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Colonial Cases

Kingwo v. James Bowman and Co., 1859

[balance of account - appeals]

Kingwo v. James Bowman and Co.

Consular Court,Shanghai
1859
Source: The North-China Herald, 15 October 1859

 

H.B.M. CONSULAR COURT SHANGHAI.

CIVIL SIDE.

19th August 1859.

KINGWO v. JAMES BOWMAN & Co.

Before T. T. MEADOWS, Esq., H.M. Consul,

Messrs. F. H. GROVE, W. LAMOND, Assessors.

This was a suit brought by the Plaintiff, King-wo, a native merchant, for the recovery of Taels 6, 472.5.3 being the balance of an account for teas sold to the Defendants.

The Defendants admitted that they had been indebted in that amount, but were not so at the present time, as the Plaintiff was responsible to them for the defalcation of their Compradore for whom he, the Plaintiff, had stood security.  They handed in an account current between them and the Plaintiff, in which taels 610 were charged, paid to Mr. Tate at Kingwo's request on March 16th 1859.  This the Plaintiff admitted as a set off against his claim.

...  A. J. How, representative of James Bowman & Co. sworn; - Kingwo guaranteed and secured Alee the defaulting Compradore.  I never heard Kingwo say so, Mr. Rehden informed me of the fact; if there is any security chop it is in the hands of Mr. Bowman.  It is the general impression amiong Chinese that Kingwo is security for Alee, but I can not bring any one forward who can prove it.  I know that this is the impression as they have repeatedly remarked so to me.  I never stated that A-mew was security, but I knew he was interested in the matter.

KINGWO warned to speak the truth - I knew Alee first as tea boy to Mr. Rehden.  He was made compradore to Mr. Bowman.  I was never consulted on the subject.  I never secured him, and never gave any security chop.  Mr. Bowman never consulted me in any way as to taking Alee as compradore.

A-MEW warned - Mr. How asked me if I had secured Alee in the 2nd moon, (March) I said, No, he  said, everyone says so.  Mr. How sent for me with Kingwo to his office and asked me the above question.  I refused to secure Alee to Mr. Bowman.  I never saw Kingwo having any conversation with Mr. Bowman on the subject.

DEFENDANT. - I cannot produce any security chop, I believe Mr. Bowman holds it.  I have strong reason to believe that Kingwo did really become security for Alee.  I wish to wait till we can hear from Mr. Bowman on the subject, we may hear any mail.  He mentioned in one letter that Kingwo was security.

[Part column missing?]

JUDGMENT.

That the Defendants pay to the Plaintiff the amount claimed, less 610 Taels, and interest at the rate of 12 per cent per annum on the total original claim from the 1st Jany., 1859, to the 16th March, 1859; and the same rate of interest on Tls. 5,862.5.3 from the 16th March up to date of payment.  And the defendants pay the costs of the suit.

(Signed) THOS. TAYLOR MEADOWS, Consul.

We assent to the above, (Signed) F. H. GROVE,  WM. LAMOND.

 

APPEAL

In

KINGWO (Plaintiff) versus J. BOWMAN & Co. (Defendants)

APPELLANTS, J. Bowman & Co., RESPONDENT, Kingwo.

 

To the Hon'ble FREDERICK BRUCE, C.B., Minister Plenipotentiary and Chief Superintendent of Trade in China.

SIR, - In presenting an appeal against the decision of the Consular Court in a case heard on the 22nd August last, of Kingwo, Chinaman versus the late firm of James Bowman & Co., it is incumbent upon me to state, that the reason for defending the action and of the present appeal against the decision recorded in favour of the Plaintiff, were and are on the grounds that the payment of the money claimed should be withheld, until due time had  elapsed for definite information as to the existence of a Security Chop from the Plaintiff Kingwo, which would render him liable to the defendants for the defalcation of Alee, a compradore, formerly in their employ.

I would most respectfully urge on the attention of Your Excellency that by the affidavit of W. F. Rehden, which is included herein*, the Plaintiff Kingwo was looked upon, trusted and considered to be full and proper security for the defaulter Alee, although the absence of Mr. James Bowman, who is in England, and of Mr. W. F. Rehden who is at Canton, and in whom the sole and entire management of our business was then vested, prevents personal and direct evidence as to the facts alleged.  But I do strongly urge upon the part of the defendants, that in the face of the evidence of W. F. Rehden, the sum claimed should be withheld, until some communication of a definite nature is received from Mr. James Bowman, now in England, and to whom communications on this subject have already been addressed, replies to which may in all probability be expected by the mail leaving London on the 10th August and due here in about three weeks.

I press this point the more strongly, as should the money be paid over and the requited Security Chop be subsequently produced, there is no possible hope of obtaining any redress whatever from the plaintiff, and should the affidavit of Mr. Rehden be considered illegal or insufficient, I urge that a commission be issued to take his direct evidence on the subject before H.B.M. Consul at Canton.

Further, I do most strenuously and urgently appeal against the award to the Plaintiff of interest at the fate of one per cent per mensem as adjudged by the Consular decision.

Firstly - On the ground that such was never claimed or thought of by the Plaintiff who asked only for the principal of Taels 6,472.5.3, and the payment of which on the day the action was heard would have satisfied both the Court and the Plaintiff as is fully proved by the Consular Summons attached hereto.

Secondly - The sum claimed was only proved to be due on the day the case was heard, and no interest on a disputed balance can possibly be just.

Thirdly -  The allowance of interest on a balance of accounts, due whether from Foreigners to Natives or from Natives to Foreigners, is both unknown ands unheard of within the experience of Commercial men in China, except on  actual money lent or under specific and definite agreements, and on enquiry it will be found that in the generality of cases, the Chinese Merchants have been and are large debtors to Foreigners in the current course of business, and that no interest in any such cases is ever asked or thought of.

These facts are further corroborated by the demand of the Plaintiff, being exclusively for the principal only which he claimed to be due to him, and I submit will all respect, that the Consular Court has exceeded its powers in awarding a sum of money on which its adjudication was never demanded. - I have the honour to remain, Your Excellency's obedient servant,

(Signed) A. J. HOW, representative of the late firm of J. BOWMAN & Co.

  • I the undersigned William Frederic Rehden do hereby solemnly declare and affirm that to the best of my knowledge and belief the merchant going by the name of King-wo, or Young king-wo  of Shanghai himself stood, and was looked upon as, security for the faithful  and honest services of Alee the compradore lately in the employ of Messrs. James Bowman & Co. of Shanghai, and that the said King-wo held himself, and was considered responsible for any defalcation or breaches of trust of the said Alee in hjis relation as compradore to the said Messrs. James Bowman & Co.

W. F. REHDEN.

Declared and signed in the presence of PERCY LLOYD, W. B. V ARCO, Witnesses.

Canton, 3rd August, 1859.

 

SHANGHAI, 17th September, 1859

SIR, - As Plaintiff in the case of Kingwo v. James Bowman & Co., which case was lately tried at H. B. Majesty's Consular Court at Shanghai, and then deiced in my favour, I have to address Your Excellency in reference to an appeal made against that decision by Mr. How on the part of James Bowman & Co., and which appeal you have handed to me by Mr. Consul Meadows.

I forbear going into the merits of the case, which has already been fully enquired in to in Court, and confine myself to the points mentioned by Mr. How.

He first says, "payment should be withheld until due time had elapsed for production of the 'Security Chop" - by which Chop he wishes to prove that I am security for his Compradore Alee who is a defaulter.

As was proved in Court, the Teas were sold to James Bowman & Co. on the 30th December, 1857, that is 21 months ago, and Alee left them on the 30th January, 1859, or 8 months ago - how is it then that he has not already found the chop; if such existed; which he knows is not the fact.

Again, he refers to an affidavit of Mr. W. F. Rehden, a former Tea-taster in their House, which affidavit I contend is valueless, either in law or equity, for Mr. Rehden only deposes to a belief that "Kingwo (i.e. myself) was looked upon as security of Alee."  All merchants know that when security is given a regular document is drawn up, and considering the length of time I have been waiting for payment and that no attempt has been made on the part of James Bowman & Co. to prove the fact of this security, or if such has been made it has only resulted in failure, I can only regard the reference asked for to Mr. Rehden at Canton or Mr. Bowman in England as a subterfuge and pretext for further delay.

 Mr. How's remark, that if after all I am found liable for the chop, there is no possible hope of obtaining redress from me, is a simple insult, coming badly from one who for a period of nearly two years, has evaded payment of an acknowledged debt first \upon one plea and then upon another.

He lastly objects to the award of interest on various grounds.  First "that I only claimed the original sum and should have been satisfied on the day the action was brought if I had been paid it."  I claimed of course the sum due upon a certain day, and if I gained the action considered myself entitled to interest, but the first point was obviously to obtain a decision that the debt as it originally stood was due.

Secondly, he avers "that the sum claimed was only proved to be due on the day on which the case was tried, and that no interest on a disputed balance can be just."

This position seems to me  palpably absurd, the sum was proved to be due on the 30th December, 1857, and because he pleases to call it a "disputed balance" I am not the less en titled to interest from that date.  Thirdly he says the allowance of Interest from Foreigners to Natives and Natives to Foreigners on balances of accounts are unheard of, this is but partly true.  Balances of accounts are usually trifling sums and are generally squared off within two or three weeks, but none can infer from that it is a usual practice to retain balances of 6,000 Taels for two years without paying interest, and I can confidently appeal to any merchant here, whether Chinese of Foreign, whether they would be satisfied to wait for 2 years for a resisted debt and then receive it without interest, or consider such a practice just.  I have the honour to remain, Your Excellency's obedient servant,

[Characters signature] KINGWO.

To the Hon'ble FREDERICK BRUCE, C.B., Minister Plenipotentiary and Chief Superintendent of Trade in China.

 

Consul's Statement of grounds of his decision to the Chief Superintendent.

BRITISH CONSULATE,

SHANGHAI, 21st September, 1859.

This was a very simple case.  The plaintiff's original demand was for Taels 6,472.5.3 balance of mercantile accounts, and to this in itself the defendants made no objection.  And when they claimed in Court to deduct Taels 610, cash paid away by them on behalf of plaintiff, the latter at once assented to the deduction.

There was then, on the original balance, a sum of Taels 5,862.5.3 left due by the defendants to the plaintiff.  As to this, the defendants argued to the plaintiff - "We maintain a right to withhold payment of this balance, or the most of it, because we believe you stood security for our compradore by whom we have lost money."

There was, strictly speaking, no issue as to facts, for there was a positive denial of responsibility by the plaintiff, and only an assertion of a probability of responsibility by the defendants.

To the Court, it seemed there was but a faint possibility of any satisfactory proof of guaranteeship ever being produced.  But taking the position asserted by the defendants themselves, viz: - that of "strong reason to believe" that the plaintiff had "really" secured their Compradore, I know of no law by which I could, on that uncertain ground, sanction the defendants withholding, still  longer, payment of their admitted debt after payment had already been long withheld.  On the contrary, the law of England, to the principles of which Consuls are required to conform their decisions, as far as practicable, does not admit of uncertain damages, resulting from the breach of a contract for the performance of some act o duty, being used as a set off against a debt or money demand.  It refers such claims to cross actions.  Now in this case, the existence of any such contract was positively denied; and, if it had been established, the amount of damages resulting from the breach was still uncertain.

Apart from the law of England, the application of abstract principles of justice to the local business circumstances dictated a judgment for the plaintiff.  In this instance, I was willing to believe that the defendants themselves really entertained that view of their case which they put forth for the Court to sanction a further delay in the payment of a just debt for value received would have been to open, here, a wide door to fraudulent delays on a variety of pretexts.

The account handed into Court by the defendants, stating the balance of Taels 6,472.5.3 to have been due on the 1st January 1859, it appeared just to adjudge interest from the close of then year 1858 at least, and then on the same sum less 610 Taels, from the date of the payment of the latter to the date of future final settlement.

The defendants have, since the trial, objected to me that the plaintiff did not claim interest.  But to me it is clear that it would lead to gross hardship and injustice if it were laid down that a Chinese who applied to a British Consular Court for enforcement of his rights, were to have his rights denied him merely because he, - a suitor unaided by any advocate, and himself ignorant of our laws and legal procedures, and even of our language, - does not minutely particularize them.

With this, I transmit the Statement of the Appellant, the Counter statement of the Respondent and the Record of the cause.

(Signed)  THOS. TAYLOR MEADOWS, H.M.'s Consul.

 

Decision of the Chief Superintendent.

In the appeal of J. Bowman & Co. against the sentence of the Consular Court of Shanghae in the suit of

KINGWO versus J. BOWMAN & Co.

I have read and considered attentively the papers in this case produced before the Consular Court, the sentence given, together with Mr. Consul Meadows' report, the Statement put in by the appellant of the grounds of appeal, and the counter statement of the respondent.

The appellant requests that the payment of the sum due to Kingwo be withheld ands time allowed for ascertaining whether a Security Chop exists which would render Kingwo responsible for the alleged defalcations of Alee, Messrs. Bowman's Compradore.  To enable the Consular Court to entertain this demand, the defendant ought to have laid before it, on the hearing of the suit, satisfactory proof of the debt being due from Alee, and of existence of a Security Chop given by Kingwo.

On the first point I have to observe that there is no evidence whatever, and on the second, that the evidence, including the declaration of Mr. Rehden somewhat irregularly admitted, fail to raise in my mind any presumption of the existence of such a document.  The appellant further objects to the award of interest on the sum adjudged to be due to the Plaintiffs.  The defendants having admitted by the account produced in Court that the value of the teas was due on January 1st 1859, (the teas having been sold a gear previously) I am of opinion that the award of interest is just, the payment of six hundred and ten Taels (Tls. 610) being merely a part payment on account.

I therefore confirm the sentence of the Consular Court.

(Signed) FREDERICK W. A. BRUCE, Shanghae, 27th September, 1859.

 

 

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