction of the Australian to this, see its issue of 4 August 1825. When the Almorah arrived at Madras, she was ordered on to Calcutta for final decision: Sydney Gazette, 13 October 1825. James Stephen, of the Colonial Office in London, argued that the seizure was illegal, because the whole of the property was that of the crown, and the crown was not subject to forfeiture. Other crown lawyers, disagreed, saying that the vessel was liable to seizure, but that the part of the cargo which was the property of the crown was not liable to seizure. The Court of Vice-Admiralty in Calcutta agreed with Stephen: it said that the seizure of the Almorah was illegal. See footnote 1 to R. v. Mitchell (No. 1), April 1825.