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Colonial Cases

Seymour and others v. Municipal Council, 1893

[land law]

Seymour and others v. Municipal Council

Court of Consuls
Hannen and Eiswaldt, 21 November 1893
Source: North China Herald, 24 November, 1893

Shanghai, 21st November.
Before N. J. Hannen, Esq., H.B.M.'s Consul-General, and Dr. Eiswaldt, H.I.G.M.'s Acting Consul-General.

The Court sat this afternoon for the purpose of hearing two summonses in this suit, which relates to the land used as the Rifle Range.
  Mr. W. V. Drummond appeared for the plaintiffs, Mr. Charles Dowdall for the defendants, and Mr. W. S. Emens, U.S. Vice Consul-General, acted as Secretary to the Court. Upon the Court being constituted,
  Mr. Hannen said - I regret to have to inform you that Mr. Jones (the U.S. Consul-General) is so unwell that he is unable to attend today, but I may say that the proceedings of the Court must go on unless you consent to an adjournment. I have only received notice of this within the last quarter of an hour.
  Mr. Drummond - Quite so; I was only just informed of the same thing. There is some difficulty in connection with that. The plaintiffs; or some of them, are citizens of the United States and all the documents connected with the title-deeds, I think, are registered in the United States Consulate.
  Mr. Hannen - I do not suppose that would affect it; at any rate it does not affect the present question.
  Mr. Drummond -  It does not affect the mere summons, but I think the plaintiffs would like to have the full Court at the hearing of the case.
  Mr. Hannen - For the purpose of today, it is entirely, I imagine, with them. If you do not consent, both of you, to adjourn, I think we must go on.
  Mr. Drummond - The Land Regulations provide that the Court "shall be established at the beginning of each year by the whole body of Treaty Consuls."  I presume that at the commencement of this year, as usual, the whole body of Treaty Consuls appointed representatives?
  Mr. Hannen - The representatives of Great Britain, the United States and Germany. I should be glad of you could agree with me one way or the other as to whether we should go on or whether we should adjourn.
  Mr. Drummond - So far as I am concerned for the plaintiffs I am quite prepared for the matter being heard now.
  Mr. Dowdall - I will consent too.
  Mr. Hannen - Very well, then we will go on.
  Mr. Drummond then proceeded to make his application in the terms of the first summons, which was as follows:
Let all parties concerned attend the Court of Consuls on Tuesday the 21st day of November at 3 o'clock in the afternoon on the hearing of an application on the part of the plaintiffs that the defendants may be ordered within eight days after service of the order to be made upon this application to file a full and sufficient affidavit stating whether the defendants have or have not in their possession the power any and (if any) what books or documents relating to the matters in question in this suit, and accounting for the same, and that the defendants may be ordered at all reasonable times upon reasonable notice to produce at their office of their Council or at some other convenient place, the books and documents which by such affidavit shall appear to be in their possession or power, except such of the  said documents (if any) as they may be by such affidavit object to produce, and that the plaintiffs or their Counsel or agent may be at liberty to inspect and peruse the documents so produced and to take copies and abstracts thereof as they shall be advised, and that the defendants may be ordered to produce the said books or documents on any examination of witnesses in this suit, and at the hearing thereof, as the plaintiffs shall require, and that the plaintiffs may be at liberty to make such further application as to all or any of the books and documents mentioned in such affidavits as they may be advised, and that the costs of the application and of the discovery may be costs in the case, and let this summons be served upon the defendants or their Council.
By the Court.  W. S. Emens, Secretary.
This summons was taken out by William Vernon Drummond, Counsel for the plaintiffs.
TO Charles Dowdall, Esq.
The affidavit in support was as follows:
  I, William Venn Drummond of Shanghai in the Empire of China, Barrister at Law, make oath and say as follows:-
- I am Counsel for the plaintiffs in the above suit.
- On or about the 24th day of August, 1893, I received a letter from R. F. Thorburn, the Secretary of the Municipal Council, written by the direction of the Chairman of the Municipal Council in the words and figures following, that is to say -
Shanghai, 24th August, 1893.
No. 93/457.
  SIR, - I am directed by the Chairman to say in reply to your letter of yesterday's date that the Council will on the terms stated in tour letter leave for the present openings in the fence opposite the gates of the homes occupied by Dr. Farnham, Miss Banker, Mr. J. C. Grant, and Mr. Vinzenzinovich.
  The Chairman regrets to find that you are not going to give particulars of the cases where any of your clients consider their land as included within the fence, as the investigation of this part of the question could be made most satisfactorily by the surveyors of the parties on the ground, or at least they might ascertain the facts for the Court.  I am, &c
  3.-  On the 28th day of August, 1893, I wrote a letter to the Chairman of the Municipal Council in reply to the above written letter, in the words and figures following, that is to say:-
Shanghai, 28th August.
  SIR, - I have to acknowledge the receipt of your letter sent by your direction, and dated the 24th instant.
  Since the receipt of that letter Mr. Dowdall has called upon me and I have arranged with him that the hearing of the case should not be brought on earlier than the middle of October next.
  In reference to the last paragraph of the letter under reply I may say that I have not at any time stated that I am  not going to give particulars of the cases where any of my clients consider their land to be included within the fence.  Particulars will of course be given in the petition, and, after the answer has been filed, whatever investigations may be found necessary in order to place the case clearly before the Court, can then be made by both sides in the usual way and either separately or jointly as may be found desirable.
I am, &c.
4.- On Thursday the 26th day of October I wrote a letter to Charles Dowdall, Counsel for the defendants, enclosing a summons for an affidavit and discovery and inspection of documents in the above suit and asking his consent to the said summons.
5. - A copy pf the said summons is annexed hereto and marked with the letter "A."
6. - The said Charles Dowdall on the same day wrote to me returning the said summons and refusing to consent thereto.
7. - I am informed and believe that the defendants have in their possession or power title-deeds, maps, plans, documents and letters relating to the subject matter of this suit.
8. - I believe that it is material and necessary for me in order to support the claim of the plaintiffs on the trial of this cause and to prepare for the trial thereof to have such title-deeds, maps, plans, documents and letters produced to me and that the plaintiffs will derive material advantage and support from the production of the same.
  I believe that the plaintiffs are entitled to the said affidavit of documents and the production of the said title-deeds, maps, plans, documents and letters for the purpose of discovery and establishing their claims in this action and that the discovery and inspection of the  said title-deeds, maps, plans, documents and letters will save the  time of the Court  at the hearing. This affidavit is filed on behalf of the plaintiffs, &c.
  The learned Counsel said - The jurisdiction of this Court, as already referred to, rests upon Article 27 of the Land Regulations.  The first time the jurisdiction of this Court was called into play was in May, 1882, when a case was tried, which is reported in the North China Herald, of 2nd of June, 9th and 23rd of June, 1882. That was the first case ever tried before this Court. In that case it was held there were no rules of procedure binding or applicable to the Court. Immediately following that, and I presume in consequence of that case, in the following month a set of rules of procedure was drawn up of which I have no doubt Your Honours have a copy.
  They are very brief indeed and do not attempt to give anything like a complete code of practice for all the questions that necessarily arise in the case of cases and suits. They mostly provide for a few special things and practically leave every question with regard to interim orders, such as this, entirely at the discretion of the Court upon the facts of every case before it. There is nothing in these rules of procedure specially applying to this particular point.  It is necessary, therefore, to fall back upon the rules or practice of some fully developed legal procedure, and therefore I propose to support my application by referring to the English practice upon this point.
  The practice in reference to this application, which is for an affidavit of documents to be filed, and afterwards for an order for discovery and inspection, is to be found in Chitty's Archbold's Practice, pages  401 and 505, and in  Daniel's Practice also.  The summons before the Court is in the ordinary form in which it would be if it were a suit in an English Court in respect of an application where an affidavit has been filed. It is not necessary to have one, but in this case it was thought desirable to have one and it has been done, giving the grounds upon which the application is based. In addition to that, a draft of the order which I ask the Court to make has been filed with the Clerk of the Court. It follows very closely in terms the words of the summons.  It appears to me now only necessary to point out to the Court that in this case it is desirable that such an order should be made and that the plaintiffs should have the usual facilities which they would have in a suit in an English Court, by means of an affidavit of documents relating to the point in dispute, and an order for inspection and discovery, and the taking of copies and other matters incidental to the point.  The affidavit has been refused by the defendants, so I am therefore compelled to come to the Court and ask the Court to make an order compelling the defendants to make the affidavit I want.
  I will refer the Court to the language used in the letters set out in the affidavit. (Letters set out in the above affidavit read). It will thus been seen that I was agreeable to have all the facts ascertained before the hearing, but I merely withheld consent to it then as premature, but now the petition and answer are filed the time has arrived when it is desirable, both in the interests of the plaintiffs and themselves, and of the Court, that the investigation should be carried so far as it can be prior to the hearing, so that the facts may be succinctly stated, which can only be done after an investigation of the documents in the possession of the defendants. That is the general practice. It might be that on coming to the hearing we might have documents produced which might take us entirely by surprise, and a considerable waste of time night be caused by the investigation of these matters, which could be now saved before the hearing.
  I think it is very desirable to follow the English practice, so that after an investigation of all these matters I may be able to place the case before the Court. I think the application is so reasonable that I could hardly suppose there should be any opposition to it. At any rate I think I am entitled to ask the Court to make the order I now do.
  Mr. Dowdall - The petition alleges that the plaintiffs are the owners of certain pieces of land which appear from the petition to abut upon the Rifle Range, including part of the Rifle Range. The petition does not allege that the plaintiffs were ever in possession of the lands; and it states that a fence has been recently erected by the defendants, and that this fence includes a portion of the land within the boundaries  of the properties of the plaintiffs and prevents the plaintiffs from having access to their dwelling houses which they have hitherto enjoyed. The petition also proceeds to allege that the use of the Rifle Range for practice has become a danger and a nuisance, and that this use ought to be discontinued.  The answer says that the Council "has for many years caused a strip of land, situated in Hongkew, which, where it adjoins the plaintiffs' lands, is forty feet wide, and is called the Rifle Range, to be used as a Municipal Rifle Range. No part of it is, or is properly called, a road."  They say that "except for two small buildings for the occupation of Chinese on one of the plaintiffs' lots, there is no dwelling house or building on any of these lots."  The Council do not admit that the fence includes any part of the land of the plaintiffs, and there were no buildings on any of the plaintiffs' lots before the last few months.
  Now, first of all I must say that I do not suppose the Court will be guided by the Rules of the English Court, or any other Court. The Court has complete discretion in the matter and will probably exercise that discretion so as to do justice in this particular case. It is hampered by no sort of rules. Here is a case where the plaintiffs come and say, "You are on our land; you must move off," and the defendants say, "Let us refer this matter to our surveyors." The plaintiffs say that they have never refused to refer it to the surveyors, and they file a petition. Then they come before the Court and ask generally that the defendants should be ordered to produce books and documents in their power relating to the matter in question, and in the affidavits in support of that it is stated deponent believes that there are title-deeds, maps, plans, documents and letters relating to the matters in question in the hands of the defendants.  Now, upon this one point of the case , I submit to the Court that while the plaintiffs allege that the land in question belongs to them and the defendants deny that the land belongs to the plaintiffs,  that it should be left to the plaintiffs if they have any title, to give their evidence of title before the court, and that it is not right to call upon the defendants - against whom the plaintiffs prove nothing - to produce all the title-deeds and papers in their possession relating to the matters in question. I submit that a man claiming land has to substantiate his claim himself, and not proceed as if he expected his claim by any defect in the title-deeds of the defendant, if there be any  in the hands of the defendant.
  Then the summons asks for an affidavit by the defendants stating "whether the defendants have or have not in their possession or power any, and if any, what books or documents relating  to the matters in question in this suit and accounting for the same." Now, one of the matters in question in this suit is whether the Municipal Council are entitled to keep up the Rifle Butts, and I submit that the consideration of whether a body like the Municipal Council - taking part in the government and providing for the good order of the Settlement under circumstances which might occur - I submit that a body so much in the nature of a government as that ought not, without very good cause, to be ordered even to make an affidavit disclosing  all the documents which they have  or have had relating to the matters in question without  some good cause being shown for it.
  In this case one of the plaintiffs is a Chinaman, a subject of the Emperor of China. It is quite possible that a case might occur in which the Municipal Council, upon the report of their police, would find it necessary, perhaps, to erect a barrier or some obstruction n in the street, if they thought that there was a specially dangerous neighbourhood outside that street, and if a precedent is established here,  it seems to me that it would be very dangerous because one of the people that the  Council might most fear would have it in his power to bring a suit against the Council, possibly quite frivolous, and by means of  an affidavit obtain the information  he wants from the Council, under such an order as is asked for in this case. If Your Honours think proper to make  an order I would submit that it should be limited to the production of title-deeds. I hope Your Honours will not make an order for the defendants to produce their title-deeds to help a man to get possession of land which they have got.  I submit that the order for production ought not to go any further, and to enable practically the public, and any disaffected person in or out of the Settlement to know what steps the Council are taking for the peace and good order of the Settlement. If an order is made - the summons asks for an affidavit by the Municipal Council - I submit that an affidavit by the Secretary would suffice. The summons asks for the affidavit to be made within eight days, but I would suggest if the order is made, the time should be twenty-eight days, but I do hope that the plaintiffs, coming and saying that the Council's land is theirs, will not be entitled to any affidavit of documents without giving some evidence of their title to the land they clam.
  Mr. Drummond in reply said that his learned friend had quoted from some of the statements in the petition but he had overlooked some very important ones. He thought the present application was a very reasonable one, and if the defendants had asked for similar information from the defendants they would have been entitled to it. If the discovery asked for was not a reasonable one an affidavit from the defendants should have been filed in reply, but there was no answer and therefore he thought his clients were entitled to the order.
  As regarded his learned friend's argument that under certain circumstances frivolous applications might be made to the Court, he ventured to submit that if such an application were made the Court would know how to deal with it.
  Having referred to authorities the learned counsel argued that there was no reason why the Municipal Council should be exempt from making the affidavit asked for. The Council alleged that for thirty years they had been in possession of the property, and if so it was to be presumed that in the ordinary course of their duty they had taken care to have good title and were in a strong position. Why then should they refuse to give the other side the opportunity of investigating them?
  This concluded the arguments upon the summons and the Court deliberated a few minutes in private. Upon returning,
  Mr. Hannen said, -  Dr. Eiswaldt and myself agree that this application should be refused. We consider that it is for the plaintiffs to make out their case and that an investigation of the title-deeds of the Council cannot do them any real good, and  we think that we ought not to take the first step of insisting that they should swear an affidavit of the documents in their possession.
  With regard to the other things, the demand appears to us to be too general, and we agreed with Mr. Dowdall's contention that there are many things that the Municipal Council ought not to disclose to any plaintiffs or to the public with regard to its affairs in connection with the defence and proper protection of the Settlement, and we must therefore refuse the application.
The hearing of the next summons, which was as follows, was next proceeded with:
  Let all parties concerned attend at H.B.M.'s Supreme Court on Tuesday, the 21st day of November, 1893, at 3 o'clock in the afternoon on the hearing on the part of the defendants that the plaintiffs may be required to deposit in Court the sum of Tls. 500 or such sum as the Court may fix as security for the payment of any costs which may be awarded to the defendants, without prejudice to any application which may be made for further security; and that the suit may not proceed until such deposit be made.
By the Court, &c.
This summons was taken out by me, Charles Dowdall of Shanghai, Solicitor for the defendants, &c.
  Mr. Dowdall explained that this was a summons taken out by the defendants asking that the plaintiffs might be required to deposit in Court the sum of Tls. 500 or such sum as the Court might order, as security for the payment of any costs awarded to the defendants, without prejudice to any application which might be made for further security.
  The Land Regulations provided that the Council could sue and be sued, and that the Council should have all the rights of private complainants, and the rules of that Court said that any interlocutory order might be made, and if they were not complied with, then judgment might be given against the party.
  There was no question that that Court had any jurisdiction over the Municipal Council, and if anyone had any doubt about it the Municipal Council would be quite prepared to deposit any security that the Court might name, but as to the plaintiffs it was by no  means clear how the Municipal Council could recover  them in the event of winning the case. One of the plaintiffs was a Chinaman, and there were other nationalities. But even if it could not be conceived that there would be some way of recovering costs he submitted that it was a desirable thing that the plaintiffs should be required to deposit  some money at all events which would guarantee that their suit was bona fide and that they would conduct it in a proper way.
  Mr. Drummond, referring to the Rules of the Court, contended that the Court had no authority to require the plaintiffs to deposit a sum to cover costs as between the parties. The Court could order the deposit of s um to cover the Court fees, and $100 had already been deposited for that purpose.
  Mr. Dowdall pointed out that the Council would be put to considerable expense in defending the action and urged the reasonableness of the application.
  Mr. Hannen, after consulting with Dr. Eiswaldt, said - Without determining that this Court has not got the power to order such security to be given, for I believe that cases might arise in which it would be just and necessary that it should be done, we do not consider that in the present case we ought to order any security for the costs of the other side.

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