J. C. 1871 RODGER v. THE COMPTOIR DE PARIS. awarded to inquire what profits the party has taken, colore judicii prædicti. And the Court there expressly declares that "the Plaintiff in the Writ of error, after reversal, is to be restored to all he lost." [LORD CAIRNS:-In the cases of Rajah Lelanund Singh v. Maharajah Luckmissur Singh (1), and Kirkland v. Modee Peston-jee Khoor- D'ESCOMPTE sedjee (2), sums found due for mesne profits were held, as judgment debts, to carry interest.] Even before the passing of the Common Law Procedure Act, 1852, which, by s. 150, makes proceedings in Error a supersedeas of execution from the time of service of the Master's note, the law was, in effect, the same. Thus, in Belshaw v. Marshall (3), a Sheriff executing a fi. fa., after notice of the allowance of a Writ of error, was held liable in trespass, though there had been no further supersedeas of the execution. In Levy v. Langridge (4), the Court of Exchequer decided, that where judgment is given in a Court of Error for the Defendant in Error, the Court is bound, under 3 & 4 Will. 4, c. 42, s. 30, to allow interest for the time that execution has been delayed by the Writ of error. Interest is paid for such time as execution has been delayed; 1 & 2 Vict. c. 110, s. 17. We ask also for interest upon the costs we have paid in the Court. Mr. Kay, Q.C., and Mr. Holl, for the Respondents : As the Order in Council contained no direction for the payment of interest on the amount of the judgment, the Supreme Court had (1) This case was heard on the 15th of July, 1870, before Lord Cairns, Sir James William Colvile, Sir Joseph Napier, Bart., and Sir Lawrence Peel. The appeal arose out of the case of Rajah Lelanund Singh, Bahadoor v. Maharajah Moheshur Singh, Bahadoor (reported 10 Moore's Ind. App. Cases, 81), which was a suit for possession of lands and wasilat, or mesne profits. By an Order in Council, made on the recommendation of the Judicial Committee, the decree of the then Sudder Dewanny Adawlut was reversed, and the suit remitted to India, subject to certain inquiries directed to be made by that Court. On a petition to the High Court of Judicature at Calcutta, which (2) 3 Moore's Ind. App. Cases, 220. J. C. 1871 RODGER v. THE COMPTOIR DE PARIS. no power to award interest. It cannot be successfully contended, that it is an incident to the Order in Council. If interest was intended to be demanded, it ought to have been applied for on the hearing of the appeal. It is admitted that the English Law applies. D'ESCOMPTE By analogy to the practice here, after reversal of a judgment of a Common Law Court there is a regular mode of proceeding by the Plaintiff in Error by a Writ to the Sheriff to give restitution, or levy: Lush's Practice, p. 675 [3rd Ed.]; Archbold's Q. B., Practice, p. 643 [12th Ed.]. In Tidd's Forms, p. 586 [8th Ed.], the form of a Writ of restitution is set out. It is by sci. fa., and directs that "C. D. should be restored to all things that he has lost by occasion of that judgment;" that only means the return of the thing or money. Sympson v. Juxon (1), relied on by the Appellant, was a case relating to land, and is distinguishable from the present, which relates only to money. Interest is nowhere mentioned in any of the cases on this subject as demandable at Common Law. Thus, in Eyre v. Woodfine (2), a Termor for years was outlawed, he was restored to the term on reversal of the outlawry, but without mesne profits. In Bacon's Abr., tit. "Error," M. 3, it is laid down, that if a term for years is sold by the Sheriff, and the judgment be reversed, the party shall be restored only to the money for which the term was sold, and not to the term itself. In Courts of Equity, on reversal of a decree, interest is given only in special circumstances. The true rule is stated in Parker v. Morrell (3), that where a decree or Order under which money has been paid is reversed on appeal, the money is in general ordered to be repaid without interest. [SIR JOSEPH NAPIER: Suppose, in this case, as the Respondents are Bankers, that the money paid for the judgment and costs has been used by them in their business, and they have received interest thereon.] Wolfe v. Findlay (4) is an answer to that question. There a London Firm, Bankers and Agents of a Firm in India, had assets belonging to a deceased's estate in their possession. For a period of ten years the assets had been mixed with their moneys; as no application had been made to pay the money into Court, it was held, that the London Firm was not liable to pay interest. So (3) 2 Phillips, 453. (4) 6 Hare, 66. (1) Cro. Jac. 699. J. C. 1871 RODGER V. THE COMPTOIR DE PARIS. in Lord Chedworth v. Edwards (1), which was cited in the former case, an Agent, who, by desire of his Principal, kept large sums of money in his hands, for which he was to be responsible, paying from time to time, and duly accounting, was declared not liable to pay interest, even supposing, as the Court said, he had employed D'ESCOMPTE the money for his own interest. These authorities establish the proposition, that interest is not an incident of the possession of money, and is only given where specially provided, either by contract expressed or implied. When interest is given by Statute, as in 3 & 4 Will. 4, c. 42, s. 30, and 1 & 2 Vict. c. 110, s. 17, it is by way of damages. Levy v. Langridge (2) shews that, before the former Statute, it was in the discretion of the Court to allow interest. This Tribunal can do no more than the Supreme Court could do. The Supreme Court of Hong Kong had no power under the Order in Council, or the General Regulations of 1845, regarding appeals from that Island, to award interest, unless specifically directed. The case of Blake v. Mowatt, relied on by the Appellants, differs from this. There the terms of remit directed the Court of Chancery to do what justice required; and there being a fraudulent representation, and a personal liability, it was a case which would justify a Court of Equity decreeing interest. LORD CAIRNS : In this case an application was made to their Lordships some time since by petition by persons who were Appellants in the year 1869 before this Tribunal, and upon whose appeal a judgment of the Court at Hong Kong was reversed, and the application made by the petition was, that the Court at Hong Kong might order not merely restitution of the money which had been paid under the original judgment, but also interest upon all the sums they had paid. Their Lordships, when that petition came before them, were of opinion that the Record ought to be printed; and they dispensed with the printing of any Cases by the parties, and they thought that when the Record was printed they would be in a position to dispose of the questions raised by the petition. That question is one of considerable importance, not only to the parties in this case, but with reference to the general practice of primary Courts. It (1) 8 Ves. 48. (2) 4 M. & W. 337. J. C. 1871 RODGER v. THE COMPTOIR DE PARIS. arises in this way. Upon the 3rd of June, 1867, in an action of Trover brought against the Petitioners by the Respondents, a verdict was given by the jury for $56,390-12 as principal, and $6,336-47 as interest, with a further sum for costs. Thereupon, the DefenD'ESCOMPIE dants in the action, the present Petitioners, applied to the Court at Hong Kong, by a rule, for a new trial or for a nonsuit. That rule was refused with costs upon the 29th of June, 1867. A very few days afterwards, on the 2nd of July, 1867, the present Petitioners applied to the Court for leave to appeal, and leave was granted on the 5th of July, 1867. Now, in that state of things, it was in the option of the Plaintiffs in the action, the Bank, either to have allowed the sum which they have been awarded to remain in the hands of the present Petitioners, or to insist upon execution of the judgment, giving security to abide by any Order that Her Majesty in Council might make. The general Regulation gave them that option. They had the right to execution, giving the security of the kind that I have mentioned. They were fully aware, from the application for leave to appeal which has been stated, that an appeal was about to be brought. They obtained execution of the judgment, and received the sum of money which they were awarded. Her Majesty, by an Order in Council, acting upon the recommendation of their Lordships, ordered that the judgment of the Court below should be reversed, and that a nonsuit should be entered. The Order of Her Majesty did not in express terms go further, except to say, that "the Governor, Lieutenant-Governor, and Commander-in-Chief of the Island of Hong Kong, for the time being, and all other persons whom it may concern, are to take notice and govern themselves accordingly." But the general Regulation applicable to Hong Kong provided, in the last sentence of the Regulation of 1845, that "the Supreme Court should, in all cases of appeal to Her Majesty, Her heirs and successors, conform to, execute, and carry into immediate effect such Judgment and Orders, as Her Majesty, Her heirs and successors in her or their Privy Council, should make thereupon, upon the appeal, in such manner as any original judgment or decree of the Supreme Court can or may be executed." The result is this, that in the opinion of their Lordships it was in the power, and it became the duty, of the Court at Hong Kong J. C. 1871 RODGER บ. THE COMPTOIR DE PARIS. to do everything, and to make every Order which was fairly and properly consequential upon the reversal of the original judgment by this Tribunal. The Supreme Court at Hong Kong has entertained no doubt that it had the power, and that it was its duty, to order restitution of the principal sum that was paid over, and all the D'ESCOMPTE costs that were paid over under the judgment. But it has held the opinion, that it had not the power to order any payment of interest upon any part of the sum paid over by the present Petitioners to the Respondents. The question which their Lordships have to consider is, whether the Court at Hong Kong had or had not that power to order payment of the interest, and if so, whether in this case it was or was not proper to exercise that power? Now, their Lordships are of opinion, that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression "the act of the Court" is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court. It is contended, on the part of the Respondents here, that the principal sum being restored to the present Petitioners, they have no right to recover from them any interest. It is obvious that, if that is so, injury, and very grave injury, will be done to the Petitioners. They will by reason of an act of the Court have paid a sum which it is now ascertained was ordered to be paid by mistake and wrongfully. They will recover that sum after the lapse of a considerable time, but they will recover it without the ordinary fruits which are derived from the enjoyment of money. On the other hand, those fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under a judgment which has been reversed. So far, therefore, as principle is concerned, their Lordships have no doubt or hesitation in saying that injustice will be done to the Petitioners, and that the perfect judicial determination which it |