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Colonial Cases

Reynolds v. Medhurst, 1867

[bill of sale - enforcement of judgments]

Reynolds v. Medhurst

Supreme Court of China and Japan
26 April 1867
Source: The North-China Herald, 27 April 1867




April 26.

Before Sir E. HORNBY.

And Messrs. Daly, Campbell, Evans, Figges and Levy, Jury.


A Report of this case appeared in our issue of the 17th instant.  The suit, it will be remembered, was instituted to recover Tls. 6,240, monies declared to have been misapplied by the defendant - when H.B.M. Consul at Shanghai - on the ground that he had received them for the plaintiff's use.  Judgment has since been delivered by the Chief Judge, as follows:-

This is an action brought by the Plaintiff against the Defendant to recover as damages the sum of Tls. 6, 240, under the following circumstances.  It appears that on the 30th Dec., one William Wynter, then carrying on business at Shanghai under the style or firm of Wynter & Co. was the proprietor of two Newspapers known at the "Shanghai Times," and the "Shanghai Daily News," and that to secure a sum of 4,000 taels he gave a bill of sale to Mr. Reynolds which purported to convey to the Plaintiff the printing presses, types, fixtures etc., of the two newspapers as described in a schedule annexed to the bill itself.  This bill of sale was given as a collateral security for payment of a promissory note for 4,000 taels of even date.  It appears further that in the month of March 1862, Wynter absconded from Shanghai, leaving liabilities and debts to a considerable extent unpaid and unsatisfied.  That during this period and at the date of the occurrences hereafter mentioned, the Defendant was acting as and holding the office of Her Britannic Majesty's Consul at Shanghai, having been duly and properly appointed in that behalf.

That in the month of April in the same year the firm of Wynter & Co., was sued by one Silverthorne on H.B.M.'s Consular Court for wages due to him by the firm, and judgment was given in his favour; that other suits were also commenced against the firm and amongst them that of the present plaintiff, and that in his case as in that of the others, judgment was given against Wynter & Co. for the amount claimed (viz. in the plaintiff's case the sum of taels 4,000.)

That the defendant in pursuance of the Judgment so obtained as before mentioned, caused the entire property in question to be appraised and valued with a view to its realisation for the benefit of the judgment creditors, and that ultimately thr property was sold under the judgment, and the proceeds paid into Court and applied in satisfaction of all the judgments except that obtained by the plaintiff.

The exact circumstances under which the sale actually took place is not very satisfactorily established by the evidence.  It is clear that so far as a certain Dr. Legge is concerned, he consent to it; but I do not see how this is material as against the Plaintiff, who appears always to have consistently persisted in his right to have the goods sold to satisfy his judgment.  It is, however, in evidence that before the sale of the property the Defendant received a notice from Dr. Legge claiming under a Bill of the 10th August 1861, and cautioning the Defendant not to part with any property or any proceeds realised therefrom, and that the Defendant on consequence of the advice of H.B.M.'s Attorney General at Hongkong, remitted to the said Attorney General on the 23rd day of September 1862, a bill or cheque for the purpose of paying off and discharging the amount claimed by Dr. Legge under the alleged bill of sale of 10th August 1861.

On the 17th day of September the Defendant received from the Plaintiff a notice not to part with the proceeds of the execution which he claimed in his character of execution creditor.  No suit appears to have been commenced by Dr. Legge, nor was any judgment ever given by the Defendant in respect thereof, neither was the original bill of sale of the 19th of August ever produced, or any proof given of its due execution, and there is not note or record of any bill of sale of Dr. Legg's in the Consular books or any record of any case heard and determined in respect thereof.

It is not pretended but that throughout the whole of the transactions the Defendant acted bona fide and without malice, and in the belief that he was executing and not exceeding the powers and authority vested in him by his office and by virtue of the Order in Council of the 15th June 1853 then in force.

These are the principal facts in the case before me.

The main question then that I have to consider is whether, under the circumstances above detailed, Mr. Consul Medhurst is liable to Mr. Reynolds for the sum which he handed over to Dr. Legge? Whether he is so liable on an action of trespass on the case, in trover or for money had and received, is immaterial; for under the rules of this Court no statement of any particular form of action is necessary, so long as the petition is sufficiently full and explicit for the defendant to ascertain from it clearly in respect of what he is sued.

Is the act then, of which Mr. Reynolds complains, one done by the Consul in his judicial character?  In other words, is it a judicial act? Or is it one outside that character in respect of which he cannot claim the immunities of the privileges with reference to the limitation of actions contained in the 4th section of the Order in Council 183, and in the 7th section  of the 6 and 7 Vict. Cap. 94?  If it is to be considered a judicial act, then the well known rule that a judicial officer cannot be sued for an adjudication made according to the best of his judgment upon a matter within his jurisdiction, and also that a matter of fact so adjudicated by him cannot be put in issue, applies, and he is not liable.

The simple question, then, that I have to determine is, was the paying over of this money a judicial act or the consequence of any judicial act?  To determine this it is necessary to look at the facts.  It is evident that Mr. Reynolds, in an action brought against a person of the name of Wynter, recovered in the Consular Court of Shanghai, of which Mr. Medhurst was the presiding Judge, a judgment for the sum claimed by him, i.e., Tls. 4,000.  It is clear also that, under this and other judgments, a sale of Mr. Wynter's property was ordered.  It appears further that Mr. Reynolds had authority to bid at the sale, and that he became the purchaser of the property for the sum of Tls. 5,100, which in accordance with the usual course of proceeding, was paid into the Consular Court.  It appears further that, out of this sum, certain of the judgments that I have mentioned, of small amounts due to workmen in the employ of Wynter, and which they had obtained in the same Consular Court were, with the consent of the plaintiff, satisfied.  It may be presumed that, had nothing further occurred, Mr. Reynolds' judgment would have been satisfied out of the balance remaining in the Consul's hands.

It is, however, in evidence that after the judgment obtained by Reynolds and before any actual sale of the property, a Dr. Legge of Hongkong wrote to Mr. Medhurst, informing him that he was the holder of a bill of sale prior in date to that tendered in evidence by Mr. Reynolds, and in this letter notice is given to the Consul not to part with the money.  Mr. Medhurst then appears to have applied to the Attorney General at Hongkong for advice, as to whether he would be justified in handing the proceeds of the sale to Dr. Legge.  It does not clearly appear what was the exact nature of the Attorney General's advice, or how far it was followed by Mr. Medhurst; but the fact is clear that Mr. Medhurst did hand over the money to Dr. Legge shortly before he left Shanghai for England.  There is no record of any claim duly filed by Dr. Legge; there is no record of any communication of such claim to Mr. Reynolds, although he appears from conversations with Mr. Medhurst, shortly before the latter's departure, to have been informed of Dr. Legg's letter.  It is certain that there was no decision on the subject of the claim, nor indeed are there any minutes with respect to it; and Mr. Medhurst does not pretend that he paid over this money in consequence of any enquiry into the merits of the claim, or in respect of any adjudication made by him upon it.  Indeed it appears clear that, although the claim, such as it was, made by Dr. Legge, is stated to be founded on a bill of sale, no bill of sale was ever proved to have been made by Wynter to Dr. Legge, or was ever established by evidence such as is usually required in cases where actions, suits, or claims are brought upon written documents.

This, then, is not the case of a judicial officer deciding between two rival claims, not is it the case of an interpleaded issue.  There was absolutely no evidence of Dr. Legge's bill of sale except the latter's assertion that he held one, and to this moment no evidence has been produced.  Dr. Legge cannot therefore be said to have ever been before the Consular Court.  And it may be, for all that is known to the contrary, that Dr. Legge's bill of sale [is] improperly executed; or it may be void by the laws of Hongkong; or that he would fail in establishing the identity of the goods which passed by it.

It may be taken, then, that Mr. Medhurst, having given judgment in Mr. Reynolds' favour in a claim made by him against Wynter, and having taken and sold in execution to goods of Wynter, handed over the proceeds of the goods to Dr. Legge, on the latter's mere statement that he held a bill of sale.  Am I, therefore, justified in saying that this handing over to Dr. Legge was a judicial act performed under the authority conferred on Mr. Medhurst by Sections 12 & 13 of the Order in Council 1853?  I have carefully looked into all the cases cited at the Bar, - those cited by the learned Counsel for the Defendants viz: Gwinne v Poole 2 Sutio 1560, Hammond v Howell,  2 Mod. 218, Carr v Mountain, 1 Scott N.R. 132, Metcalfe v Hodgson, Hutton 120, Calder Halket 3 Moo. P.C.C. 28 - are all of them cases, in which the Defendants being judges of Courts of record issued judicial processes, some on insufficient grounds, and in others they exercised an unsound discretion.  Still the issuing of these processes improper as they may have been were clearly judicial acts, and within the jurisdiction of the judges making them.  In the case of Gardi[ner} Ferrand 6 B. & C. 611, the Coroner removed the plaintiff from the place wherein the inquest was being held, and although in that case there was no written evidence of a judicial act, still it is clear that the removal of any one by the order of the presiding Judge of a Court, is a lawful act and one within his jurisdiction, and for which he is not responsible in a civil action.In the cases cited by the Counsel for the plaintiff, I find that where a defendant claims to act judicially under the authority conferred upon him, it must be shown that his action was not within the authority by which alone his judicial power is created.  In the case of Lowndes v Edwards (4 B. and Add. 611) the defendant was held liable because he committed the plaintiff to prison orally, without any warrant in writing, and there kept him beyond the time reasonably required for making out a warrant; and he was so held liable because the statute under which the committal was made, also enacted that the authority so created should be exercised by making a warrant in writing.

In the present case the judicial power of the Consul to hear and determine civil cases between British subjects is conferred by the 12th section of the Order already referred to; and it is evident that he can only exercise it in conformity with the provisions therein contained.  By the 28th section it is ordered that a minute of the proceedings heard and determined by the Consul in pursuance of the order, shall be drawn up and signed by him, and such minutes shall be preserved in his public office.  Section 37 gives power to the Chief Superintendant of Trade to establish Rules of Practice to be observed in Consular Courts, and on reference to these Rules I find that the 20th provides that such minutes shall be taken by the Consul, in each case, as may be necessary for the due adjudication and record thereof, and such minutes are to be signed with the Consul's name so as to form a proper record.  It appears farther from the 13th Section of the same Order in Council that, whenever a suit of a civil nature is brought before a Consul for decision, provided the sum sought to be recovered shall exceed $500, the Consul shall hear the case with Assessors; and in the preceding Section there is a provision that when the sum in dispute shall exceed $1000, an appeal shall lie to the Supreme Court at Hongkong.

Now in the present case it is clear that a suit or rather a claim of a civil nature had been adjudicated upon by the Consul in favour if Mr. Reynolds, under the provisions of the Order in Council, and a sale of the property of the Defendant in that action had been ordered by the Court to satisfy the judgment obtained and had taken place.  So far the proceedings were formal.  But it is difficult to see what action of a judicial character was taken by the Consul on Dr. Legge's letter.  There are no minutes of any proceedings with reference to it, there is no record of it.  The claim itself, which was undoubtedly of the nature of a civil suit, was not heard and determined in accordance either with Sections 12, 13 or 28 of the Order in Council; no assessors were summoned; neither was it possible for the Plaintiff if it were ever intended he should be a party to such suit, - for there is no evidence of the service or communication of any claim to him - to have availed himself of the provisions with reference to appeal.  The money was not handed over to Dr. Legge on consequence of any adjudication in his favour, nor was any order made by the present defendant or sealed with the seal of his Court or otherwise made by him in the matter.  Can I, then, say that it was an act of a judicial nature, or such an act of a judicial nature as would cure any irregularity or error, or be dispunishable by ordinary process of law?

The Order in Council creating the jurisdiction of the Council provides that certain proceedings shall be taken and certain formalities observed; that none were observed so far as Dr. Legge's claim is concerned, is established by Mr. Medhurst's own evidence.  He acted he says under the advice of H.M.'s Attorney General in Hongkong, whose duty it then was, apparently, to advise H.M.'s Consuls when appealed to.  Moreover when a judge of a Court claims immunity by reason of his having acted judicially, the only evidence of his having so acted is the Record itself (see Dictum of Sir William Erle in Kemp v. Neville.) and in the case before me there is no record of any kind.

Mr. Medhurst's action really amounts to this that, having the proceeds of a certain property sold under certain judgments, some of which had been satisfied out of such proceeds, he upon a mere intimation that another person claims the proceeds, acting, as he says, under the advice of the Attorney General, hands over to such person the balance remaining in his hands.  I cannot say that suchj an act was done in the exercise of judicial authority, because it appears to me to have been done, not only not in accordance with the provision of the Order in Council which conferred the authority, but also in disregard of the rule of procedure framed by the Chief Superintendent of Trade for observance by Consuls in respect to civil proceedings before them.

If I am right in this holding, it follows that the Consul cannot avail himself of the Limitation of action clause No. 44 of the Order in Council and section 7 of 6 and 7 Vic., because both the clause in the Order in Council and the section in the Act merely refer to things done in pursuance of the power of jurisdiction conferred by the one or the other.

I have no doubt that Mr. Medhurst, acting, as he states he did, under the advice of the Attorney General, did what he thought he was justified in doing; but this alone will not convert an act into a judicial act when it cannot properly be brought under that character.  There is no suggestion, nor can it be conceived for a moment that Mr. Medhurst acted maliciously or other than bona fide. He has received no benefit, and it is evident that he never sought to receive any.  Nevertheless, I cannot do otherwise than hold him responsible for the money which came into his possession in consequence of an act of judicial authority\, and which he appears to have handed over to a person who, so far as he knew, had no proved title to it, and to whom it was certainly not given under or by virtue of any judicial proceeding.

In the course of this trial \before me, I refused to admit a document tendered by the counsel for the defendant, as the original of Dr. Legge's bill of sale.  There was no evidence offered of its authenticity, and in the absence of any record of which, if ever put in suit it was mentioned, I did not see how it could affect, or be allowed to affect, the plaintiff's claim,.

While however I feel bound to give my judgment in favour of the plaintiff on the question of the legal liability of the defendant for the amount of Tls. 4,000 with interest thereon at the rate of six per cent.  I am by no means certain that much benefit will result to him, for as regards the Tls. 2666.67 handed over to Dr. Legge, if it should appear that Dr. Legge's Bill of Sale is a valid one and is entitled to priority over that held by the plaintiff.  It would be a manifest injustice to make Mr. Medhurst pay to Mr. Reynolds a debt owed by the latter by Wynter & Co., but which, in consequence of the validity of Dr. Legg's mortgage on the property sold, there exists nothing out of which it can be paid.  I think Mr. Medhurst is entitled, if he apply for it, to a stay of execution, so far as regards the sum of 2,666.7 taels until the question of the validity of Dr. Legge's Bill of sale is decided, for if it passed all the property in the goods sold to him, then the proceeds were his, and could not be properly applied in  satisfaction of the judgment debt, and Mr. Reynolds is not in a worse position, quoad this sum, than he would have been if the point had been at the time, as it ought to have been, judicially decided in 1862, and if the alleged Bill odf Sale was and is invalid, then Mr. Reynolds will be entitled to the whole amount of the verdict.  I shall of course, if an application is made by the defendant, put him under terms as to time, and it will be for him to call upon Dr. Legge to substantiate his Bill of Sale.  This course is perhaps unusual, but it is to be remembered that this Court is also a Court of Equity; and it would be a manifest injustice to call on Mr. Medhurst to pay Mr. Reynolds a sum of money which, unfortunately for Mr. Reynolds, he might never have been, under the circumstances, in a position to recover.

It is a satisfaction to me to know that there is a higher tribunal, empowered to review and correct any error into which, in pronouncing this judgment, I may have fallen.  The law library of this Court is so small that I have not been able to consult in the full reports many of the cases cited, or which I have found referred to in the text books.  As I have already showed, although I cannot in law relieve Mr. Medhurst from the responsibility he has incurred - he is entirely absolved from having acted arbitrarily or in any manner in bad faith.  The plaintiff himself has very properly repudiated any idea but that Mr. Medhurst thought he was doing what was right and proper for him to do.  He appears to have consulted the Attorney general, as by his instructions he was told to do in all matters of difficulty, and if, and I have no reason to doubt, he followed the advice given, he is relieved from all blame in the matter.

It may perhaps be as well that I should again allude to the universally admitted rule of law, that Judges of Courts of record are not civilly responsible for acts done in the exercise of their judicial authority, in order to prevent any misapprehension either on the part of Consuls exercising judicial functions, or of suitors in their Courts.

"Liability" says Justice Mayne in the case of Taafe v. Downes "in a judge, to every man's action, for every judicial act a judge is called upon to do, is the degradation of a judge; and cannot be the object of any true patriot, or honest subject.  It is to render the judges slaves in every Court that holds pleas, to every Sheriff, Juror, Attorney and Plaintiff.  If you once break down the barrier of their dignity, and subject them to an action, you let in upon the judicial authority, a wide, wasting and harassing persecution, and establish its weakness in a degrading responsibility."

Published by Centre for Comparative Law, History and Governance at Macquarie Law School