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S.C.

1901.

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V.

COURTE.

is a very old one, and has been ever followed: See Arundell v. Tregono(1) (in 1608) and Fisher v. Bristow (2) (in 1779); Basebé v. Matthews (3). Mr. Chapman argued that, as the plaintiff had been released by the Governor of New Caledonia, that COUNT DE release was a termination of the proceedings. That is not 80. The extradition proceedings terminate when the fugitive criminal is handed over to the representative of the foreign State that has demanded his extradition. What may take place in the foreign State is of no moment so far as the extradition is concerned. Extradition proceedings are not steps in the trial for an offence, like proceedings before a Magistrate for committal. On the contrary, as in this case, the fugitive may have been charged with being a convicted felon illegally at large, and not with being one who has to undergo a trial for an offence. The issue by the Governor, or, if he is absent, by his Deputy, of the warrant delivering over the convict to the authorities of the foreign State, or the refusal to issue the warrant, or the release of the fugitive under habeas corpus proceedings, is the termination of the extradition proceedings.

It has been said that to allow an action for malicious prosecution to lie where the proceedings had not terminated favourably for the plaintiff would be to give an appeal. In extradition proceedings, though there is no direct appeal against the issue of the warrant, there is an analogous proceeding, and one that is equally effective-namely, a proceeding by way of habeas corpus. If a person arrested under the Extradition Act thinks he has been improperly arrested, he has this remedy; and if he is released under the habeas corpus the proceedings would be terminated, and terminated favourably to him. If the warrant has been refused, or if he has been released, then, if he could show that the proceedings were malicious, and without reasonable and probable cause, he may have his action for a malicious proceeding; but if the warrant has been issued, and he has not been released under habeas corpus, then the proceedings have terminated unfavourably to him, and he cannot sue as if for malicious prosecution.

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S.C. 1901.

BOUVY

V.

COUNT DE
COURTE.

So far as this claim is concerned, the plaintiff has no cause of action. He has averred that the extradition proceedings terminated unfavourably to him.

As to the second alleged cause of action, that for false imprisonment, it is alleged that at the time the plaintiff was imprisoned in New Zealand he was imprisoned by virtue of a legal warrant issued by the Deputy Governor. He was not in the custody of the defendant. His imprisonment in New South Wales was by virtue of the warrant given. There is no allegation that the plaintiff was in the personal custody of the defendant, nor is there any allegation that he was imprisoned by the defendant in Noumea. The conveyance of the plaintiff to Noumea was by virtue of the Governor's warrant: See section 11 of "The Extradition Act, 1870." If the plaintiff had been imprisoned by the defendant or by his agents in pursuance of the warrant, no action would lie: Henderson v. Preston(1).

As the statement of claim discloses no cause of action, it is not necessary to consider the point raised by Mr. Menteath as to the position of the defendant as Consul - General for France in New Zealand. Consuls have not the privileges of ambassadors. They have been held to be subject to both the civil and criminal laws of the nation in which they reside: Wheaton's International Law(2); Phillimore's International Law(3). It may be that the time has arrived in the history of our colonies when Consuls-General should be placed in some higher position than mere commercial agents. That is for the Imperial authorities to arrange with foreign nations. For certain wrongs done, even on French territory, the French Consul can be sued here by a French subject. The limitation is that the tort is not connected with real property, and that the wrong done is actionable in the foreign country and in our colony: See Dicey's Conflict of Laws (4).

I prefer to decide this case as if the parties were British subjects; and it is unnecessary to refer to the affidavit of the defendant. Certainly, if it is referred to, and if it cannot

(1) 21 Q.B.D. 362.

(2) 3rd Eng. ed. 351.

(3) Vol. ii. 204 et seq.
(4) p. 660.

S.C.

1901.

BOUVY

v.

COURTE.

be denied and it has not been denied-it is plain that the plaintiff is without any vestige of legal merits. The statement of claim does not, in my opinion, disclose any cause of action; and, this being so, there is ample authority that COUNT DE a Court will not allow its process to be abused; and it is an abuse of the process of the Court to proceed with a groundless and frivolous action: See Whitworth v. Darbishire(1); Davey v. Bentinck(2); Macdougall v. Knight (3). Indeed, an eminent Judge has said that no Court ought to sit still and see its own process abused to work injustice: Cocker v. Tempest(4). To allow a frivolous and groundless action to proceed is to allow the Court to be made a worker of injustice.

In my opinion the motion must be allowed and the action dismissed, with £10 10s. costs, and disbursements.

Action dismissed.

Solicitor for the plaintiff: T. M. Wilford (Wellington). Solicitors for the defendant: Menteath & Beere (Wellington).

HARPER v. HARPER AND ANOTHER.

Tenancy in Common of Land-House built on the Land by one Co-tenant
with the Consent of the Other-Removal of the House by Trespasser—
Measure of Damages-Land held in Fee-simple by Natives-"The Native
Land Court Act, 1894."

A husband who erects a house on his wife's land has no right to remove it, and can be sued by his wife in trespass for such removal. The fact that the wife is a Maori makes no difference if the Native title has been extinguished.

MOTION for judgment.

The plaintiff is a married woman and an aboriginal native. The defendant, Harper, is her husband, and is a half-caste. Mrs. Harper was tenant in common with a Mrs. Topi of Section 40 of the Waikouaiti Native Reserve. The other facts material to the point decided in the judgment are sufficiently stated therein.

(1) 68 L.T. 216.

(2) [1893] 1 Q.B. 185.

(3) 25 Q.B.D. 1.

(4) 7 M. & W. 502; 10 L.J. Ex. 195.

S.C. HEARING. DUNEDIN.

1900.

June 28;
July 20.

WILLIAMS, J.

S.C. 1900.

HARPER

v.

HARPER.

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The house belonged to Mrs. Harper, and she is entitled to its full value: Masefield v. Rotana(1); Wilkinson v. Haygarth (2); In re Jones (3); Watson v. Gass(4); Roscoe's Nisi Prius Evidence(5).

F. R. Chapman, for the defendant:

The house really belonged to the defendant Harper: Plimmer v. Mayor, &c., of Wellington(6); Ramsden v. Dyson(7); Lancaster v. Eve(8); Waterfall v. Penistone (9). The plaintiff can only recover the value of her interest viz., fourninths: Mayne on Damages(10); Jones v. Gooday(11); Wilkinson v. Haygarth (12).

WILLIAMS, J.: -

Cur. adv. vult.

The case, according to English law, presents no difficulties. Mrs. Harper and Mrs. Topi were tenants in common of Section 40. Mrs. Harper arranged with Mrs. Topi on what part of the section the house was to be erected. The original house was given to Mr. and Mrs. Harper by a Native named Parahu, and was removed from where it then stood to the site on Section 40. Harper paid for its removal, and assisted in the process of removal. Later on the house was enlarged from time to time, Harper paying for the materials. The latest and apparently the most considerable addition was made in 1898. Timber and firewood were cut off the section by Harper. and probably some of the proceeds of these went to pay for the enlargements. Mr. and Mrs. Harper lived with their family in the house for several years. Then matrimonial differences arose, both husband and wife having been guilty of adultery. Harper went away harvesting, and Mrs. Harper went to live with the man she had been previously intimate with, leaving the house unoccupied. Then Harper, assisted

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by McFie, pulled down the house and removed it on to some other land belonging to Harper. McFie had been previously warned by Mrs. Harper not to interfere with the house. The house had been affixed to the freehold, and therefore undoubtedly Harper and McFie, who pulled the house down, became responsible in damages to the owner of the freehold for the injury done to the freehold. The house had been

erected with the express consent of the other owner of the freehold, Mrs. Topi. On a partition between Mrs. Harper and Mrs. Topi, Mrs. Harper would be entitled either to have the land on which the house stood allotted to her as part of her share or to an allowance for the value of the house: Seton on Judgments and Orders(1); Swan v. Swan(2); Pascoe v. Swan(3); Watson v. Gass(4). That being so, Mrs. Harper would be entitled to recover from the trespassers not merely a part of the value of the house proportionate to her interest in the land, but the whole value of the house. It was attempted to set up the existence of some equitable right in Harper to the house. I do not see what equity can arise in favour of a man who chooses to spend money on his wife's property. It may be that, as the house was intended to be, and was, the matrimonial domicile, the husband had a right to live there. so long as it was in existence. Apart from that, if a man spends money in erecting improvements on his wife's land, and there is no evidence of any agreement to the contrary the inference would be that he intended the improvements to become his wife's property. In any case, whatever equity Harper might have had in respect to the house when standing on Mrs. Harper's land, he has, by his wrongful act in pulling down the house, put an end to the existence of the state of things which entitled him to the equity. He cannot set up any suggested equity, either as an answer to the action or in reduction of damages. The defendants therefore would be liable to the extent of the entire value of the house. At the conclusion of the trial I asked counsel whether they wished that I should give judgment according to the English law, or

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S.C.

1900.

HARPER

V.

HARPER.

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