King of the Two Sicilies v Willcox and Others
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1851 |
| Date | 31 January 1851 |
| Court | High Court of Chancery |
English Reports Citation: 61 E.R. 116
HIGH COURT OF CHANCERY
S. C. 19 L. J. Ch. 488; 14 Jur. 751.
Production of Documents. Principal and Agent. Defendant. Discovery. Penalties. Witness. Foreign Sovereign. Parties and Pleading. Earmark. Corporation.
[301] the king of the Two sicilies v. willcox. Jan. 16, 31, 1851. [S. C. 19 L. J. Ch. 488 ; 14 Jur. 751.] - Production of Docwnents. Principal and Agent. Defendant. Discovery. Penalties.. PPitness. Foreign Sovereign. Parties and Pleading. Earmark. Corporation. During a revolution in Sicily the revolutionary Government sent two of the Defendants, who were natives and inhabitants of Sicily, as envoys to this country, and afterwards remitted to them monies which had been contributed by many thousands of the inhabitants of Sicily, with directions to purchase a steamship therewith; and the Defendants applied the monies accordingly. The lawful sovereign of Sicily, after he had re-established his authority, filed a bill claiming the ship, which still remained in the port of London. The Defendants, in their answer, admitted the possession of documents relating to the matters in the bill, but said that they held them as the agents and on the behalf of the persons who intrusted them with the monies, and submitted that, in the absence of such persons, they ought not to be ordered to produce the documents. 1 SIM. (N.S.) 302. KING OF THE TWO SICILIES V. WILLCOX 117 The Court, however, made the order, because the Plaintiff represented the contributors of the monies; and, the revolutionary Government being at an end, the Defendants had either ceased to be agents or trustees for anyone, or had become agents or trustees for the Plaintiff. A Defendant, a foreigner sojourning in this country, declined to produce documents, - - because they would expose him to criminal prosecution in his own country; but the Court made the order. A Defendant or witness, if interrogated as to matters tending to criminate him, may decline to answer at any time, notwithstanding what he has disclosed may be sufficient to convict him. The decision in Ewin v. Osbaldistan, 6 Sim. 608, disapproved of. The Government formed during a revolution in Sicily seized upon the King's treasure and remitted part of it to persons in this country to purchase steamships; and they applied the remittance accordingly. Held, that the King, who had re-established his authority, was entitled to sue for one of the ships, which remained in the port of London, and that the persons who made the remittance were not necessary parties to the suit. An incorporated company demurred to a bill, because the discovery thereby sought might subject it to criminal prosecution under the 59 Geo. III. c. 69 (to prevent the enlisting of His Majesty's subjects for foreign service, and the fitting out, in His Majesty's dominions, vessels for warlike purposes without his licence). The Court held that a corporation was not liable to be indicted under that Act, and overruled the demurrer. The bill was filed in December 1849 against the Peninsular and Oriental Steam-packet Company and L. Scalia and F. M. Granatelli and certain other persons. It stated, among other things, that in the early part of 1848 certain persons, subjects of the Plaintiff, usurped the Plaintiff's authority and regal functions, and established in Palmero a government constituted of the Plaintiff's subjects, which assumed the administration of public affairs in Sicily, and continued to exercise [302] it until April 1849; that the usurping Government seized the Plaintiff's Koyal Public Treasury in Palermo, and took possession of all the monies therein, and of all monies which were paid into the same, being part of the Plaintiff's Royal revenues, thenceforwards until April 1849; that, shortly before July 1848, the ministers of the usurping Government appointed Granatelli and Scalia, both of whom were the Plaintiff's subjects, to be their agents in England; and Granatelli and Scalia proceeded to England as such agents; and shortly before, or at the beginning of July 1848, they, by the direction and on the behalf of the usurping Government, entered into a contract with the Peninsular and Oriental Steam-packet Company for the purchase of two steamships, one of which was built and nearly completed, and the other was being built; and that such contract was reduced into writing, and dated the 1st of July 1848, and was signed by the secretary of the company on behalf of the company, and by Granatelli and Scalia; and Granatelli and Scalia, who were therein described as commissioners for the Sicilian Government, thereby agreed to buy, and the Steam-packet Company thereby agreed to sell, the steamship called the " Vectis," built at Cowes, for 45,000, and another steamship which was then being built for the company at Northfleet, and was afterwards called the " Bombay," for 60,000, to be paid by certain instalments, the second instalment to be paid when the two steam-vessels should be completed for sea, so far as related to the company, in the same state as contracted for by the builders ; and any alterations required by the purchasers for war purposes were to be made by them at their own expense ; that in the margin of the contract was written the following memorandum:-"It is stipulated by the contracting parties that this agreement is subject to ratification by the Sicilian Government, in all [303] July current." That the usurping Government was informed of the contract, and on the 20th of July 1848 declared that it ratified the same; that Granatelli and Scalia having been informed of such ratification, a memorandum was, on the 7th of August 1848, indorsed on the contract and signed by them, and by the secretary to the Steam-packet Company on behalf of the company, in the following words:- "The Sicilian Government having, under date Palermo, the 20th of July 1848, 118 KING OF THE TWO SICILIES V. WILLCQX 1 SIM. (N.S.) 304. ratified the within agreement, the same is now declared to be valid and in full force. London, 7th August 1848." That by the words "The Sicilian; Government" was meant (as the Steam-packet Company well knew) the persons who had usurped the Plaintiff's authority, and were then assuming and exercising the offices and functions of his ministers : that the " Bombay " had since been so far completed as to be ready for sea : that in the latter part of July and iu August 1848 the usurping Government, and persons for the time being acting under the alleged authority thereof, from time to time applied divers sums of the Plaintiffs revenues, being monies paid into His Royal Public Treasury at Palermo of which they had taken possession as aforesaid, in purchasing or procuring bills of exchange, for the express purpose of such bills!being remitted to England, and applied towards completing the purchase of the steamships; and the persons for the time being acting under the alleged authority of such Government' procured such bills to be so made out or indorsed as to be payable to the order of Granatelli and Scalia; and the persons acting under such alleged authority remitted the same bills to Granatelli and Sealia, with directions to apply the same towards completing the purchase of the steamships; and they received such bills, and applied the same or the amount thereof in paying to the Steam-packet Company [304] (who well knew how and whence the said money was obtained) the instalments payable under the contract and certain other sums in respect of the purchase; that the Steam-packet Company delivered the " Vectis " to Granatelli and Scalia, or to certain officers and sailors employed by them; and the same ship was, pursuant to directions given by Granatelli and Scalia as agents of the usurping Government, taken away in March 1849 from England to, and the same had ever since remained in, parts beyond the seas; that the " Bombay" had, ever since the building thereof was completed, been and still was in the port of London, and the same remained until May 1849 in the possession or under the power of the Steam-packet Company: that in April 1849 the Plaintiff's lawful authority was re-established in Sicily, and the Plaintiff had thenceforth continued in the undisturbed exercise of such authority; that monies taken from the Plaintiff's Royal Public Treasury at Palermo, and which belonged to the Plaintiff as such sovereign as aforesaid and bills purchased or procured with: such monies having been, with the knowledge of the Steam-packet Company, applied in or towards paying the purchase-money for the "Vectis" and the "Bombay," the Plaintiff became entitled to require the delivery to him of the same ships, and was still entitled to have the "Bombay" delivered to him: that the Steam-packet Company entered into the contract for the sale of the steamships with full notice and knowledge that Granatelli and Scalia were acting therein on behalf of the usurping Government; and the same company received all payments made to them in respect of the purchase-money for the same ships with full notice and knowledge that such payments were made with, or by means of, monies taken out of the Plaintiff's Royal Public Treasury at Palermo, and belonging to the Plaintiff as such sovereign as aforesaid. The bill charged that [305] the Defendants had then, or at some time had in their custody, possession or power, the before-mentioned contract, and divers letters and other communications which had passed between some of the Defendants and others of them, and between the Defendants or some or one of them, and their or his agents or agent, and between the Defendants or some or one of them, and some other persons or person; and divers deeds, documents, books, accounts, letters, copies of and extracts from letters, and divers memorandums, papers and writings relating to the matters thereinbefore mentioned, or some of them; and that if the same were produced the truth of the...
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