East India Company v. Campbell

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Original Citation: (1749) 1 Ves Sen 246

English Reports Citation: 27 E.R. 1010

June 7, 1749

[246] East India Company v. Campbell, June 7, 1749, Exchequer.

Demurrer to information as subjecting defendant to pains and penalties. (See 5 Ves. 173.) A demurrer may be put in after a plea is over-ruled. (Baker v. Hellish, 11 Ves. 68.) [Supplement, 131.]

Information was brought in the name of the Attorney-General, that defendant might discover how he came by the possession of certain goods ? whether it was not by fraud, violence, contrivance, or other means : and whether they were not the property of the Indians, from whom they were so taken by the defendant and others 1 The defendant's share amounting to a considerable sum; the captain of one of the company's ships, on board of which he had put it, refused to deliver to him ; having informed the company of the transaction, in which the defendant was said to be concerned.

The defendant put in a plea, which was over-ruled, and afterward demurred, the same in substance as his plea, to the putting in any answer ; for that he cannot dis¡cover, how these goods came into his possession, because it would subject him to a fine or corporal punishment: or that if he shewed, he gained it in the way of trade, he would be liable to the penalties in the acts of parliament established for the company.

Against which it was said, two dilatories will not be suffered. The company is considered in the East Indies as a surety for every Englishman, and answerable for any damage done by them there ; and as every surety may come upon his principal, has a right to be indemnified by the person, from whom the Indians suffered an injury, for which the company are to make satisfaction. As in the case of the crown, who must make reparation for depredations committed by the subject, but may bring an informa¡tion against that subject to indemnify his country for the loss suffered. So the rule in all treaties is, that upon letters of marque, satisfaction only equal to the injury shall be taken ; if more is taken, the crown may oblige the party to refund. As these goods are not the property of any one, the crown ought to interpose by its right to take care

1 VES. SEN, 247, METCALE1 V. HERVEY 1011

of the interest of the public, and to prevent a failure of justice, as it does in other cases. The not venturing to deny the charges is a tacit admission. A court of equity will not indeed compel a defendant to subject himself to a penalty, unless it is waived : but here he would be subject to none, by reason of the pardon in the act of grace : but suppose he had confessed it, there could be no punishment, as it could not be tried here ; nor is it punishable by [247] the statute of H. 8, as being within the jurisdiction of the Admiralty. Bills quia timet are allowed here: some of the questions he may very in¡nocently answer, nor will any of them harm him, if he answers in the negative, as he may. i I But per tot' cur. This is an out of the way bill, and of a dangerous nature, by persons having no right, and founded on several suppositions. If any complaint had been made in the East Indies, and depending there, the company might be right to have this money retained till that was determined : but there being no complaint, it is to be presumed, none will be. The matter, if committed, is allowed to be felony, and by the Attorney-General himself is thought to be piracy; although not so by the course of common law. Then the rule is, that this court shall not oblige one to discover that, which, if he answers in the affirmative, will subject him to the punish¡ment of a crime ; for it is not material, that, if he answers in the negative it will be no harm; and that he is punishable appears from the case of Omichund v. Barker [1 Atk. 21], as a jurisdiction is erected in Calcutta for criminal facts ; where he may be sent to government and tried, though not punishable here : like the case of one who was concerned in a rape in Ireland, and sent over there by the government to be tried, although the court of B. B. here refused to do it: which was founded on a case in 2 Yen. for the government may send persons to answer for a crime wherever committed, that he may not involve his country; and to prevent reprisals. But this objection goes farther (1 Vern. 109 ; 2 Vol. 245 ; 1 Atk. 539, 450; 2 Atk. 393, 200; 1 Brown, 97; 3 Wms. 376); for if it only tended to render him infamous, he should not be obliged to answer : but he is also liable to be affected civilly, via. by a prosecution by the company for carrying on an illicit trade within the limits of their jurisdiction; and this, whether he went in the company's service, or not; for though lawfully there, he might not lawfully trade there. Nor is this within the notion of two dilatories (2 Ves. sen. 492); for though a demurrer is a dilatory, a plea is not; being matter of justice in bar to the relief sought (Note: Double plea ordered to stand for an answer with liberty to except, 1 Brown, 404): and a plea may be over-ruled, as a plea of purchase without notice for want of form, covering too much, &c., and yet it may be insisted on in the answer. But supposing it dilatory, a court of equity must not merely for form's sake be a court of inquisition to do great injustice. An exception may be allowed as to part, and over-ruled as to part: but all is here relative to one thing, viz. the method of coming by this, stated to be taken by force, violence and fraud; which, whether the defendant is obliged to answer, is the question now; and is asked by persons, who have not made out their right; for unless this is proved to be stolen, the crown has no more a right thereto than a private person. Possession prima facie gives property ; which is in defendant, and (by Chief Baron Parker) the property is not in the fting, but in the proprietors; who are intitled to restitution: but whether the crown is concerned or not, may be considered at the hearing. If de-[248]-fendant is not obliged to answer the facts, he need not answer the circumstances, although they have not such an immediate tendency to criminate: nor should the privileges of great companies be1 extended farther than the trade necessarily requires, to the oppression of others.