AND THE LORD SAID UNTO— 61
King’s Bench possesses in this country. Then where is the exception which is to prevent its jurisdiction from attaching in any particular case ? We find it affecting actions, suits and indictments: as affecting criminal information, writs of habeas corpus, and the other high prerogative writs, it is nowhere to be found.
The single decision of Sir Thomas Strange ( Nagapah Chitty v. Rachummah ) has no relation to our question. A person that was not within the jurisdiction of the court at Madras had been actually brought within it by a fraudulent process of law.
The Chief Justice there decided (1 Strange’s Madras Cases, p. 135), “That as where a native has been brought for some purpose to Madras by Government, against his will, and a third party, not concerned in bringing him here, attempts to take advantage of his being within the limits, to hold him to the jurisdiction, it seems to be agreed it is not to be permitted; much less ought it to be so in a case, where they were brought here, in their necessary defence against the injurious act of the plaintiff, of the consequences of which he would now take advantage to fix them, contrary to the maxim that no man should take advantage of his own wrong.”
The whole effect, then, of the only case cited is this; that in a civil suit between individuals, where the defendant was clearly not within the jurisdiction, unless the plaintiffs fraudulent proceeding brought him within it, such a proceeding should not endure to the benefit to the wrong-doer and the prejudice of the party wronged.
It is truly stated, that no clause has expressly given the power of issuing mandatory writs; but as the existence of that power is unquestionable, since it has been always exercised, and can be traced to no origin but the erection of a Supreme Court with all the functions of the English King’s Bench, we have here another proof, that the words erecting it are more than a mere formula, and have received their full effect. The statute of the 21st Geo. III. (c.70) is said to have made a difference not easily comprehended; for if its object really was to prevent the 13th Geo. III. (c. 63) from having so extensive an operation, the change would have been brought about by a plain enactment.