Shanghai, 23rd November.
Before Sir Nicuozas J. HANNEN, Chief Justice.
Sun Hooxc-oar up opens v. T. W.
This was an action arising out of a case heard in June last when' four Chinese subjects members of the Sun family at Sinza obtained an injunction against the defendant, a civil engineer and architect, of Shanghai, for trespassing their land. It was now alleged that the defendant by, not staying certain proceedings he had instituted in the native 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 plaintifis. 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 26th day of October 1898. Between Sux Boone-nar, Sow Zre-z1e, Sow Cxox-woo, and Sox Quar-roe, plaintiffs and 'THomas Wantiast Knvas-
To Sin Nicaoras Joun Haxnen Chief Tustico of Hor 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 residing in Sinza at Shanghai in the Empire of China, 2,—The defendant is a British subject, a civil engineer and architect resi hai aforesaid. have been the owners and occupiers of certain 3.—Tho plaintiffs are and for many years Iand situated in the. tenth division of the twenty-seventh district at Sinza-at Shanghai aforesaid.
4.—In or absitt 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 a plaintiff a suit against the above named plaintiffs as dofendants claiming possession of the said land.
5,—A suit was instituted by the Plaintiffs against the above named defendant in HOB M's Supreme Court for China and Japan at Shanghai on the 10th day of May, 1898, in of trespass by the defendant on the '6.—The defendant in his pleadings and by the consent of his Counsel, agreed to a injunction made by' the said Court on the 6th day of Juno, 1898, unction on record in the ssid Court admitted that he was not the owner of the said land.
'J—The defendant has_ by oe since the said sixth day of June, 1 suid suit in the said court of the Chihsien of Shanghai damaged the plaintiffs and caused the arrest imprisonment and beating of Sung Zie-zie one of tke said plaintiffs.
The Plaintiffs therefore claim 1.—Five thousand tacle dams 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 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 '2,-The defendant. does not admit the tion contained in paragraph 3 of the tition and leaves the same to be proved by the plaintiffs. 3 '3.—The defendant denies the allegations contained in paragraphs 4.and 7 of the said petition. core Mr. Wilkinson after reading th said': I would point out to your Lordship that Mr, Kingsmill does not admit. the ownership of the plaintifis but leaves it to be proved and also denies 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 in 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 Jun we consented to a formal judgment wi regard 10a trespass. I think, my lord, in the fac" of that judgment—that formsl judgment with regard to the trespass, Tam in duty bound to admit that the plaintiffs are and have for many years been the owners and occupiers of this land.
Mr.. Wilkinson—This matter has already been before your "Lordship and a perpetual injunction was made in the terms prayed for. I had hoped, and my clients certainly hoped that would be the last we should hear of this claim to, their land at Sinza. But your Lordship 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 countenanceer helping any way proceedings against the owners of what he now says he has no right to." That amounts, I think your Lordship, to an undertaking in Court and hus the same effect as though it was included in the injunction. it Tam not going to argue that question bat will merely mention that an undertaking made by a party or his counsel has the same effect and that a person acting in cone tra vention 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 to with the Court will 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" RA. GA., 241, per Lord Cottenham, 3 His Lordship—Where do you quote'that Wilkinson—From Kerr on Injunctions page 640 (third. edition). The case brought by the plaintifis is one involving similar. issues. to the-e in the action I have just quoted The: suit brought by the plaintiffs is against Mr. Kingsmill for his wrongful act and the consequences of it. The wrongful act is undertaking that suiting the Court of the Chi-Asien in Shanghai after the record of this Court, the direct result of-which has been that on the petition of that suit as origi-mally filed by the. defendant an attempt has been.made to arrest three of the plain: tiffs. 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'sm here ready to give evidence, namely, by one of the per-against whom the suit was filed who and by a copy. of it, that it was insti tated 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 todo. Having in: stituted a suit in the Court of the Chihsien of Shanghai, having started " 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 notable to get the case against the plaintiffs off the file. If he was on the day the injunction was made, when that undertaking was made in open Court he was bound to dogo. 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 lawsuit, it was iis duty, somehow, to either stop that suit or get it stopped and compensate the plaintiffs for the injuries they have suffered between the date of that injunction and the present time. It is a well-known principle that negligence consists acts of commission but in acts It is every man's duty to forbear to bring a lawsuit unless he is right or has reasonable grounds to think ho is right, Therefore itwas Mr. Kingsmill's duty whence found he was wrong to take such steps as would lead to a discontinuance of that suit, Itisnot 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 the same as the last suit, but it-is not so. It has been laid down that you cannot by one suit settle entirely all questions as to continuing trespass. If I. bring a suit against x. man for committing damage or trespass and he goes on obtructing my Innit or leaving cattle thereon he is again liable and I can bring a further action against him as on these new facts, Historically this case is connected with the last one but on fresh yrouridé, inasmuch as fresh damage. has been suffered by the plaintiffs. Then as regards what has happened in the city I may montion the case of Harrison v. The' Great Northern Railway Company, quoted qn page 268, Law Journal,, volume $3 (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 sone by reason of unusual rainfall. Of course I morely quote this case to show that Mr. Kingsmill is in case linble' for what was unusual severity on the part of the Shanghai magistrate in beating one of my clients. 'Then there. is. the squib' cava (Scott v. Shepher-l). This was a case of passing " squib from hand to hand and the orson who originally threw it was ruled. lable for the direct consequetices of that act. Then there is the case of Fletcher Rylands, a case of keeping a dangerous rumal where the defendant was likewise ruled linble for certain consequences. Then as regards the claim for damages for bodily injury and also compensation for the very natural expense to which my clients hwe been put. Here -are these unfortunate landowners who are now admitted to be in possession of this land, and as matter of fact have been for a hundred years, getting the full forco'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 their 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 very small sum as compensation for their physical sufferings..I will call idence to prove that: one of the plaintiffs Sun Zie-zie has been. arrested on a warrant, under the old suit and sent, to the Shanghai yamen. On arriving i the native city he was interrogated, to why he dared to consult foreigner a matter of this sort, and-asked to give up his land. He said he would not, where-
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