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Colonial Cases

Marshall v. Morphew, 1871

[debt recovery]

Marshall v. Morphew

Supreme Court of China and Japan
14 October 1871
Source: The North-China Herald, 18 October 1871[1]



Shanghai, Oct. 14.

Before C. W. GOODWIN, Esq.


Attorney for Proprietors of the Shanghai Recorder,



Claim for Tls. 350.90, and interest Tls. 163.75, balance of account.

   His Lordship observed that the defendant answered the petition by saying simply that he was not indebted.  As he had not chosen to explain, it would be necessary for plaintiff to prove it.  Did plaintiff's attorney know anything of the contracting of the debt.

   Mr. MARSHALL said he did not, individually.  He had not been in the employ of the Recorder when the debt was contracted, but he had the books of that business, posted by the defendant, and also a statement of the debt, and signed d by him.

   His Lordship said it appeared the debt was one contracted to Mr. C. Treasure Jones, and could not see how it was to be proved without him.

   Mr. MORPHEW remarked that it was very strange the debt should be brought forward just after Mr. Jones had left - not till he was going away was the petition filed.  He himself would have liked to have had Mr. Jones in Court when the matter was brought up.

   Mr. MARSHALL   said the petition was filed before Mr. Jones left.

   Mr. MORPHEW said it was dated 19th Sept., and handed in letters of his written in 1866 denying the debt.

   Mr. MARSHALL handed in a letter received from Mr. Jones, affirming the debt.  Mr. Morphew had not denied the debt when he, Mr. Marshall, applied to him for payment.

   His Lordship - Why was not the case tried four years ago?

   Mr. MARSHALL said the defendant was not then in a position to pay the money; but in June last had made him an offer of Tls. 200 cash to settle it.  That, however, he could not take till after consulting Mr. Smith, who wrote authorizing him to do so.  Mr. Morphew then offered Tls. 100, and it became necessary to being the claim into Court.

   Mr. MORPHEW said he made an offer subject to the claim being proved.  He did not know that the accounts were transferred by Mt. Jones, and wished to see the deed of transfer if they had been.

   His Lordship asked if Mr. Smith had any power of attorney to sue for debts.

   Mr. MARSHALL said Mr. Smith had paid Tls. 1,000 for the book debts.

   His Lordship said that did not legally transfer for debts; he ought also to have got a power of attorney to sue in the name of the seller.

   Mr. MARSHALL said there was an advertisement in the newspaper, saying that the copyright and proprietorship were sold to the plaintiffs.

   His Lordship said it did not follow that this debt might not have been settled in some way.  The possession of books was no proof.

   Mr. MARSHALL said if it were settled, the original statement granted by defendant would have been returned to him.

   His Lordship said the defendant claimed to have nothing to do with Mr. Smith.  The debt was an affair between him and Mr. Jones.

   Mr. MARSHALL handed in an extract from a letter of acknowledgment from Mr. Jones, showing that Tls. 1,000 had been paid for the book debts.  If there had been no transfer, the claim would have gone into Mr. Jones' insolvent estate.  Mr. Jones had become bankrupt, and it had not done so.

   His Lordship quite admitted that the book debts might have been purchased. What was the date of the sale?

   Mr. MARSHALL. - the 22nd Feb. 1866.

   His Lordship said that, as a matter of fact, the plaintiffs were a month too late in obtaining the summons.  They brought a statement of acknowledgment of a debt to the proprietor of the Shanghai Recorder of August 1866.  At the end of August 1871 the debt lapsed.  The petition seemed to have been filed on the 19th September.

   Mr. MARSHALL said it was filed on 22nd August, during the vacation of the Court, and sent out in September.

   Mr. MORPHEW asked whether the petition was in order. In the body it was spoken of as the prayer of Daniel Wares Smith and Albert Curtis Dulcken, and elsewhere D. W. Smith claimed as proprietor of the Shanghai Recorder.

   His Lordship said if they were entitled to the debt that was immaterial.  One partner might sue in name of the firm.  But he did not think that without a power of attorney they were entitled to sue for this debt.

   Mr. MARSHALL said Mr. Jones was not in a position to grant power of attorney.

   His Lordship said if he could transfer the books, he could give power to collect.

   Mr. MARSHALL said it was not usual to give power of attorney in such cases.

   His Lordship said it ought to be done, however.  If the former proprietor was unable to get certain debts collected, he ought to have given a power of attorney to enable parties to sue in his name.  Was there a schedule made out, of the debts at the time; did not documents pass?

   Mr. MARSHALL said there were only the books.  The plaintiffs when purchasing the business looked through them and made an estimate of what the debts were with, and the books had remained in their possession ever since.  Mr. Jones' answer, accepting the offer of Tls. 1,000 for the book debts, was the only paper that passed.  Mr. Morphew had verbally acknowledged this debt to him, and written saying he would communicate with Mr. Smith, at Hongkong, about it.

   His lordship said if Mr. Morphew made any acknowledgment, proof might of course be offered of such acknowledgment.

   Mr. MORPHEW said he had always acknowledged, but in this way, that if they could prove a legal transfer of the debt to them he would accept it.  He had come to an understanding with Mr. Jones, when leaving his employ, that the debt would not be called for.

   Mr. MARSHALL repeated that defendant had made him a verbal offer of compromise.

   His Lordship thought the case was one for some kind of compromise.  He doubted whether the plaintiff was in a position to press it without some further evidence.

   Mr. MARSHALL asked to have the case adjourned, to get papers which would probably substantiate the claim.  It would be very hard for the plaintiffs to lose this amount. They had not known that anything further would be necessary, and Mr. Morphew's answer to the petition did not help them.

   Mr. MORPHEW thought he had given the best and simplest answer he could - that he was not indebted.  It was for them to prove their case.

   His Lordship suspected that defendant was in one sense indebted.

   Mr. MORPHEW said he was - to Mr. Jones, who had given him a verbal assurance that he would never trouble him for the debt.

   Mr. MARSHALL observed that if the statement of debt had been made out in Mr. Jones' name by defendant, it might have been necessary to have had it endorsed over by Mr. Jones, but when plaintiffs purchased the business. Documents like that, would, he thought, have been legal under the transfer which had taken place.

   His Lordship presumed that there was no doubt of the purchase of the debts, but a power of attorney should have accompanied it.  At the same time, any one who owed the former proprietary was morally just as much bound to pay.

   Mr. MORPHEW would leave the question of moral obligation to the Court, merely saying that it would put him much about to pay a claim like that, and that he did not recognise his responsibility to the present claimants.

   His Lordship thought that some compromise should be come to; and after some further discussion, the parties agreeing, non-suited the plaintiff and advised him to submit the claim in Chambers, for arbitration.


[1] On Treasure Jones, see also Tapp v. Jones, 1870 and Re Treasure Jones, 1868.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School