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Colonial Cases

Leang-a-ting v. Lindsay, 1859

[agency - appeals]

Leang-a-ting v. Lindsay & Co.

Chief Superintendent of British Trade, China
1859
Source: The North-China Herald, 12 March 1859

H.B.M. CONSULAR COURT.

CIVIL SIDE.

20th January 1859.

LEANG-A-TING v.  LINDSAY & Co.

Before D. B. ROBERTSON, H.M. Consul,

Messrs. A. A. RANKEN, R. REID, R. ROTHWELL, Assessors.

This was an action brought for the recovery of Tls. 9,391.2.5, claimed by the Plaintiff as the value of Teas sold and delivered to the Defendants.

Mr. Hogg representative of the Defendants firm rose to move for an adjournment on the grounds that he was unprepared for his defence from the shortness of notice of Trial, and further that a material Chinese wiriness was absent whom he could not obtain under ten days.

 Mr. G. G. GRANT[?]  rose, as having an interest in the case, to oppose any adjournment on the grounds that he has frequently applied to defendant to settle the case but without success.

The COURT having considered the motion of the Defendant for an adjournment of the hearing of the case for ten days granted it.

The COURT was accordingly adjourned to Wednesday the 9th of March at 11 a.m.

9th March 1859.

LEANG-A-TING being duly warned to speak truth, stated; - He went to the Kwan-leung hung and sold a chop of tea when Mr. Innes asked him respecting the Kwei-wan chop.  He replied he knew about the chop and it belonged to A-yaow the Ke-chong Compradore.  Mr. Innes said he would pay 26 Tls. per picul for it.  He went and told A-yaow that Kwan-loong hong wanted to buy the Kwei-wan chop of tea and offered 26 Tls. for it.  A-yaow wanted Tls. 27.  Mr. Innes offered Tls. 26 ¼ and said he would settle it for that if he could get it.  A-yaow agreed to sell it at Tls. 26 1/4.  A-yaow sent his broker A-hoon with him to settle it.  They went and saw Mr. Innes and he sent them to Mr. Hogg.  They went and saw Mr. Hogg, and Mr. Hogg said he would see by and by - if he bought the tea hew would pay in 1 month or 3 weeks.  A-hoon went to ask A-yaow about it.  A-yaow agreed to settle it if paid in 1 month.  He told Mr. Hogg it was settled and Mr. Hogg told him to send the tea in quickly.  He told Mr. Hogg the tea belonged to A-yaow, A-hoon's brother, and he could pay A-hoon.  A-hoon sent in the tea.  He went with A-hoon to have the tea weighed over.  A-hoon went to settle the account with Mr. Innes.

[The evidence having been read over, in the presence of the court to Leang-a-ting, he signed and confirmed it.]

Mr. Hogg requested that the evidence of the Plaintiff in a former case Tan-yaou-yuen v. Lindsay & Co.  in respect to this chop of tea, might be read.

 The Court refused but intimated that the Defendant might cross-examine the Plaintiff upon any documents he had in his possession.

Mr. Hogg requested that he might see the authenticated evidence of the former Court.

The Court refused the application.

Cross-examined by Defendant.

He told Mr. Innes the tea belonged to A-yaow.  He and A-hoon and the godown man weighed the tea and Mr. Innes took a note of it.  He told Mr. Hogg that the tea belonged to A-yaow.  He and A-hoon settled the tea with Mr. Hogg but no name was put in the book.  He and A-hoon settled the tea with Lindsay & Co.

 Defendant demurred to the action being brought by the Plaintiff on the grounds that if the teas were settled at all it was a settlement between Plaintiff and A-hoon and therefore the action ought to have been brought in the name of both.

The Court having considered the Defendant's objection could not admit it.  The teas were sent in and weighed over by the Plaintiff who pointed out A-hoon, the representative of the owner of the chop, as the party to whom the value thereof was to be paid.  Plaintiff and the party A-hoon acted in separate capacities - the first as broker and the second as watching the interests of his principal the owner of the teas.

Cross-examination continued.

He had no entry of the transaction in his Hong books beyond the entry of the weights now produced taken at the time he weighed over the teas.  He had no books.  Sin-qua never came with him in this transaction to Messrs. Lindsay & Co.'s office.  He never agreed with Sin-qua of the price of the tea as being 26 Tls. 2 m.  Sin-qua never paid him money on any occasion.

Defendant asked, - If Lindsay & Co. paid Plaintiff for his chop of tea, would he not be in Sin-qua's debt to the extent of some $3,000?

The Court was of opinion the question was irrelevant.

Defendant also asked.  If the Plaintiff be indebted to Sin-qua as above would he not be twice paid for this chop of tea, presuming a decision be now given in his favour.

The Court considered the witness not bound to answer this question.

SIN-QUA duly warned to speak the truth, stated: - He settled the chop Kwei-wan with Lindsay & Co. he settled it with Mr. Hogg.  A-ting said Lindsay & Co. would pay Tls. 26.  He said you had better try the teaman as to whether if Lindsay & Co. would pay 2 mace more, he would take it.  A-ting went to the teaman and came back and said he would take the 2 mace more.  He came and told Mr. Hogg that at 2 mace more he had settled the tea - this was at 5 o'clock in the evening, the office was shut and Mr. Hogg was in the verandah.  A-ting came to weight the tea but there was some trouble about its being country packed.  A-ting then came back to him and told him Mr. Innes wished to cut the price in consequence of its being Shanghai packed.  He came and guaranteed Mr. Hogg that the tea was country packed, if when in England it turned out Shanghai packed it was his business.  He then settled with him that the price should not be cut.  A-ting then came and agreed with him the weight of the tea which he accordingly ordered his purser to put in his Hong books.  If A-ting had not informed him of the transaction he should not have known anything about the weight of the chop of tea.  He had been in the habit of doing business with A-ting.  A-ting acts as his broker or purser.  He considers Lindsay &* Co. settled this chop of tea with him.  He had been in the habit of paying dollars to A-ting.  Teen-shang of the Fug-le-tong hong saw him settle with A-ting.

[The evidence having been read over to the wiriness he confirmed ands signed it, in the presence of the Court.]

TIEN-SHANG duly warned to speak truth, states: - He saw A-ting give Sin-qua the account of a chop of tea called Kwei-wan.  He had given money to A-ting on Sin-qua's account.  He did not know the price of the Kwei-wan chop.  He has known Leang-a-ting act as Sin-qua's purser but whether as a general rule or not he don't know.

[The evidence having been read over to the witness he confirmed the same and signed it, in presence of the Court.]

(Sin-qua produced his books in Court in which the entries referred to in the Plaint were found.)

SIN-QUA, states: - He settled the tea with Lindsay & Co., and A-ting settled the tea with him.  He had a running account with Messrs. Lindsay & Co. at the time.  He has been paid dollars by Lindsay & Co. since the tea in question was settled.  Since he went with A-ting to Lindsay & Co. he has been paid upward of 30,000 Taels by Lindsay & Co.  This was before he settled the Sin-shun chop.  This was settled on the 22nd April. (9th day, 3rd moon.)

[The evidence having been read over to the witness he confirmed and signed it, in the presence of the Court.]

A-HOON duly warned to speak the truth, states: - He was told by A-yaow to go with A-ting to settle the tea.  A-ting first of all spoke to Mr. Innes about the price of the tea, Tls. 26 per picul.  He went with A-ting to Lindsay & Co. and saw Mr. Innes, he went with A-ting and him to see Mr. Hogg.  Mr. Hogg spoke about that tea and the price.  Mr. Hogg wanted to pay the dollars in three weeks.  He went and asked A-yaow if he agreed for the money to be paid in three weeks.  A-yaow agreed p- he told Mt. Hogg this, and that he would come and get the money for the tea, and that A-ting should not get it by himself, but if with him he could, ort he could get it by himself.  Price Tls. 26 ¼ agreed to by Mr. Hogg.  He asked him his name he told him A-hoon, and showed hjis card.  On the 1st of the [??] moon he settled the tea.  Mr. Hogg wrote in his book, when he had finished A-hoon wanted to see a name but he said there was no occasion and he was to send the tea quickly.  He came and told A-yaow he had settled.  On the 4th he sent the tea to Lindsay & Co.'s godown.

On the 12th day he with Mr. Innes and A-ting weighed the tea.  On the 15th he went to Lindsay & Co. to see Mr. Hogg to settle the account for the Kwei-wan chop of tea.  Mr. Hogg asked him how many packages?  He told him 602 chests.  Mr. Hogg asked the Godownman who confirmed his statement.  Mr. Hogg told him to go to Mr. Innes to get the account settled.  He settled the number of chests and w eight with Mr. Innes.  In all Taels 10, 572 6m. was  due.  Mr. Innes agreed.  In a few days he wanted money and A-yaow told him to go to see Mr. Hogg to get the money.  He went and asked Mr. Hogg for it.  He told him if he wanted cargo he could give it now but if he wanted money he must wait three weeks.  He did not want cargo and waited three weeks.  He went again to Lindsay & Co. and saw Mr. Hogg as he wanted the money.  He went with him to Mr. Hogg and told him.  Mr. Hogg said Sin-qua owed him money - A-ting is Sin-qua's cousin and that the chop of tea had been put to Sin-qua's account.  He showed him that he came with A-ting and settled it, and he was to get the money as he told him first.  He objected to its being put to Sin-qua's account.  He went back and told A-yaow who with him came to Lindsay & Co. they saw Mr. Hogg and he told them he would not pay the money.

[The evidence having been read over was confirmed and signed by the witness.]

Cross-examined by Defendant.

He and A-ting settled the tea with Lindsay & Co. he has before sued Messrs. Lindsay & Co. in the Consular Court relative to these teas.  He then said he sold these teas to Lindsay U& Co. he then said A-ting had nothing to do with it except through him.

A-YAOW duly warned to speak the truth stated: - That these teas belonged to him, he knows nothing of Sin-qua and never told him to sell his tea.  When Mr. Hogg would not settle for the tea with A-hoon he went himself and saw Mr. Hogg who said that Sin-qua owed him money and A-ting was Sin-qua's cousin so he had put these teas in Sin-qua's account and would not pay him.  He told A-ting with A-hoon to sell these teas.  Sin-qua had absconded three days before he went to Lindsay's for the money.  He never went to Lindsay's before.

Cross-examined by Defendant.

He before stated that A-hoon and A-ting settled these teas with Lindsay & Co.  A-ting settled these teas and A-hoon was told to get the money and therefore A-hoon sued for it in the former action.  He does not know A-ting acted with Sin-qua before.  He was not Russell & Co.'s Compradore but he lives there, and declines to say why he is not Compradore there now.  He declines to say whether he has been in prison  lately or whether he ever took any dollars from Russell & Co.'s Treasury, and it is not Defendant's business whether he left Russell & Co. for misconduct or not.  He told A-ting to sell the tea to Lindsay & Co. and A-hoon to get the money.

[The evidence having been read over was confirmed and signed by witness.]

The Court adjoiurned until Thursday, 10th, at 11.

10th March, 1859.

HUGH INNES being duly sworn, stated:- That with reference to the tea in question he valued it and talked of settling it to A-ting and Sin-qua, to both together at one time and to each at different times, but A-ting he always considered to be Sin-qua's purser.  He was present when the tea was weighed and so was A-ting.  He produces his weight book which is a memo of the weight taken in pencil in the godown.  Hr swears that all which is written in pencil was written in the godown at the time of taking the weight.  It will be observed that Sin-qua's name is at the head of the page.  He put it there because he understood from Mr. Hogg that he had bought the tea of Sin-qua.  At one time he was of opinion the tea was not genuine country packed tea, and sent A-ting to tell Sin-qua to come.  A-ting and Sin-qua came together, and the latter guaranteeing that the tea was country packed they agreed to take it.  He agreed the total weight with A-ting.  He will swear that he did not agree it with A-hoon - that he did not know him - never recollects to have spoken to him except on one occasion when Sin-qua had absconded he applied for payment for the chop of tea in question, when he referred him to Mr. Hogg.  He will not swear that he was not present in the godown when the tea was weighed although he had no recollection of it.  His impression was that it was a transaction of Sin-qua's and he is certain that A-ting knew that it was so.  He has spoken frequently to Sin-qua about this chop of tea before it was settled and also in A-ting's presence.

R. I. FEARON of Messrs Augustine Heard & Co.'s duly sworn, stated: - That on one or more occasions on which they had connection with Sin-qua he was invariably accompanied by A-ting.  They always considered Sin-qua to be the principal and A-ting merely a subordinate.  Transactions they had completed with Sin-qua had always been entered in his name, and payment made to him though accompanied by A-ting who weighed the teas.  He had spoken to A-ting and Sin-qua both together and sometimes separately about the same chop of tea but always considered Sin-qua the principal.  He will swear that A-ting has weighed teas for which Sin-qua has received the dollars, and he had always considered A-ting as acting as subordinate to Sinqua.  The last of these transactions took place just before Sin-qua absconded, he thinks about May.

Defendant put in a certificate from Mr. Robert Thorburn to the following effect: - I hereby certify that Leang-a-ting and Sin-qua on one occasion came to my office and stated that they were acting together and wished to make arrangements for shipping some teas under advance.

DEFENDANT stated, - That two days after Sin-qua failed, A-ting's wife petitioned the Che-heen that Sin-qua might be found, in order to save A-ting from being troubled by the teamen on account of Sin-qua's debts.  The word used in the petition is that her husband "brokered" certain teas for Sin-qua.

The COURT accepted this as a statement from the Defendant but declined to receive it as evidence on the ground of not being properly certified.

HUGH INNES recalled upon his oath, stated; - [That] he recollected on one occasion, before they had any transactions with A-ting, Mr. Hogg called him into his office where A-ting and Sin-qua were together, they then both stated that any transactions that might be entered into by A-ting with them was on account of Sin-qua and should be treated by them accordingly - or words to that effect.  This was, he will swear, before he looked at any teas with A-ting or had any transactions with him.  This was to the best of his recollection about two months before Sin-qua absconded.  When he had conversations with A-ting about this chop of tea he could not swear that A-hoon was not present.  He never had immediate communication with him, but he will swear he never accompanied A-hoon and A-ting to see Mr. Hogg.  Mt. Hogg asked A-ting and Sin-qua each separately whether any transaction entered into by A-ting with Lindsay & Co. should not be treated as on Sin-qua's account and they both said it should be so.  He should not have weighed the tea in question had he thought it belonged to A-ting not would he have accepted A-ting's guarantee that it was country packed.  Mr. Hogg pointed out to him in the books of Lindsay & Co. entries showing that payments to the extent of about Tls. 30,000, more or less, had been made to Sin-qua after the date when they appeared together in Mr. Hogg's office, stating their interests to be the same and about Tls. 9,000 has to the best of his knowledge been paid to Sin-qua since the settlement of the Kwei-wan chop.

A-Le, godown-keeper to Lindsay & Co., warned to speak the truth stated: - That he recollects the Kwei-wan chop of Tea which came to the godown.  There was some trouble about Mr. Innes thinking it Shanghai packed.  A-ting came about it and called Sin-qua who [seewed] it was Country packed.  The coolies who brought in the Kwei-wan chop of tea said A-ting had sent it.

A-ting was present when the tea was weighed and another man came with him whom he does not know.  A-ting took the account and the other man overlooked him.

A-hoon being called was recognized by witness as the man who accompanied A-ting when the teas were weighed.

DEFENDANT stated that Young A-lum was in their compradore's room at the same time as A-ting subsequent to the absconding of Sin-qua and there were a quantity of tea men present who [???] came about Sin-qua's debts, and A-ting there [stated] that he and Sin-qua were one and the same in all transactions with Lindsay & Co.

LEANG A-TING, the Plaintiff, cross questioned.

Defendant stated: - That he has met Sin-qua on various occasions in Lindsay & Co.'s tea room.  He recollects having been in Mr. Hogg's office on one occasion with Sin-qua - Mr. Innes  did not come into Mr. Hogg's office then - he never told Mr. Hogg that he and Sin-qua were one and any money paid Sin-qua was the same as paid to him.  The first chop of tea he settled with Mr. Hogg was thr Sin-[shun] chop.  He never said that as the Kwei-wan chop was Sin-qua's, he could not sue Lindsay & Co. relative to it.  He don't know whether his wife ever petitioned the Cheheen after Sin-qua absconded, probably she did not.  He admits that he has had monetary transactions with his cousin, Sin-qua.  Sin-qua when he ran away owed him about $2,100.  He has been with Sin-qua to  Heard & Co.  but he has never weighed it.  When Sin-qua settled tea with Heard & Co. he received the dollars.  He has been to Mr. Thorburn (Turner & Co.) with Sin-qua but never told Mr. Thorburn that if he did business with him it was the same as Sin-qua.

SIN-QUA, recalled, states that he recollects on one occasion having been in Mr. Hogg's office with A-ting when Mr. Hogg asked if they were one and the same and if what A-ting did was on hjis account.  A-ting agreed that all he sold was to be put to his account and he was to settle with him.  he told Mr. Hogg that in any transactions although they were partners no money was to be plaid to A-ting, but to him only.

The DEFENDANT then read the following statement as his defence which was put in Court.

Mr. Hogg in defence said he would first comment on the evidence of A-ting.

The evidence of A-ting is to the effect that he settled this chop of tea with Messrs. Lindsay & Co. while the evidence of his own witness, You Yuen is to the effect that he settled them.  His other witness A-yow in this court on a former trial, but whose evidence in this former trial, together her with that of You Yuen and A-ting, the court refuses to allow me to see or to be read - then asserted that A-ting had nothing to do with the teas in question - so it would be really difficult to know who is the plaintiff except by accepting the grossest perjury.

The fact is apparently this - that A-ting now instigated by a man of the notoriously bad character of A-yow appears to assert any thing that is required and You Yuen with a lesson well learned by rote would back him up, but in his [eagerness] asserts too much.

Ayow never thought of claiming from A-ting the value of the tea until Sin-qua had failed and absconded and A-ting never thought of claiming from Lindsay & Co. or even asking then for payment, of the tea until - instigated by A-yow.

A-ting knew that although he had mentioned the tea to Messrs. Lindsay & Co. and weighed it yet that had had never absolutely fixed the price of sale with Messrs. Lindsay & Co. but that Sin-qua had so sold the tea to us that we knew no one else but Sin-qua in the purchase and that in weighing the tea and agreeing the weight with Mr. Innes he was simply acting as Purser or Clerk for Sin-qua to whose house he goes and tells him the weights and all particulars, that the transactions may be inserted in Sin-qua's books, as admitted, - acting precisely as he did in  a similar case with Messrs. Augustine Heard & Co. as see Mr. Fearon's evidence.

By an established custom of the trade here - a custom established by former ruling in this Court vide Kow ching le v. Lindsay & Co. and Hanbury  v. their Compradore and others - a Foreigner buying from a Chinese broker, knows nothing of who may be the owner of the tea.  The owner never or seldom appears in a transaction and is never known or held responsible for breach of contract or otherwise - the broker himself is responsible to the Foreigner he sells to for the fulfillment of his contract and I presume is responsible to the tea man for the payment of the teas - thus if this tea belonged to A-yow of which Messrs. Lindsay & Co. knew nothing at the time of purchase A-yow's claim is against the Chinaman whoever he may be to whom he delivered the tea.

We purchased the tea from Sin-qua - we have paid Sin-qua for it and we cannot therefore now be indebted to a man we never knew as a principal in the transaction or had any dealings with whatever.

There is no wish to "transfer" an account, for our account is with Sin-qua alone.

I repeat we bought the tea of Sin-qua and paid for it.

The whole of the prosecution arises from the failure of Sin-qua and the absolute dishonesty of A-ting.

The latter perfectly satisfied with Sin-qua up to the period of his failure - then instigated by a man of the character of A-yow - a man convicted of theft and suspected of various malpractices for years past, - as seen by the evidence of himself - and for some of which he is now under prosecution by Messrs. Russell & Co. - determines to endeavour to throw aside the responsibility of his previous acts and by perjury, which I submit must have been apparent to the court, (vide his absolute denial of transactions with Messrs. Heard & Co., which are swoern to by Mr. Fearon, even to the request of A-ting after Sin-qua absconded - that Mr. Fearon would alter accounts in the books from Sin-qua's to his own account_ - denied his entire action and interest for and with Sin-qua.

It is for the Court to decide on the relative value of the evidence of Mr. Innes, Mr. Thorburn's affidavit Mr. Fearon and Yuh-le-tong and Sin-qua also the collateral evidence of Sin-qua's own books in which an entry is found which could not possibly have been made there unless A-ting had agreed the account with Sin-qua.

Then again the petition of A-ting's wife exhibiting a close  connection between A-ting and Sin-qua - for she asks that Sin-qua may be found, that A-ting may be released to some extent from the demands of the teamen who trouble him for teas he had "brokered" for Sin-qua.  What more clear than that the teamen generally knew of A-ting's acting for Sin-qua?  She speaks of it as a well known matter!

Again A-lum hears A-ting declare his connection with Sin-qua - even after Sin-qua's failure!

There is in point of fact a clear mass of evidence against which the assertion of a man of A-ting's veracity we think will hardly stand.

Why! A-ting does not even any where swear that he alone settled the tea with Messrs. Lindsay & Co. - he always falls back upon another alter ago.  He has no books of his own to show the sale.  Sin-qua's evidence on the other hand is clear and explicit and I submit, worthy of every belief, corroborated as it is by Yuh-le-tung - the entries in his books, and the fact that on other points he agrees entirely with Mr. Fearon and Mr. Innes, while A-ting differs.

However, even if a settlement by the Plaintiff could be proved, it is only a settlement as from Sin-qua.

The fact being proved in evidence that A-ting acted in all transactions with us and indeed with various other people as partner and purser of Sin-qua, we maintain that no claim can lie against us from the plaintiff.

We made no contact with A-ting on his own behalf or on his own credit - any assumed contract with him was as servant or broker of a representative of Sin-qua.

It is a single question of Agency - and it is both mercantile law and custom all the world over, that a person dealing with the agent of a known principal gives credit to, and is bound by the principal.

Suppose we had sold to A-ting instead of paying him - we should not under the circumstances shewn in evidence sue him for the amount.  We gave him no credit.  The credit was given to the principal, and him alone could we sue.

Reverse the case as to facts and you have ours, A-ting gave us no credit.  He was not in a position to do so - but Sin-qua gave credit and Sin-qua is the person to sue.

Partnership is not the question - it is a case of Agency - but if partnership were the question our case would be even stronger - vide Chitty - Commercial law 9th Edition 1814 - chap. 27 - p. 465 and 467.  It is not a question that we wish to "transfer" the teas in question to Sin-qua's  account, they have never been placed to any other account - they were clearly and distinctly bought from Sin-qua and as we received teas from him and credited his account, so we paid him cargo and cash and debited his account the fact being that we paid him since the period when A-ting appeared and declared his liability with him (say about the 22nd April) upwards of 30,000 taels - which but for the receipt of these and other teas would never have been paid him - indeed for these very teas he may be considered paid in so far as since their purchase he has received cash from us to about their value.

If A-ting therefore has any claim to bring it must be against Sin-qua.

By the rules of Practice of the 20th October 1853 - No. 92 - we believe that decisions of this Court are to be come to on the principle of English law, according to this sound criterion.  A custom that Chinese traders -  after holding themselves out as acting together and inducing British merchants to give them credit as such, repudiate the character and compel those who contract with them on the faith thereof to pay them twice over - for such would be the effect of an adverse decision to us - must be both unjust and illegal and fraught with danger to the general commercial interests here - for who could then protect himself from then collusion  of any two rogues that chose to appear.  We would finally point to the fact that an adverse decision to us in this case would actually bring in A-ting a debtor to the estate of Sin-qua - he having already drawn from Sin-qua in general account within some 6,000 Taels of the amount here claimed.

I leave this in your hands fully satisfied that the Court will not sanction such a gross attempt at fraud as is attempted in the bringing forward of this claim.

The Court adjourned till to-morrow at noon.

11th March, 1859.

 DECISION.

 The Court having duly considered the evidence in the case finds that the contract for the delivery of the Kwei-wan chop of tea was made with, and that it was delivered and weighed over by, the Plaintiff with the cognizance and under the authority of the owner thereof whose representative A-hoon also attended the weighing over and otherwise appeared in the transaction. 

That the Defendants have failed to prove that the said chop of Tea was settled with them for or on account of Sin-qua; accordingly the Court decrees that the Plaintiff do recover from the Defendants the sum of Nine thousand three hundred and ninety-one taels, two mace five candareens.  (Tls. 9,391.2.5).

IN reference to the above case of Leang-a-ting v. Lindsay & Co., the defendants have requested us to publish the following Paper and Protest, which they were forbidden to read in Court.  The latter has been officially handed in to H.M.'s Consul.

MEMORANDUM.

Before proceeding with the case for the defence to-day I would be obliged id H.M. Consul could conveniently give me any information as to why and upon whose suit Sin-qua, one of the most important witnesses for the defence was yesterday, instantly on the adjournment of the court, arrested and imprisoned in the British Consular Jail.

Sin-qua has requested me to act for him in this matter as he is quite ignorant as to the reason of this sudden imprisonment, and naturally connects it with his giving of evidence in our favour yesterday.  I do not recollect that in giving his evidence yesterday, he acted in any way wrongly, although I do recollect that H.M. Consul had to threaten to punish, You Yuen for his insolence.

With the fear of imprisonment before him, I maintain the man is intimidated.

(Signed), JAMES HOGG.

PROTEST.

SHANGHAI, March 10th, 1859.

ON behalf of Messrs. Lindsay & Co., I do hereby prfotest agaibnst the seizujre and imprisonmen t of Sin-qwua, a principal witness for the defence, in trhe case of Leang-a-ting v. Lindsay & Co.

His seizure in Court, at such a time, and in such a manner being an intimidation to the Witness himself, and a direct intimidation to all other Chinese witnesses for the defence.

I further do hereby protest against the detention by H.M. Consul, or by his order, of the books of Sin-qua which were produced by Lindsay & Co. yesterday simply as evidence of certain  entries bearing on the case at issue.  The detention of the  said books having prevented Messrs. Lindsay & Co. following up the train of contradictory evidence given by A-ting yesterday to the effect that he never had any transaction with Sin-qua and was never plaid any money by him.

The entries in the book might have thrown light on this subject, which it is impossible to discover in the case of Chinese books, in the time occupied by the Court.

Against the above acts and the consequences thereof I do hereby protest and hold liable H.B.M. Consul.'

(Signed), JAMES HOGG.

 

Source: The North-China Herald, 18 June 1859

The cause of Leang-a-ting v. Lindsay & Co. is the first Civil Suit which the Hon'ble Mr. Bruce has, in his capacity of Chief Superintendent of British Trade in China, been called upon to decide.

It will be remembered, from the Minutes of the cause which we gave in our issue of 12th March last, that after a hearing which extended over four days, H.M. Consul, assisted by three assessors, pronounced a decision in favor of the Plaintiffs.  This decision the Defendants appealed against, and before pronouncing a final Judgment, Mr. Bruce ordered that Mr. Hogg should be examined on oath as fully as possible on the circumstances attending the transaction, Leang-a-ting and A-yaou having both been examined as witnesses at the hearing of the case.

Mr. Hogg was consequently examined and on his evidence being added to the minutes and other documents transmitted with the appeal, Mr. Bruce has pronounced his decision as follows:-

I have read with attention the papers in the case of Leang-a-ting versus Lindsay & Co. on which the decision of the Consular Court is founded, together with the evidence of Mr. Hogg which I directed to be taken subsequently.

The question at issue is, whether the Plaintiff is to be considered to have acted on behalf of A-yaou or whether the transaction is to be held to be one in which Sinqua acted as principal, and the payment therefore sufficiently made by the entry of the Tea in Sinqua's account.  If the intervention of A-yaou in the sale is established I do not think it can be met by the same presumption arising from the previous conversations quoted in favor of the joint interest of Sin qua and Leang-a-ting in sales effected by the latter, and it is unnecessary to pronounce an opinion on the alleged partnership existing between them. I look upon the question therefore as entirely one of fact peculiarly fitted for the decision of a Consular Court assisted by assessors.  A Judge who has to decide merely on the written deposition is in a far less advantageous position to arrive at the truth in the midst of such conflicting evidence as that under review, than the Consul and assessors who heard the evidence orally given and who had an opportunity of weighing the bearing and manner of the witnesses.  I should treat, therefore, an appeal under such circumstances as an application for a new trial, and should only grant it, if there was a conviction in my mind that the decision was not in accordance with the evidence.'

After the most careful consideration my conclusion is that there is no sufficient ground for such a cause - the active intervention of A-hoon in the delivery of the Teas is established by the evidence of a witness in the defendants employ and I am of opinion that A-yaou must be thereby held to have retained the ownership till the teas passed into the hands of Messrs. Lindsay & Co.  Leang-a-ting having been employed by him as a broker is entitled to sue for the value, and I hereby confirm the decision of the Consular Court to that effect.

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