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Colonial Cases

Shanghai Land Investment Co. v. Schofield, 1891

[Chinese customary law]

Shanghai Land Investment Co. v. Schofield

Summary Civil Court
Mansfield AAJ, 12 May 1891
Source: North China Herald, 15 MAY, 1891

LAW REPORTS.
H.B.M.'S SUMMARY CIVIL COURT.
Shanghai, 12th May.
Before R. W. Mansfield, Esq., Acting Assistant Judge.
SHANGHAI LAND INVESTMENT CO. v. SCHOFIELD.
  This was a claim for $20, being rent for one moon of two Chinese houses, Nos. 18 and 19, Broadway, occupied by the defendant.
  Mr. C. H. Snethlage, who appeared for the plaintiffs, said defendant had occupied one of the houses for about two years, and the other for six months. During that time rent had been paid regularly up to the third moon of this year, for which payment could not be obtained, and which was now sued for. It was the custom of the Land Investment co. to charge by the Chinese moon for all their Chinese houses.
  Defendant said he refused to pay the month's rent because he argued that it was not due. Before the plaintiffs took over the houses from their former owner, a Chinaman, defendant was in the occupation of one of them, and always paid by the foreign month. When plaintiffs took over the property they did not notify defendant that they wished to make a different agreement. Plaintiff's Shroff tried to collect rent for the Chinese moon, but defendant always refused to pay until the end of the foreign month. About 18 months ago, defendant called on Mr, Snethlage to complain of one of the latter's shroffs who had forced his way into defendant's bedroom. Mr. Snethlage then told him that if he would not pay by the Chinese moon he would have to leave the house. Defendant replied that he would not pay by the Chinese moon, neither would he leave the house, as he would be put to considerable expense in taking down his fixtures and putting them up again. As there was an intercalary moon in 1890, and as he had all along refused to pay by the Chinese moon, he declined to pay thirteen months' rent in the year. Defendant argued that in the foreign settlement of Shanghai he was subject to English law, which did not compel Englishmen to pay the rent by the Chinese moon.
  Mr. Snethlage said he told defendant about 18 months ago that if he did not pay by the moon he would have to leave. Ever since then the rent had been received regularly and witness heard no more about it until his shroffs reported that they could not obtain payment for the third moon of the present year, ending on May 7th.
    His Honour said the question was whether or not there was a contract which must necessarily over-ride any custom. Defendant admitted that he was told that unless he paid by the moon he would have to leave the house. He did not leave, but went on paying rent. By doing so he tacitly accepted the position. There must be judgment for the amount claimed, with costs.
  Defendant asked His Honour to note that he paid under protest. He would certainly appeal against the decision.

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