Mostyn v Fabrigas
| Jurisdiction | England & Wales |
| Judgment Date | 14 November 1774 |
| Date | 14 November 1774 |
| Court | High Court |
English Reports Citation: 98 E.R. 1021
IN THE COURT OF KING'S BENCH, CHANCERY AND COMMON PLEAS
S. C. Sm. L. C. (1903 ed.) vol. 1, p. 591. Dictum disapproved, Hill v. Bigge, 1841, 3 Moo. P. C. 476. Referred to, Hart v. Gumpach, 1872, L. R. 4 P. C. 464; Musgrave v. Pulido, 1879, 5 App. Cas. 107; In re Hawthore, 1883, 23 Ch. D. 747; Ewing v. Orr-Ewing, 1885, 10 App. Cas. 522; Companhia de Mocambique v. British South Africa Company [1892], 2 Q. B. 361; [1893], A. C. 602; Adam v. British and Foreign Steamship Company [1898], 2 Q. B. 432.
Cl61] mostyn versus fabrigas. Tuesday, Nov. Htb, 1774. Trespass and falselM;/'.j^ imprisonment lies in England by a native Minorquin, against a governor of Minorca, for such injury committed by him in Minorca. [S. C. Sm. L. C. (1903 ed.) vol. 1, p. 591. Dictum disapproved, Hill v. Bigge, 1841, 3 Moo. P. C. 476. Referred to, Hart v. Gumpach, 1872, L. R. 4 P. C. 464 ; Musgrave v. Pulido, 1879, 5 App. Gas. 107 ; In re Hawthorne, 1883, 23 Ch. D. 747; Swing v. Orr-Euring, 1885, 10 App. Gas. 522; Go-mpanhia de Mozambique v. British South Africa. Company [1892], 2 Q. B. 361; [1893], A. C. 602; Adam v. British and Foreign Steamship Company [1898], 2 Q. B. 432.] On the 8th of June, in last term, Mr. Justice Gould came personally into Court, to acknowledge his seal affixed to a bill of exceptions in this case; and errors having been assigned thereupon, they were now argued. This wa an action of trespass, brought in the Court of Common Pleas by Anthony * Ante, 130. 1022 MOSTYN V. FABRIGAS I COWP. 162. Fabrigas against John Mostyn, for an assault and false imprisonment; in which the plaintiff declared, that the defendant on the first of September, in the year 1771, with force and arms, &c. made an assault upon the said Anthony, at Minorca, (to wit) at London aforesaid, in the parish of St. Mary le Bow, in the ward of Cheap, and beat, wounded, and ill-treated him, and then and there imprisoned him, and kept and detained him in prison there for a long time, (to wit) for the space of ten months, without any reasonable or probable cause, contrary to the laws and customs of this realm, and against the will of the said Anthony, and compelled him to depart from Minorca aforesaid, where he was then dwelling and resident, and carried, and caused to be carried, the said Anthony from Minorca aforesaid, to Garthagena, in the dominions of the King of Spain, &c. to the plaintiffs damage of 10,0001. The defendant pleaded 1st. Not guilty; upon which issue was joined. 2dly. A special justification, that the defendant at the time, &c. and long before, was Governor of the said island of Minorca, and during all that time was invested with, and did exercise all the powers, privileges, and authorities, civil and military, belonging to the government [of the said island of Minorca, in parts beyond the seas; and the said Anthony, before the said time when, &c. (to wit) on the said first of September, in the year aforesaid, at the island of Minorca aforesaid, was guilty of a riot, and was endeavouring to raise a mutiny among the inhabitants of the said island, in breach of the peace : whereupon the said John so being Governor of the said island of Minorca as aforesaid, at the said time, when, &c. in order to preserve the peace and government of the said island, was obliged to, and did then and there order the said Anthony to be banished from the said island of Minorca; and in order to banish the said Anthony, did then and there gently lay hands upon the said Anthony, and did then and there seize and arrest him, and did [162] keep and detain the said Anthony, before he could be banished from the said island, for a short space of time, (to wit) for the space of six days, then next following; and afterwards, to wit, on the 7th of September, in the year aforesaid, at Minorca aforesaid, did carry, and cause to be carried, the said Anthony, on board a certain vessel, from the island of Minorca aforesaid, to Carthagena aforesaid, as it was lawful for him to do, for the cause aforesaid ; which are the same making the said assault upon the said Anthony, in the first count of the said declaration mentioned, and beating, and ill-treating him, and imprisoning him, and keeping and detaining him in prison for the said space of time, in the said first count of the said declaration mentioned, and compelling the said Anthony to depart from Minorca aforesaid, and carrying and causing to be carried the said Anthony from Minorca to Carthagena, in the dominions of the King of Spain, whereof the said Anthony has above complained against him, and this he is ready to verify; wherefore he prays judgment, &c. without this, that the said John was guilty of the said trespass, assault, and imprisonment, at the parish of St. Mary le Bow, in the ward of Cheap, or elsewhere, out of the said island of Minorca aforesaid. Replication de injuria sua propri4 absq. tali causa. At the trial the jury gave a verdict for the plaintiff, upon both issues, with 30001. damages, and 901. costs. The substance of the evidence, as stated by the bill of exceptions, was as follows: On behalf of the plaintiff, that the defendant, at the island of Minorca on the 17th of September 1771, seized the plaintiff, and, without any trial, imprisoned him for the space of six days against his will, and banished him for the space of twelve months from the said island of Minorca to Carthagena in Spain. On behalf of the defendant; that the plaintiff was a native of Minorca, and at the time of seizing, imprisoning, and banishing him as aforesaid, was an inhabitant of and residing in the Arraval of St. Phillip's, in the said island; that Minorca was ceded to the Crown of Great Britain, by the Treaty of Utrecht, in the year 1713. That the Minorquins are in general governed by the Spanish laws, but when it serves their purpose plead the English laws; that there are certain magistrates, called the Chief Justice Criminal, and the Chief Justice Civil, in the said island : that'the said island is divided into four districts, exclusive of the Arraval of St. Phillip's; which the witness always understood to be separate and distinct from [163] the others, and under the immediate order of the governor; so that no magistrate of Mahon could go there to exercise any function, without leave first had from the governor: that the Arraval of St. Phillip's is surrounded by a line wall on one side, and on the other by the sea, and ia called the Royalty, where the governor has greater power than any where else in the island; and where the Judges cannot interfere but by the governor's consent; that nothing 1 COWP. 184. MOSTYN V. FABBIGAS 1023 can be executed in the Arraval but by the governor's leave, and the Judges have applied to him the witness, for the governor's leave to execute process there. That for the trial of murder and other great offences committed within the said Arraval, upon application to the governor, he generally appoints the assesseur criminal of Mahon, and for lesser offences, the mustastaph; and that the said John Mostyn, at the time of the seizing, imprisoning, and banishing the said Anthony, was the Governor of the said island of Minorca, by virtue of certain letters patent of His present Majesty. Being so governor of the said island, he caused the said Anthony to be seized, imprisoned, and banished, as aforesaid, without any reasonable or probable cause, or any other matter alleged in his plea, or any act tending thereto. This case was argued this term, by Mr. Buller, for the plaintiff in error, and Mr. Peckham, for the defendant. Afterwards, in Hilary term 1775, by Mr. Serjeant Walker, for the plaintiff, and Mr. Serjeant Glynn, for the defendant. For the plaintiff in error. There are two questions, 1st, whether in any case an action can be maintained in this country for an imprisonment committed at Minorca, upon a native of that place 1 2dly. Supposing an action will lie against any other person, whether it can be maintaiued against the governor, acting as such, in the peculiar district of the Arraval of St. Phillip's 1 In the discussion of both these questions, the constitution of the island of Minorca, and of the Arraval of St. Phillip's, are material. Upon the record it appears, that by the Treaty of Utrecht, the inhabitants had their own property and laws preserved to them. The record further states, that the Arraval of St. Phillip's, where the present cause of action arose, is subject to the immediate controul and order of the governor only, and that no Judge of the island can execute any function there, without the particular leave of the governor for that purpose. 1st. If that be so, and the lex loci differs from the law of this coun-[164]-try; the lex loci must decide, and not the law of this country. The case of Robinson versus Bland, 2 Bur. 1078, does not interfere with this position ; for the doctrine laid clown in that case is, that where a transaction ia entered into between British subjects, with a view to the law of England, the law of the place can never be the rule which is to govern. But where an act is done, aa in this case, which by the law of England would be a crime, but in the country where it is committed, is no crime at all, the lex loci cannot be the rule. It was so held by Lord C. J. Pratt, in the case of Pans versus Johnson, and in a like case of Hallister versus Johnson, sittings after Trinity term 1765. 3d. In criminal cases, an offence committed in foreign parts, cannot, except by particular statutes, be tried in this country. 1st. Vezey, 246, The East India Company versus Campbell. If crimes committed abroad cannot be tried here, much less ought civil injuries, because the latter depend upon the police and constitution of the country where they occur, and the same conduct may be actionable in one country, which is justifiable in another. But in crimes, as murder, perjury, and many other offences, the laws of most countries...
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