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Colonial Cases

MacDonald v Aspinall [1856]

[absconding debtor]

MacDonald v Aspinall

Supreme Court, China
March 1856
Source: Sydney Morning Herald 10 June 1856

China

Consular Court - Press reports

AN ABSCONDING DEBTOR. - IMPORTANT DECISION.

(From the China Mail of 20th March.)

A CASE, important in itself, and of especial interest as being the first of the sort dealt with under the treaty, occurred during the past week.  The paragraph and correspondence about Mr. Aspinall in our Overland shewed that he had left Shanghai without the knowledge or consent of his creditors, with the intention of proceeding to Europe by the Overland Mail.  The steamer Confucius, however, was despatched with the necessary proofs for his detention; and the Attorney-General having been applied to on Thursday afternoon, lost no time in brining the matter to an issue; so that, although the case was carried from one tribunal to another, before four o'clock on the following day, Mr. Aspinall was under heavy bail to return to Shanghae.  From the subjoined report of the case in the Supreme court, it will be seen that the Chief Justice declined to interfere, the case being one peculiarly within the Jurisdiction of the Superintendent of Trade, who seems to have acted with much promptitude, but without undue severity for the defendant, and in utter disregard of Mr. Consul Robertson's lofty refusal to recognise the assignees.

   It is here deserving of note that at the time of the insolvency it was arranged that Mr. Aspinall should make the assignees of the Chinese creditors assignees for winding up his affairs, the creditors, on that condition being willing not only that he should be permitted shortly to proceed to England, but to allow 2500 dollars (equal to about £833) for the expenses of himself and family overland.  But, throughout, Mr. Aspinall seems to have acted under bad advisers.  For some cause, he departed from the agreement and suggested other assignees, but they were not approved of by the creditors.  Mr. Consul Robertson, who, to bring the matter to an issue, was applied to for a summons on behalf of one of the creditors, then said that the affairs were in the hands of the Chinese authorities and his own; but it would appear the creditors successfully resisted such combined authority; and thus the result has been brought about, told in the follolwing report:

MACDONALD AND ANOTHER (on behalf of certain creditors) v. ASPINALL.

   This was the case of the absconding debtor.

   A motion was made on behalf of the Chinese creditors before the Chief Justice, this afternoon in Chambers, by the Attorney-General, for a Writ of Capias or Warrant to take the body of the defendant, and to convey him to Shanghae, to abide the adjudication of the Consular Court, in the above creditors' suit.  The application was not made under the statute or common law, nor under the local Ordinances, but under the provisions of the General Regulations of Trade, the Supplementary Treaty, and the Order in Council of 1853, whereby the jurisdiction of the Consular Courts is regulated.  An affidavit of two of the Chinese creditors, sworn that day, was read in support of the motion.  The deponents stated that the defaulter was justly and truly indebted un to them in 153,000 dollars for goods sold and delivered - that the above suit was pending against him - that they concurred with the plaintiff therein - that the defendant had absconded from the Consular jurisdiction on the 8th, with intent, &c., and come to Hong Kong - that the deponents on  behalf of themselves and the other creditors had come down in quest of him - and that they desired to have him taken into custody and brought back to the place from whence he had come.

   The Chief Justice observed that the application was made to him as one of the "public authorities", mentioned in the treaty.  He however had no power to adjudicate upon the case, should the defendant be taken in to custody, the matter being one of an alleged offence against treaty rights and obligations.  The chief superintendent alone had the jurisdiction over such cases; and as the chief superintendent was also one of the public authorities, his Lordship thought a motion for the warrant of arrest ought to be made to his Excellency, and not to himself.  His Lordship on these grounds refused the application.

   Mr. Sturgis, acting under power of attorney, for the creditors in Shanghae, communicated his Lordship's decision the same night to the Chief Superintendent.

   A summons having been issued to all parties, including the Chinese creditors from Shanghae, the case was heard before his Excellency on Friday last in the Council Chamber.

   The offences alleged against Mr. Aspinall having been in part confessed, his Excellency said, that before proceeding to pronounce for the penalties of fine and imprisonment specified in sections 5 an d 6 of the Order in Council, he would advise Mr. Aspinall, subject of course to Mr. Sturgis's consent, to agree to return forthwith to Shanghae, and perform his obligations towards the Consular Court at that place.

   Mr. Aspinall said he was quite ready to do so, and that although he had given the Consul no notice of his intention to come away, he felt at the time that he was not bound by any obligation to stay there.  It was true that he had some time before passed his word of honour to the Consul not to leave Shanghae until the return of the Formosa from her last voyage to Hong Kong; but that vessel had returned to Shanghae on the 23rd February, and he had neither renewed, nor been asked to renew, his promise not to leave the place, down to the 8th March, when he embarked on board of that vessel, for Hongkong.

   Mr. Sturgis having consented to  waive the penalties incurred by Mr. Aspinall, and to his being bailed, his Excellency, after consulting with the Attorney-General, ordered that bail be put in and perfected by Mr. Aspinall at or before four o'clock that afternoon - himself in L1,000 and two sureties in L.500 each - for his return to Shanghae on the follolwing morning at 9 o'clock on board of the Erin; otherwise a warfront to issue for taking him thither in custody on board of that vessel or the Confucius.  Bail was put in and perfected accordingly, and, we understand, Mr. Gibb and Mr. Johnson were the two sureties.

   Mr. Aspinall, in compliance with the above conditions, proceeded next morning by the Erin.  In these altered circumstances, his family, who were to have sailed for England that afternoon on board of the Norna, changed their destination also, and accompanied him to Shanghae.

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