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Colonial Cases

Vigar v. Newman, 1899

[civil procedure]

 

Vigar v. Newman

Supreme Court for China and Japan
Hannen CJ, 5 April 1899
Source: North China Herald, 10 April 1899

 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 5th April.

Before Sir Nicholas J. Hannen, Chief Justice.

IN RE VIGAR v. NEWMAN.

   This was a motion in an action brought by Charles Vigar against Lieut. Colonel Norris Newman and it was sought to dismiss the petition as filed in the suit on the ground that the facts stated therein did not disclose anything that would support an action at law.

   Mr. Morgan Phillips moved in behalf of the defendant and Mr. Francis Ellis represented the plaintiff.

   Mr. Phillips read the petition as filed in the original suit which was as follows:

   [1.] The plaintiff is a British subject and a journalist residing in Shanghai.

   [2.] The defendant is also a British subject and editor and part proprietor of the Shanghai Daily News.

   [3.] The defendant on the 13th day of March 1889 gave the plaintiff into the custody of a policeman and caused the plaintiff to be taken and detained at the Central Police Station for a short time; after which no charge being made against him he was released.

   The Plaintiff therefore prays:

   [1.] That the defendant may be ordered to pay the sum of Tls. 2,000 as damages.

   [2.] And that the defendant may be further ordered to pay the costs of the suit.

   Counsel contended that this did not disclose any ground of action. He presumed the ground of action intended was that of false imprisonment. If that was the action intended he submitted that it was not disclosed in any way in the petition. There should most certainly be an allegation of false imprisonment. There was no such allegation in the petition, but simply a statement that the plaintiff was given into the custody of a policeman.  There was no reason, so far as he knew, why the plaintiff might not have been given into the custody of the police and taken to the station and there was, as it was afterwards stated, no charge preferred against him. Possibly a person might have committed some offence or be supposed to have committed some offence and been taken to the police station and there circumstances might have arisen very rapidly so as to lead the person who gave him into custody not to prefer any charge against him at the police station. But he contended that in the petition there should be stated some allegation of false imprisonment, but there was no such allegation; what was to be his answer? He would have to put in an answer to the petition in the ordinary course, but he did not know what case he had to meet. He admitted he would have to acknowledge these were facts but he had no case to go on.

   His Lordship asked if it would not be better to put into the paragraph the words "whereby defendant falsely imprisoned the plaintiff."

   Mr. Phillips replied that that would be an indication of what he had to meet but in its absence he submitted that the petition disclosed no grounds of action and that was very material. He, of course, had not had much experience of the practice in Shanghai.

   His Lordship remarked that they followed the practice at home. Perhaps it would facilitate matters if Mr. Phillips looked at the record because it was a case in forma pauperis. Therefore he suggested that the words "whereby defendant falsely imprisoned the plaintiff" be added to the petition.

   Mr. Ellis said he was quite prepared to do so. He wished however to address His Lordship and state that he did not want the public to think that he was in any way careless in drawing up his pleadings. Mr. Phillips had thought fit to raise the legal objection but he would like to satisfy His Lordship that he had not committed himself in any respect. He was prepared to accept the suggestion.

   Mr. Phillips explained that he was not   making this motion in a fractious spirit but he really thought the petition ought to disclose some ground of action and as he would have to prepare an answer it was necessary that it should be drawn up properly. He submitted that there was no ground of action in the petition and he would formally ask that it be dismissed.

   Mr. Ellis said the petition had been drawn up according to the rules of the Court.

   Rule 27 states that "a petition shall contain a narrative of the material facts, matters and circumstances on which the plaintiff relies, such narrative being divided into paragraphs numbered consecutively, and each paragraph to contain as nearly as may be, a separate and distinct allegation and shall specifically state the nature of the relief that the plaintiff may think he is entitled to, and also such other general relief. The petition must be as brief as is consistent with a clear statement of the facts with which  the prayer is sought to be supported."

   Mr. Ellis continuing said that, in drawing the petition it was his duty to state those facts which in his opinion gave his client a claim to damages and to state the facts which in his opinion imposed on the defendant liability to pay them.

   It would be for His Lordship to decide when those facts were proved what were the legal rights and liabilities of the parties respectively. He submitted that it was unnecessary to add "wrongful" or "improper" or "without justification," and that the facts as stated in the petition showed that a legal right had been infringed and in the infringement of such legal right he contended that the plaintiff was entitled to claim damages.

   His learned friend was quite right in presuming that the action was for false imprisonment. That was the real nature of the action but because he had not used these words he failed to see that Mr. Phillips was entitled to come to the Court and ask His Lordship to dismiss the petition. He was quite ready and willing to accept His Lordship's suggestion, but if His Lordship was going to decide that the petition should be amended in any respect he would ask at that stage to amend his petition by adding certain words which would make the claim for damages and the nature of the action perfectly intelligible to his learned friend.

   Mr. Phillips said that for all he knew it might be an allegation of malicious arrest.

   His Lordship thought Mr. Phillips was right in his contention and that it would be better to amend the petition.

Mr. Ellis asked to be allowed to add after the words the 13th day of March, "maliciously and without reasonable or probable cause"; and after a further paragraph to be number four "in consequence of being so given into custody the plaintiff has suffered damage and disgrace."

   His Lordship said there was no object in dismissing the appeal and he should allow the amendment.

   Mr. Philips made no objection.

   His Lordship said he would leave the costs to be costs in the case. As it was in forma pauperis the defendant would not be able to recover any costs from plaintiff.

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