Skip to Content

Colonial Cases

Sung Hoong Hai and others v Kingsmill, 1898

[trespass to land - wrongful arrest]


 

Sung Hoong Hai and others v Kingsmill

Supreme Court for China and Japan
Hannen CJ, 22 June 1898
Source: North China Herald, 27 June, 1898


 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 22nd June.

Before Sir Nicholas J. Hannen, Chief Justice.

SUNG HOONG HAI AND OTHERS v. T. W. KINGSMILL.

   This was an action brought by four Chinese subjects against Mr. T. W. Kingsmill, architect and surveyor of Shanghai, seeking an injunction from trespass on certain land the property of the plaintiffs in addition to damages for such trespass. The case involved certain very important issues.

   Mr. H. P. Wilkinson appeared for the plaintiffs, and Mr. F. Ellis defended.

   The Petition and Answer were as follows:

   [1.] The plaintiffs are Chinese subjects residing in Sinza at Shanghai, in the Empire of China.

   [2.] The defendant is a British subject a Civil Engineer and Architect residing at Shanghai aforesaid.

   [3.] The plaintiffs are and for many years past have been the owners and occupiers of certain land situated in the tenth division of the twenty-seventh district at Sinza at Shanghai aforesaid and the plaintiffs were at the time of the committing of the grievances hereafter mentioned in possession and occupation of the said land.

   [4.] Before the 23rd day of March 1898 the defendant at divers times broke and entered the said land and measured and surveyed the same and erected stakes or poles therein.

   [5.] On or about the 23rd day of March 1898, the defendant in company with many persons, his servants, workmen and agents wrongfully broke and entered the said land the property of plaintiffs and brought thereon certain stones marked with his name, initials or device of the defendant and attempted to erect the same therein for the purpose of marking the boundaries of the said land as being the property of him the defendant and attempted to eject the plaintiffs therefrom.

   [6.] At various times thereafter the defendant by his servants, workmen and agents had repeated and continues and the defendant threatens to repeat and continue the said trespass.

   [7.] The plaintiffs therefore claim:

   (1) Five thousand taels damages for the trespass by the defendant, his servants, workmen and agents hereinbefore complained of;

(2) A perpetual injunction to restrain the defendant, his servants, workmen and agents, from continuing or repeating the said trespass.

(3) Such further or other relief as the nature of the case may require.

The answer of the above-named defendant is as follows:

   [1.] 1 and 2 are admitted.

   [2.] 3. The defendant acknowledges that certain parties whom he knows not have been in possession of the lands referred to.

   [3.] 4. The defendant in the usual course of his business surveyed the entire of the Sinza district from the Defence Creek to the new Ta Wan Miao Road. Said survey was not made with object of claiming possession of any land and no premises were entered without the consent of the occupiers.

   [4.] 5 - is denied. The defendant at the request of the Chinese officials did attend at the date mentioned as explained below, on the protest of the occupiers the defendant immediately deserted. No private ground was entered the defendant standing in the public road.

   [5. 6 - is denied.

   [7.] - (1) - The defendant denies that any damage has been inflicted through any act of his or his servants.

   [7.] - (2) & (3) The defendant, on learning that the plaintiffs declined to yield up peaceable possession of the land referred to gave instructions that he was not desirous of proceeding further. He is not willing with or without an injunction, to withdraw all claims of any sort to the property in question and has applied to H.B.M.'s Consulate for a return of the documents of sale lodged by him indorsed to that effect.

The defendant further states:

   [1.] That in March 1896 he contracted with the Chinese authorities to purchase for a sum of twenty thousand taels certain lands stated to be the property of the Chinese Government to be subsequently arranged. On the 13th of March 1897, the defendant drew a cheque for the amount in full in favour of Wang Taotrai which was presented on the 16th day of that month and duly honoured.

   [2.] In accordance with this engagement there were issued to the defendant certain Ying Yu's or official deeds of sale covering various properties in and about Shanghai. These documents were duly presented to H.B.M.'s Consul for registration. Some of these documents were found in order and are now in the possession of the defendant as lots 2259,2260, 2166 and 2316.

   [3.] The Ying Yu's for the property in question were issued in July 1896 and on the 6th of that month were lodged in H.B.M.'s Consulate. At the request of the Chinese Government these were subsequently withdrawn.

   [4.] In July,1897 the Ying Yu's accompanied by a plan of the land which was the property of the Chinese Government were handed to ma and duly lodged at H.B.M.'s Consulate. I did not, however, take any steps pending the verification of the titles to interfere with the tenants in any way. Mr. Scott informed me that the occupiers claimed ownership and that unless I could arrange to obtain possession no deeds would be issued. I communicated with the native authorities who informed me that they would send a Weiyuen to fix the boundary stones and deliver the property. On the day appointed I attempted as explained in paragraph 5 of the answer above. On the residents informing me of their refusal I reported to the Chi Shien but have taken no further steps of any kind.

   Mr. H. P. Wilkinson, having read the petition and answer, proceeded to open the case for the plaintiffs. He said: This is a suit brought for trespass by the plaintiffs, - representatives of a Chinese family - against Mr. Kingsmill. The plaintiffs are stated in the pleadings to be owners and occupiers of certain land. It is for your Lordship to say what issues are raised by the pleadings, but I will deal with the case shortly and in a way which I think will lead to a speedy decision.

   Possession is prima facie evidence of title and gives a good right of action against a wrongdoer who cannot show a better title, as shown in "Every and Smith" (page 344, volume 25, Law Journal). In paragraph 3 of the answer Mr. Kingsmill admits possession of the property referred to by parties unknown to him. My clients can prove that they have been the parties in uninterrupted possession, for over 68 years. Every unjustified entry upon land in the occupation of another is a trespass. Mr. Kingsmill has pleaded that he did no damage by the action will lie though the trespass is unintentional and though really no harm was done. I will refer your Lordship to the head-note in Mearest v. Harvie (3, Taunton's report, p. 442) which says:

   "The Court held that upon a declaration for breaking the plaintiff's close, treading his grass, and hunting for game and other wrongs, £500 were not excessive damages, for the trespass in sporting persevered, in defiance of notice and accompanied by indecent and offensive demeanour."

   I have specially referred to this head-note because it shows, that where no damage is really done to the locus in quo still the plaintiff who succeeds may claim in an action of trespass to land, damages in regard to the circumstances attending, and consequence of, such trespass.  Mr. Kingsmill has pleaded that he was standing on a public road. The petition alleges acts done by him, namely, surveying, setting up poles and the digging i

of holes and the setting up of boundary stones marked with his name, which Mr. Kinsgmill has not directly pleaded to. My clients say and will prove that there is no public road on the property and that the stones were not set up on any road, and I further submit that the digging of holes in a public way, were the property proved to be such, would in itself form a trespass giving right of action to my clients. This is shown in the form of action set out in Cunningham and Mallinson's Pleadings, page 603. There the action is brought for trespass on a private road, part of a close of the plaintiffs, but I submit that even in the case of a public right of way my clients would have a cause of action.

   His Lordship - Have you any authority for that? In the pleadings you mention that the action is brought for trespass to a highway part of the property of the plaintiffs.

   Mr. Wilkinson - My clients deny that there is any public road on the property. However, in Bullen and Leeke's Precedents of Pleadings there is a reference "for trespass to highway" (page 410). The reference seems to be to the case of the Monmouthshire Canal and Railway Company versus Hill (28, Law Journal, Exchequer, page 283).

   His Lordship - The property being in the Monmouthshire and Railway Company?

   Mr. Wilkinson - If necessary I can look up case upon that point. I will not however press that point since the trespass, as shown in the pleadings is admitted in the way of business, Mr. Kingsmill in paragraph 4 of his Answer setting out that he surveyed the land in the way of business.

   His Lordship - Yes, Mr. Wilkinson, but it is also stated to be with the consent of the occupiers.

   Mr. Wilkinson - My Lord, I will bring evidence to show there was no consent.

   His Lordship - It is obvious that no one, simply because his profession is that of a surveyor, can walk over another man's property without his consent.

   Mr. Wilkinson - It appears to me that the defendant thought otherwise. The alleged trespass is admitted in the second place as being at the request of "Chinese officials." This plea, if your Lordship so considers, raises the defence that the plaintiffs have no title to the freehold and that the defendant had a title or was acting in behalf of those who had a strong title to the land. As regards the first plea, I will ask your Lordship after hearing the evidence to say that the original survey was connected directly with the claims put forward by Mr. Kingsmill and was part and parcel of the same transaction. As to the defence that the alleged trespass was at the instance of the Chinese authorities, I will deal with that later.

   As to the claim that part of the property concerned is a public road, apart from the great post roads of China, there is no such thing as a public right of way over certain geometrical points. By Chinese law A, B. C and D, the owners and occupiers of neighbouring lots of land have a right to cultivate the whole of their holdings. There is a concurrent right in X and Y, the owners of property on opposite sides of these holdings having a right to the way of necessity a right recognised in any system of advanced law. These two rights operate together, the result is that X and Y have the right of passage over certain geometrical points.

   His Lordship - You are opening up a very big thing Mr. Wilkinson, and as Mr. Kingsmill had given up all claim to the land it would appear you are opening it up so to very small purpose. It seems something like using a steam hammer to crush a butterfly.

   Mr. Wilkinson - My clients are prepared to waive the question of damages if we get a simple formal judgment of the trespass, and that the injunction be made perpetual.

   His Lordship - I understood that Mr. Kingsmill was ready to have it made perpetual.

   Mr. Wilkinson - He was in that frame of mind, but I don't think so now.

   Mr. Ellis - My client Mr. Kingsmill is quite prepared up give up all private claims to the land in question, but that has nothing to do with the claim that the Chinese authorities may have to this particular land.

   His Lordship - I have no jurisdiction over them only over Mr. Kingsmill and if he is willing that the injunction should be made perpetual there only remains the question of damages.  In giving judgment I should be careful to word it in such a way that it would not affect anybody outside. If Mr. Kingsmill is willing to allow this injunction to be made perpetual it is for you and your clients to say whether it is worthwhile entering upon so large a subject with so small an object.

   Mr. Ellis - As I have just mentioned, Mr. Kingsmill is quite prepared to agree to a perpetual injunction but  -

   His Lordship - I want you to give me an answer to one specific question, - Is he prepared to have the interim injunction made a perpetual one?

   Mr. Ellis - Yes, Mr. Kingsmill instructs me to say he is.

   His Lordship - Then the order will be made.

   Mr. Wilkinson - With regard to costs your Lordship, I ask that we should have them, as my clients are poor men.

   Mr. Ellis - The matter of costs rests entirely with your Lordship. I would only ask that each party should pay his own costs.

   His Lordship - I don't think that is fair under the circumstances of the case. Mr. Ellis, I will assess the costs - would you consent?

   Mr. Ellis - I will consent, my Lord.

   His Lordship - Then I will allow Tls. 100 costs, for Court fees, and by consent the interim injunction will be made perpetual.

   Mr. Wilkinson - There is a matter I should like to mention and that is that this injunction should settle the criminal proceedings now pending against my clients.

   His Lordship - It is scarcely necessary for me to say, that as a question of morals, it is manifest that Mr. Kingsmill having given up all claim to the property he ought not to take or contemplate or help in any way proceedings against the owners of what he now says he has no right to.

   Mr. Ellis - I know as a matter of fact that the Shanghai magistrate has given an undertaking that he will not take any proceedings civil or criminal against the plaintiffs for any acts alleged to have been committed or arising out of this action.

   His Lordship - I hope that undertaking will be accepted. I have no doubt it will. 

 

SUPNOV28A


 

Source: North China Herald, 28 November, 1898

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 23rd November.

Before Sir Nicholas J. Hannen, Chief Justice.

SUN HOONG HAI AND OTHERS v. T. W. KINGSMILL.

   This was an action arising out of a case heard in June last when the Chinese subject members of the Sun family at Sinza obtained an injunction against defendant, a civil engineer and architect, of Shanghai, for trespassing on their land. It was now alleged that the defendant by not staying certain proceedings he had initiated in the Mixed Court had ignored his undertaking to abide by the ruling of his Lordship, and moreover had caused injury, suffering and imprisonment to one of the plaintiffs, who, in consequence, claimed damages.

   Mr. H. P. Wilkinson appeared for the plaintiffs and Mr. Francis Ellis defended.

   The Petition of the plaintiffs stated:

   Shanghai the 28th day of October,1898.

   Between SUN HOONG HAI, SUN ZIE ZIE, SUN CHUNG WOO, and SUN QUAI YUNG, plaintiffs, and THOMAS WILLIAM KINGSMILL, defendant.

   To SIR NICHOLAS JOHN HANNEN, Chief Justice of Her Britannic Majesty's Supreme Court for China and Japan.

   The Petition of the above-named plaintiffs showeth as follows:

   [1.] The plaintiffs are Chinese subjects abiding in Sinza in Shanghai in the Empire of China.

   [2.] The defendant is a British subject, a civil engineer and architect, residing at Shanghai aforesaid.

   [3.] The plaintiffs are and for many years have been the owners and occupants of certain land situated in the tenth division of the twenty-seventh district of Sinza at Shanghai aforesaid.

   [4.] In or about the month of February 1898 the defendant falsely alleged that he was the owner of the said land the property of the plaintiff and instituted in the Native Court in the Chihsien of Shanghai as a plaintiff a writ against the above-named plaintiffs as aforesaid claiming possession of the said land.

   [5.] A suit was instituted by the Plaintiffs against the above-named defendant in H.B.M.'s Supreme Court for China and Japan on the 10th day of May, 1898, in case of trespass by the defendant on the said land.

   [6.] The defendant in his pleadings and by the counsel of his Counsel agreed to a perpetual injunction on the 6th day of June,1898, which injunction on record in this said Court admitted that he was not the owner of the said land.

   [7.] The defendant has by continuance since the said 6th day of June,1898, of the said suit in the court of the Chihsien of Shanghai damaged the plaintiffs and caused the arrest imprisonment and beating of Sung Zie Zie one of the plaintiffs.

   The Plaintiffs therefore claim:

   [1.] Five thousand taels damages.

   [2.] An Injunction ordering the defendant to cease the said suit instituted in the said Court as aforesaid to be withdrawn cancelled and annulled.

   [3.] Such further relief as the nature of the case may require.

   The answer of the defendant setteth forth as follows:

   [1.] The defendant admits the allegations contained in paragraphs 1, 2, 5, and 6 of the said Petition.

   [2.] The defendant does not admit the allegation contained in paragraph 3 of the said petition and leaves the same to be proved by the plaintiffs.

   [3.] The defendant denies the allegations contained in paragraphs 4 and 7 of the said petition.

   Mr. Wilkinson after reading the answer said: I would point out to your Lordship that Mr. Kingsmill does not admit the ownership of the plaintiffs but leaves it  to be proved and also denied the  damage and continuance of the action in the native court.

   Mr. Ellis - I would interrupt my learned friend at this point and would ask your Lordship to allow me to make an admission with regard to paragraph three.  I say my answer that I do not admit that. 

   If your Lordship will recollect, in the first suit brought in this Court on the 10th of May, at least the petition was filed on that day and the case tried in June, we consented to a formal judgment with regard to a trespass. I think, my Lord, in the face of that judgment - that formal judgment with regard to the trespass - I am in duty bound to admit that the plaintiffs are and have for many years been the owners and occupiers of this land.

   Mr. Wilkinson - The matter has already been before your Lordship and a perpetual injunction was made in the terms prayed for.  I had hoped, and my client had certainly hoped that would be the last we should hear of this claim to their land at Sinza. But your Lorrdship I think will remember, as it is stated in the report that I raised the question as regards the suit in the native city, and your Lordship said of course you could not make any direct order which would be binding upon the native authorities, but you said "it is scarcely necessary for me to say that as a question of morals it is manifest that Mr. Kingsmill having given up all claim to this property  he ought not to take or countenance any proceedings against the owners of what he now says he had no right to."

   That amounts, I think your Lordship, to an undertaking in Court and has the same effect and though it was included in the injunction itself, I am not going to argue that question but will merely mention that an undertaking made by a party or his counsel has the same effect and that a person acting in contravention of the plain meaning and intent of that undertaking can be committed to prison for contempt. A case reported, setting forth that an undertaking entered into with the Court wold have the effect of an injunction that can be made the subject of explanation is that of "The London and Birmingham Railway Company v. "The Grand Junction Canal Company," R.A.C.A 241, per Lord Cottenham.

   His Lordship - Where do you quote that from?

   Mr. Wilkinson - From Kerr on Injunctions, page 640 (third edition). The case brought by the plaintiffs is one involving similar issues to those in the action I have just quoted. 

   The suit by the plaintiffs is against Mr. Kingsmill for his wrongful act and the consequences of it. The wrongful act is undertaking that suit in the Court of the Chihsien in Shanghai after the record of this Court, the direct result of which has been that on the petition of that suit as originally filed by the defendant an attempt has been made to arrest three of the plaintiffs. One of the plaintiffs has been arrested, imprisoned, and badly beaten for refusing to settle the matter, that is for refusing to give up his land. He was arrested on a warrant which it said was in respect of the original suit, and I am here ready to give evidence, namely, by one of the plaintiffs against whom the suit was filed who had an opportunity of reading the petition, and by a copy of it, that it was instituted by or in the name of Mr. T. W. Kingsmill. 

   Mr. Kingsmill is in the position that he has not done that which he was bound legally and morally to do. Having instituted a suit in the Court of the Chihsien of Shanghai, having started a dangerous machine and put the law in motion against the plaintiffs I say he is liable for the direct consequences of that act. In this case Mr. Kingsmill either was or was not able to get the case against the plaintiffs off the file. If he was on the day the injunction was made, when the undertaking was made in open Court he was bound to do so. If he was not able all the greater his negligence all the greater his liability, for having instituted what in my opinion is a most unpleasant matter - a native law suit, it was his duty, somehow, to either stop that suit or get it stopped and compensate the plaintiffs for any injuries they may have suffered between the date of that injunction and the present time.

   It is a well-known principle that negligence consists not only of acts of commission but in acts of omission. It is every man's duty to forbear to bring a law suit unless he is right or had reasonable grounds to think he is right. Therefore it was Mr. Kingsmill's duty when he heard he was wrong to take such steps as would lead to a discontinuance of that suit.

   It is not enough for him to say he has done wrong. That is no relief to the plaintiffs. He was bound to right his wrong and get the native suit dismissed. It may be objected that this suit is not the same as the last suit, but it is not so. It has been laid down that you cannot by one suit settle all questions as to continuing trespass. If I bring a suit against a man for committing damage or trespass and he goes on obstructing my land or leaving cattle thereon he is again liable and I can bring a further action against him on these new facts. Historically this case is connected with the last one but on fresh grounds, inasmuch as fresh damage had been suffered by the plaintiffs. 

  Then as regards what has happened in the city I may mention the case of Harrison v. The Great Northern Railway Company, quoted on page 266, Law Journal, volume 33 (Common Law).  This is a case of a Company undertaking for their own profit to maintain a channel for carrying off water and by neglecting to do so effectually they were made responsible for damage done in seasons of unusual rainfall. Of course I merely quote this case to show that Mr. Kingsmill is in this case liable for what was unusual severity by the Shanghai magistrate in beating one of my clients. 

   Then there is the squib case Scott v. Shepherd). This was a case of passing a squib from hand to hand and the person who originally threw it was ruled liable for the direct consequences of that act. Then there is the case of Fletcher v. Rylands, a case of keeping a dangerous animal where the defendant was likewise ruled liable for certain consequences. 

   Then as regards the claim for damages for bodily injury and also compensation for the very natural expenses to which my clients have been put. Here are these unfortunate landowners, who are now admitted to be in possession of this land, and as a matter of fact have been so for a hundred years, getting the full force of the Shanghai yamen turned on them, and this has been going on for about a year. The amount they have had to expend in procuring for themselves the semi-liberty that they now enjoy, for the freedom of action I say, comes to a very considerable sum indeed.

   If it was necessary I could produce to your Lordship accounts, not exactly receipts, but I could tot up the items, which would show that the amount claimed, Tls. 5,000, is just compensation for the amount they have had to spend and their loss of time, and would leave a very small sum as compensation for their physical sufferings. I will call evidence to prove that one of the plaintiffs, Sun Zie Zie, has been arrested on a warrant, under the old suit sent to the Shanghai yamen. On arriving in the native city he was interrogated as to why he dared consult foreigners in a matter of this sort, and asked to give up his land. He said he would not, whereupon he was beaten and given 200 blows of a mature birch which I think will be to the permanent and continuing injury of my client. He is here under arrest and liable unless this case goes in his favour to be sent back to the city on the original suit brought in the name of Mr. Kingsmill.

   Sun Zie Zie, one of the plaintiffs, was put in the box, his evidence being interpreted as follows:

   I am one of the Sun family and live in Sinza. I remember the sixth of October; when the tipao and a runner came and said they wanted the family to go into the city about the land. The tipao spoke about a change of officials and said it would be well for me to send in a petition and get the former case settled. I told him the cased had been settled by the Chief Justice, and it was unnecessary. One of my family added that he would consult our lawyer and see if there was anything to settle and let him know.   On the third day the tipao came again and asked me to go to a tea-shop. I went and there found two runners from the city. I sat down with them, and shortly afterwards seven or eight Chinese soldiers appeared and took me to the city. No other members of my family were present, but they wanted two other members of my family also. I demanded to know on what authority I was being arrested, and they produced a piece of paper on which three names were written. I did not know the characters. One of my family was so scared that he ran away and has not been seen since, while another who was at the time drinking in a wine shop was not apprehended. 

   I was to have been taken before the City Magistrate on the seventh of October having been lodged in a public lodging house for two nights but the case was not heard until the 23rd of October.  In the meantime I was detained in the City gaol. When I appeared before the Magistrate I was asked why I did not hand over the property. I said, "the case has already been settled" when the Magistrate rejoined, "why did you sue about the matter outside"? I said to the magistrate, "the property is not mine alone. There are about ten families interested in it." The magistrate then ordered me to be flogged.  I don't know how many blows were ordered but I believe over 200. I fainted away.

   The magistrate afterwards asked me "would I hand over the property." I said "I will not."  There has been no further hearing of the case since. When I was arrested earlier in the year I was shown a document which alleged we had removed certain boundary stones, the document being instituted by Mr. Kingsmill. I cannot write Chinese. I was brought here this morning at the request of the British Consul and am in the custody of a runner.

   Cross-examined by Mr. Ellis - There were three names on the document when I was arrested the second time, being myself and two other members of my family. I was told I was being arrested on the same case but no mention was made of Mr. Kingsmill's name at that time. When I was taken before the "Chihsien" the last named wanted me to hand over the land to him, and settle the case.

   Re-examined - I understood that when I was asked to hand it over to the magistrate it was in order that he (the magistrate) might hand it over on his part to Mr. Kingsmill. The magistrate blamed me for having come to this Court and it was for so doing that I was flogged. No new case was mentioned by the Chihsien.

   Sun Ka-sun, brother of the plaintiff who had fled, said: I am one of the Sun family and remember the original arrest. The document produced I am familiar with. It is a copy of a warrant from the City authorities and contains a charge against our family of removing Mr. Kingsmill's boundary stones. I secured this document by paying for it, from a City yamen runner. It is easy to get copies of such warrants by paying the runner to whom the original document is addressed. My brother who has fled and whose name was in the document became affected in his mind. I don't know where he is now. Since my second arrest I have been in the city, and saw my cousin, the previous witness, in the gaol there.

   Sun Ah-Sun, another member of the family but not one of the plaintiffs said: I remember the tipao visiting our house. He wanted me to go to the city and settle the whole case. I said it had already been decided by the Chief Justice. That was on the 6th of October and I told him I should make enquiries. Two days later Sun Zie Zie was arrested but when the runner wanted to arrest me one of the soldiers said to the runner "if you have no tipao present you cannot do it." I then walked away. Sun Hoong Hai who was missing turned silly, and they had heard no news of him.

   This closed Mr. Wilkinson's case.

   His Lordship at noon decided to adjourn the further hearing until Thursday at half-past ten.

   Mr. Wilkinson - May I refer your Lordship to the case of the prisoner in attendance, who is still under arrest.

   His Lordship - With that, Mr. Wilkinson, I have nothing whatever to do.

24th November.

   The hearing of this case was resumed, M r. H. P. Wilkinson and Mr. F. Ellis representing the plaintiffs and defendant, respectively.

   Mr. Ellis in opening the case for the defendant said I will premise my remarks with the admission that when my learned friend opened the case for the plaintiffs yesterday I felt a considerable amount of alarm at having undertaken such a formidable task as representing Mr. Kingsmill in this suit. Besides seeking substantial damages for his clients, my learned friend made an allegation, which it was my duty to resist, hinting that my client, Mr. Kingsmill, had been guilty of such conduct as could only be construed as contempt of this Court. My learned friend contended and said he would show by evidence that Mr. Kingsmill had not done what he was legally and morally bound to do to carry out what was a direct undertaking given to this Court when the former case was heard before your Lordship in June last. But I think I shall be able to show conclusively that there is no legal or moral obligation arising out on that suit on my client which has not been faithfully discharged by Mr. Kingsmill so far as he was able.

   If the plaintiffs have sustained injuries at the hands of the Chinese authorities damage cannot be laid at the feet of the defendant, and the evidence that I shall bring today will clearly show that the defendant did not institute any suit in the Court of the Chihsien against the plaintiffs or the Chihsien against the plaintiffs or claim possession of their land since the last hearing and that he had not since that date done anything against the plaintiffs, severally or jointly.  If I am able to satisfy your Lordship on these points I think I am entitled to ask that the suit against my client be dismissed.

   Mr. Thomas William Kingsmill was then sworn and in reply to Mr. Ellis said: I am an architect and engineer and have been in practice in Shanghai since 1863. I was the defendant in an action for trespass brought here in June last, and I consented to judgment being entered against me. Part of that judgment was the following injunction:

Upon hearing Counsel for the Plaintiffs and by consent and upon reading the affidavit of Hiram Parker Wilkinson I do Order and Direct that the Defendant be restrained and do grant an Injunction restraining him from:

[1.] Applying at Her Britannic Majesty's Land Office for delivery out to him of various Chinese Documents, including a Shengko paper bill of sale, and by application deposited by the defendant in the said office and purporting to be muniments of title to the land wherein the trespass complained of in the Petition in this suit are alleged to be made.

[2.] Applying at any Consulate General or Consulate or other office for the registration of the said land in the name of the defendant and granting to him of a title deed or title deeds for the same until after the trial of this action or until further Order or the Order of a Judge.

   Since that date I have done nothing whatever in contravention of that judgment. It is absolutely untrue that I have ever instituted any suit against the plaintiffs in the Court of the City magistrate.

   Mr. Ellis hereupon read the following translation of the warrant under which the arrest of one of the plaintiffs was authorised:-

Warrant of arrest issued by me, Huang, District Magistrate of Shanghai.

   An English merchant named Kingsmill having complained to me that having entered certain government lands in the21st year of Kuang Hsu and received stamped Title Deeds thereof; whereas a tea-house called Wan Hsiang Lou, in the village of Sinza, is situated within the limits of that land, one Sun Hoong-has and others pulled up his boundary stones when they were set in place.

   At the request of Mr. Kingsmill to investigate the case and summon the parties concerned, I hereby command my runners and the local head borough (Tipao) to apprehend Sun Hoong hai and the others concerned in moving the boundary stones. An immediate order. Do not delay.

   Mr. Kingsmill continuing said: That warrant was issued entirely without my knowledge. I first heard that some of the plaintiffs in the former suit had been arrested, from Mr. Wilkinson. Two or three weeks before the suit was instituted - about May. I explained as well as I could the state of affairs to Mr. Wilkinson and I wrote to the Chihsien  that the man had been arrested without my authority. A press copy of that letter was read as follows:

Shanghai, 26th May, 1898

His HONOUR HUANG, Chihsien.

   SIR, - I have been informed that on my suit you hold in detention certain prisoners claiming to be the owners of the property in Sinza in the 20th division of the 27th district.

   The understanding on my purchasing the land was that I was to be placed in quiet possession. This has not been done, and I do not desire to be a party to what must seem an act of injustice. I have therefore requested that my name be withdrawn from the suit against the present occupiers.

Your obedient servant, (signed) Thos. W. Kingsmill.

   Witness resumed and said: I sent the letter with my card to the City and got the Chihsien's card back. I took further steps to obtain a release.

   On the 10th of June, I went with Mr. Ellis and Mr. Porter, an interpreter, and asked the Chihsien if he had these prisoners in custody and he replied in the affirmative. I said he had no authority to mention my name in connection with the suit as I had no complaint against them. I then asked him to release them as my name had been mentioned in connection with their arrest.  When I made this protest to the Chihsien as to the arrest of the prisoners he informed me that they had not been arrested on my complaint but on the complaint of the Chinese authorities. When I asked for their release I stated to the Chihsien the terms on which I wished them to be released. The terms are contained in this document and read:

Shanghai, 10th June,1898.

SUNG AND OTHERS v. KINGSMILL.

I consent to an adjournment of hearing on my clients being unconditionally released at once; i.e., no proceedings civil or criminal shall be taken against them for anything done - or alleged to have been done or omitted in regard to the facts referred to in the Petition filed in this suit in Her Majesty's Supreme Court and the warrant or warrants returned to me.

(Signed) H. P. Wilkinson.

      That document was signed by Mr. Wilkinson and the Chihsien promised to release the men on these conditions. With regard to the final paragraph as to the warrants being returned to me the Chishsien said the warrants were out and he had no power to return them, but he would have them cancelled. With regard to the statement in the seventh paragraph, that I have continued to sue, etc., I say I have never taken any steps, directly or indirectly, to obtain the possession of the land anywhere.

   His Lordship - That is hardly an answer to the question.

   Mr. Kingsmill - The statement that I have so done is absolutely untrue. I heard personally from Mr. Wilkinson a couple of weeks ago that the man had been arrested and he was going to sue me and this time it would mean imprisonment.

   Cross-examined by Mr. Wilkinson - You are a Chinese scholar and have been in China since 1863 and therefore have knowledge of native customs which is only gained by long residence in China? - Yes, I know a little. 

   You say in your letter to the Chihsien: "You hold in detention certain prisoners, etc." There was some letter by you to the Shanghai Chihsien relating to this land? - There was no letter. I have made no application about the land.

   Then what do the words "On my suit" refer to? I do not exactly understand. I have had no suit. I have a claim against the Chinese authorities for the land they sold me - for a certain piece of land, but not against any individual.

   His Lordship - Then why do you not say so? You had asked them to give up the land.

   Mr. Kingsmill - What happened was that they handed me the papers for a certain piece of land containing a certain number of mow, and they afterwards informed me that a portion of the land consisted of the plaintiffs' land. They sent me the ying-yus with the official plan which I lodged in the regular way with Mr. Scott when I applied for the title deeds.  He afterwards informed me that there was a difficulty about a certain portion of the land with certain people, and unless I settled that up he could not issue the title deed. I thereupon informed the Chihsien that he did not give me that particular piece of ground and consequently I could not get a title deed for the lot. He replied, "Very well, I will get you the ground." To this I replied that it would be all right if he did, but I was no party to the thing, though if he got me the piece of ground it could be registered. If not I could not register it.

   Mr. Wilkinson - In my original petition against you I think I alleged you had claimed the land. In present Answer Paragraph 7, sections 2 and 3 the defendant says that on learning that they declined to yield up possession of the land, he was not desirous of proceeding further and his counsel withdrew all claims to the land in question. Does not that refer to a claim by you? - I never had any claim against the plaintiffs. The authorities send me ying yus for a certain piece of land and I said "Very well, I cannot take any steps about the land until you give me the other piece."

   Mr. Wilkinson - Was it not on the map? - Yes, on the official map sent to me by the Chihsien.

   In paragraph 4 of your further Answer, you refer to "any further steps of any kind." Did not that mean that before that you had taken steps? - I simply sent in to see if they were disposed to give up the land.

   Did you inform, at any time, the Shanghai Chihsien that you would either have the land or your money back? - I never said anything about this land; what I said was that I would have the equivalent back if they failed to carry out their contract - their engagement to give me 38 mow.

   Did you on the 1st of June wrote to say "I have formally renounced my claim to be formally placed in possession of such land? - Yes, I formally notified the Chinese authorities of the fact.

   Since then have you continued to claim this land in the 27 pao or have your money back again? - Yes, I have asked for my money back or the equivalent in land to the 28th pao as stated in the title deed in H.B.M.'s Consulate.

   There is another branch of the Sung family in Sinza with whom you have had a certain amount of trouble? - I know nothing about any such trouble.

     Have you not been told that unless you renounce your claim to certain land there, there would be further law suits? - I know nothing about it. I gave a promise I would not apply for certain land, but it was in quite a different place.

   Is it not at Sinza - opposite to this land? - No, it is not.

   You simply want to claim from the Chinese authorities the performance of their contract? - I do.

   Have you got a copy of that contract? - No, it was attached to the application for the title deed.  It recited that in consideration of Tls. 20,000 that they would give me 38 mow in a certain district.

   Did you know, as an architect, of any places where there were 38 mow of free land in Snza? - Yes, I did.

   On the undertaking you gave you said you would not either directly or indirectly take any steps which would result in these people being turned out of their land? - Yes, that was my understanding of the whole case. It was upon that understanding that I signed the injunction.

   Is your compradore the son of the Shanghai Chihsien? - I do not know.

   Is he in the habit of writing chits to the native authorities about land business? - Very likely; he has no authority from me.

   Do you have a Chinese chop with the name of your hong to be placed on communications to Chinese if needed? - The only chop I have is simply a chop for identification which I put on rent receipts; but I always sign rent receipts myself as well.

   Therefore any communications with the Chinese authorities are done by yourself? - Are done by myself.

   Does it not occur to you that on pressing the first suit through the Chinese authorities, with your knowledge of Chinese business, you were pressing against the Sung family. - I have never pressed a suit. I merely pressed for a certain amount of land. I never raised any claim to their land and as distinctly noted I was precluded from dealing with it under the circumstances.

   Re-examined by Mr. Ellis - I have obtained title deeds before for land for which I handed in ying yus. It was not irregular.

   Mr. John Porter said - I am a clerk of the firm of Messrs. Browett and Ellis Solicitors. On the 10thof June last I went with Mr. Kingsmill and Mr. Ellis to the native city where we saw the magistrate and petitioned for the release of the members of the Sun family. They were in custody in the city magistrate's yamen and were plaintiffs in the former suit. Mr. Kingsmill protested against the arrest of the men stating that if they had been arrested in his name it was done without his authority. The Chihsien then said they were not arrested at Mr. Kingsmill's instance but at the instance of the Chinese authorities. The Chihsien after perusing the document produced agreed after a first reference to grant their release. He said in reply to Mr. Kingsmill that he could not return the warrants but he would have them cancelled. 

By Mr. Wilkinson - I did not understand that by the term "Chinese authorities" the Shengko office was meant. I thought it referred to the Viceroy.

   Mr. Ellis said - In closing this case for the defendant I have a very few words to address to your Lordship. I only want to bring to your Lordship's attention this one point raised in the cross-examination of Mr. Kingsmill.

   My learned friend has attempted to show that Mr. Kingsmill has not fulfilled the undertaking given by him through me to this Court. I submit on the evidence produced this morning Mr. Kingsmill had done so.  Mr. Kingsmill has referred to a contract which he made with the Chinese authorities for the purchase of land.  I submit most respectfully that so far as Mr. Kingsmill was concerned he was justified in pressing his claim against the Chinese government. They had distinctly made a contract with him for the sale of a certain amount of land in a certain  district and under that contract Mr. Kingsmill has stated in evidence that he paid the Chinese Government, or the Chinese authorities, a certain amount of money and I submit under that contract Mr. Kingsmill was justified in applying to the Chinese Government to say either you fulfil that contract that they were to deliver a certain amount of land for a certain district and Mr. Kingsmill has shown by his evidence that he said he would not lay any further claim to the land in dispute.

   So far as he is concerned he has taken every step to do what he could. If he had in the first instance done any harm or wrong to the plaintiffs he has shown today and his evidence is corroborated by the evidence of Mr. Porter, that he did everything he could to protect the plaintiffs from further wrong or injury. It is very unfortunate if these plaintiffs have suffered in the way they have been represented to have suffered but I cannot see that those sufferings can be placed at the door of Mr. Kingsmill.

   Mr, Wilkinson in reply said - My learned friend has dwelt greatly on my point regarding the undertaking given before this court and the moral and legal effect of it, but what I claim is damages for negligence an injunction ordering the defendant to cause the suit in the City to be cancelled, withdrawn and annulled. I need not labour the point that Mr. Kingsmill did start certain proceedings against the Sun family in the native Chihsien's yamen.  No doubt has been cast upon the truth of the issue of the warrant and a very vivid description been given of the sufferings endured by one of the plaintiffs in consequence of that warrant.

   His Lordship - The only evidence is that they were arrested and shown a bit of paper with three names on it and nothing else.

   Mr. Wilkinson - Yes, but when he asked what he was being arrested for he was told it was in the old case.  There was no dispute between the members of the Sun family and any foreigner except the trouble on which they were originally arrested and there was no doubt that they were originally arrested on a warrant, a copy of which is in Court, which distinctly states that it was on the petition of Mr. Kingsmill.

   My point is that Mr. Kingsmill is responsible for the injury to my clients inasmuch as it was he who commenced the proceedings against them. I don't allege and it is quite unnecessary for me to prove that Mr. Kingsmill presided over the detailed procedure or that it was under his control. That is not my case at all. But he gave a wrong impulse to the action of the law and he is responsible for the consequences. Under Chinese law a man is liable in a civil case to be re-arrested and beaten. That, Mr. Kingsmill from his knowledge of China ought to have been aware of, whether he was or was not, he is responsible for the consequences and I sue for the wrong done to my clients.

   In my cross-examination Mr. Kingsmill said it did not suit him, to have this man arrested but he did not in one jot or title give in as regards his claim to the land on a certain map. Mr. Kingsmill can hardly expect to buy waste land in Sinza which has been a most thickly populated district ever since the rebellion, and in continuing his claim to a specific performance of his contract with the Chinese authorities he was just as much suing these defendants in the Chinese Court as he was in his original application whatever form that took.

   His Lordship - You have given no evidence as to there being no waste land there. The only evidence is that there was. 

   Mr. Wilkinson - Apart from the fact whether there was or was not I say that in pursuing for a specific performance of his contract, he was practically as I think it tuned out, trying to dispossess the plaintiffs of their land.

   His Lordship - What Mr. Kingsmill said was "equivalent land or money." He did not claim this particular land and told them he could have nothing more to do with the claiming of it, but he must have the equivalent land or money.  That is the evidence before me.

   Mr. Wilkinson - It must have been obvious to Mr. Kingsmill that it was easier for the Chinese authorities to claim the land. My view is that Mr. Kingsmill is a sensible man and as a man who has been so many years in China, must have known that any further application on this particular contract with the Chinese authorities must result in either the dispossession of, or the maltreatment and imprisonment of the defendants. Having started a proceeding he is responsible in the same way as I said of the water case and the keeping of a dangerous animal quoted yesterday. Had it not been for the institution of that suit one of my clients would not have been taken into the city and beaten. Mr. Kingsmill is a primary cause of that beating. He was bound to prevent it, he has not prevented it, he is bound to prevent it in the future and he is bound to compensate them for the injury. I will refer you to a case published in "Smith's Leading Cases" which says that everyone who does an unlawful act is considered as the doer of all that follows.

   His Lordship - You cannot call the institution of a suit an unlawful act.

   Mr. Wilkinson - If it turns out to be absolutely on wrong grounds.

   His Lordship - A man may institute a suit and finally discover he has not a good title. He admits he had no title but you cannot call that an unlawful act. That is not the meaning of this case.

   Mr. Wilkinson - Well, part of this trespass is the institution of the suit in the native city.

   His Lordship - A man may institute a suit in any Court in the world. That is not an unlawful act to my mind. If you could prove that he had done it maliciously knowing he had no claim it might be an unlawful act, but you cannot do that.

   Mr. Wilkinson - In conclusion I ask your Lordship to make such an order as will result in the removal of the suit against the plaintiffs in the city with damages for the suffering and injury caused them.

   His Lordship reserved judgment.

 

Source: North China Herald, 5 December, 1898

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 1st December.

SUN HOONG HAI AND OTHERS v. T. W. KINGSMILL.

JUDGMENT.

   His Lordship gave judgment in this case, Mr. H. P. Wilkinson appearing for the plaintiffs and Mr. Francis Ellis for the defendant.

   His Lordship read the petition as follows:

   [1.] That the plaintiffs are Chinese subjects residing in Sinza at Shanghai in the Empire of China.

   [2.] The defendant is a British subject, a civil engineer and architect, resident at Shanghai aforesaid.

   [3.] The plaintiffs are and for many years have been the owners and occupiers of certain land situated in the tenth division of the twenty-seventh district of Sinza at Shanghai aforesaid.

   [4.] In or about the month of February 1898 the defendant falsely alleged that he was the owner of the said land the property of the plaintiffs and instituted in the Native Court of the chihsien of Shanghai as plaintiff a suit against the above-named plaintiffs as defendants claiming possession of the said land.

   [5.] A suit was instituted by the plaintiffs against the above-named defendant in H.B.M.'s Supreme Court for China and Japan at Shanghai on the 10th day of May,1898, in a cause of trespass by the defendant on the said land.

   [6.] The defendant in his pleadings and by the consent of his Counsel agreed to a perpetual injunction made by the said Supreme Court on the 6th day of June,1898, which injunction on record in the said Court admitted that he was not the owner of the said land.

   [7.] The defendant has by continuance since the said sixth day of June, 1898, of the said suit in the said Court of the chihsien of Shanghai damaged the plaintiffs and caused the arrest imprisonment and beating of Sun Zie Zie one of the said plaintiffs.

   The plaintiffs therefore claim:

   [1.] Five thousand taels damages.

   [2.] An injunction ordering the defendant to cause the said suit instituted in the said court as aforesaid to be withdrawn cancelled and annulled.

   [3.] Such other relief as the nature of the case may require.

   His Lordship continuing said - The defendant admitted either in his pleadings or by Mr. Ellis who represented him all the allegations of the petition except paras. 4 and 7. The reason given by the defendant for denying that he continued his suit against the plaintiff was that he had never instituted one. It was proved that the City Magistrate considered that the defendant had instituted a suit against the plaintiffs and a letter from the defendant to the City Magistrate was put in which was couched in these terms:-

Shanghai, 28th May,18998

His Honour Huang, Chihsien.

SIR, - I have been informed that on my suit you hold in detention certain prisoners claiming to be the owners of the property in Sinza in the 10th division of the 27th district. The understanding on my purchasing the land was that I was to be placed in quiet possession. This has not been done, and I do not desire to be a party to what musty seem an act of injustice. I have therefore to request that my name be withdrawn from any suit against the present occupiers.

(signed) Thos. W. Kingsmill.

   I therefore hold that the defendant did institute a suit as alleged in para. 4 of the Petition.

   I now come to para. 7. No evidence has been given that the defendant by any active means continued to press his suit against the plaintiffs after the 6th of June,1898. But on the other hand the defendant did not allege that he had taken any active steps to stop that suit after the hearing of the former suit by the same plaintiffs against him. It will be observed that the letter of 26th of May does not ask that all proceedings against the defendants should cease but merely that Mr. Kingsmill's name may be "withdrawn from any suit against" the plaintiffs. Again when the defendant went into the City on the 10th of June what he seems to have been most anxious about was that his name should not be associated with the arrest and imprisonment of any of the plaintiffs and he seems to have obtained their release.

   Now considering that in the former suit by the same plaintiffs against Mr. Kingsmill a large claim for damages was abandoned or not considered by the Court, in consequence of what Mr. Ellis then said, it is necessary to consider the terms of what this Court at the time treated as an undertaking by Counsel. Mr. Wilkinson was asking by his petition and in Court that certain other things besides the consent to the formal injunction should be required of Mr. Kingsmill. Mr. Ellis who represented Mt. Kingsmill then as he does now said:

"I know as a matter of fact that the Shanghai Magistrate has given an undertaking that he will not take any proceedings civil of criminal against the plaintiffs for any acts alleged to have been committed or arising out of this action."

And I said that I considered that the undertaking should be accepted, the plain meaning being that as there was such an undertaking as this nothing further was required. But no one could imagine that this Court would brush aside all the plaintiffs' demands simply because certain words had been written or uttered by the Shanghai Magistrate. I certainly understood that such an undertaking as Mr. Ellis described would be carried out and that Mr. Kingsmill would take active steps if necessary to see that it was carried out.  Mr. Kingsmill did not allege that he had taken any such steps.

   The evidence before me therefore does not warrant my finding that Mr. Kingsmill actively continued his suit against the plaintiffs, but it amply justifies me in saying that he did nothing to discontinue it, and he did nothing to see that the undertaking of the Shanghai Magistrate was carried out. He is in the position of a man who has apparently the means of preventing a wrong from being committed, standing by and not using those means to prevent it, although the fact of his having those means was a consideration on which the injured party gave up certain claims against him.  From this it appears that para. 7 of the petition has not been proved for I cannot upon the evidence before me say that -

The defendant has by continuance since the said 6th of June,1898, of the said suit in the said Court, of the chihsien of Shanghai damaged the plaintiffs and caused the arrest imprisonment and beating of Sun Zie Zie of the said plaintiffs."

I do not intend however to decide anything which would prevent the plaintiff Sun Zie Zie who was actually taken to the City and beaten from bringing any action which he might be advised to bring, nor do I express any opinion as to the advisability or result of such an action. 

   I think the plaintiffs are entitled to the injunction they ask and thus it should be drawn up in such terms so as to enjoin on the defendant the active performance of such things as will bring so far as he is able the proceedings against the defendants to a close, and that he should be enjoined to take the best measures he can towards the carrying out of the undertaking which Mr. Ellis described in Court on the 22nd June last. 

   There must also be costs against the defendant, which I assess at $500 including Court fees.

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