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Colonial Cases

Bonny v. Hockly, 1866

[Chinese government, jurisdiction]

Bonny v. Hockly

Supreme Court of China and Japan
31 May 1866
Source: The North-China Herald, 2 June 1866



May 31st, 1866.

Before C. GOODWIN, Esq.

N. B. BONNY versus J. M. HOCKLY.

The plaintiff claimed Tls. 238.30 for goods supplied and balance of salary due.

Mr. LAWRANCE wished to make a preliminary objection to the jurisdiction of the Court in the case; in the sense that, Mr. Hockley being a servant of the Chinese government, could not be sued in this Court for matters connected with the Chinese government.  The Harbour Master's department, though separate from the Customs, worked in connection with it on a similar footing; and if the Court held that the Harbour Master was personally liable for the salaries of his subordinates, the Commissioner of Customs must also be liable for the salaries of the employees in the Custom House.  He would beg the attention of the Court to a dispatch written by Mr. Burlingame to Mr. Seward and endorsed by Sir Frederick Bruce, ruling that no foreigner in the employ of the Chinese government was amenable to the Consular Courts, in respect to acts done in his official capacity.  The remedy lay in the hands of the Chinese Court.  This was an important point and he (Mr. L.) was assured that the Commissioner of Customs was anxious a decision should be given as to whether, in the event of his being sued under similar circumstances, he could be brought into the Supreme Court, or whether, seeing that the Chinese government only was concerned, it would be held that he was not personally liable.

The COURT saw nothing in the plaint to connect the defendant with the Chinese service.

Mr. LAWRANCE pointed to the bills sent in by Mr. Hockly, which alluded to goods supplied for the "Harbour Master's" department.

Mr. BONNY only recognized Mr. Hockly as a private individual, and looked to be paid by him; - not as a Chinese official, or on behalf of the Chinese government.

THE COURT considered the case was sueable in this Court.  The whole case turned on the question whether Mr. Bonny received his orders from the Harbour Master as a private individual, or as an official of the Chinese Government?

Mr. LAWRANCE urged that Bonny must have known he was in the employ of the Chinese government, although Mr. Hockly was his immediate superior.

THE COURT still thought it was competent to it to entertain the question; it would, however, reserve the point for consideration.

Mr. LAWRANCE said, assuming that the Court had no jurisdiction, it would be trying the case for the Chinese government.  The sum was small in this instance; but the question might become very important in the event of a larger amount being at stake.

THE COURT suggested that Mr. Hockly might have given orders in such a way which would not render the Chinese government responsible.

Mr. LAWRANCE, after reading extracts from Mr. Burlingame's letter, said that in a previous case the Consular Court had refused to recognize a summons issued against Mr. Fitzroy in respect of damage done to goods at the Custom House.  His client, however, had not the slightest objection to this case being gone into.

NATHANIEL B. BONNY. - At present I am unemployed. I was formerly engaged in the Harbour Master's department at Woosung.  I was there about three years.  Mr. Hockly was in the habit of giving me verbal orders to get certain work done if my boat wanted repairing.  All such outlays have been paid except the last.  The last repairs were done by another person. Mr. Hockly did not send me a boat, so I hired one.  The anchor I found.

To Mr. LAWRANCE. - I signed the salary book kept in the office of the Harbour Master's Department.  The letter you read is a copy of a letter Mr. Hockly wrote to me regarding the anchor.  Mr. Hockly was aware that the anchor was recovered from the river and given me by Capt. Endicott.  In the presence of a number of gentlemen in my dining room Mr. Hockly said that will pay you very well.  Mr. Hockly never claimed the anchor until the day I was leaving.  It was given me in the presence of Mr. Dye.  I attached it to the tide-pole for my own convenience.

Mr. LAWRANCE said Mr. Hockly had always been under the impression the anchor belonged to the Chinese Government; but after what had passed he was willing to give it up.

J. M. HOCKLY. - I am Harbour Master at Shanghai in trhe service of the Chinese government.  I have several employes under me.  They are paid at the end of each month.  The Chinese government make a certain allowance every month for the expense of the office.  If there are any extra expenses incurred, I send the accounts to the Commissioner of Customs, who forwards them to the Taotai.  Mr. Bonny was one of those whose salary is remitted every month by the Chinese Government.  Mr. Bonny has certified bills of expenses incurred at Woosung.  I did not give instructions for the purchase of the boat charged.  I swear that I never gave him instructions to buy it.  I should remember it if I had.  In regard to the salary claimed, Mr. Bonny was ill in consequence of a fall.  I explained to him that he would have to find a substitute.  The salary of the substitute was deducted from Mr. Bonny's pay.  If I had advanced it, I should not have got it refunded by the Chinese Government.  They always expect a substitute to be found in case of sickness, especially where that sickness is incurred in the pursuit of private avocations.  I gave no order for the repair of the six=-oared gig and jolly boat.  The bill was not handed in until six months after the repairs had been executed.  Even if I had given instructions the bill ought to have been sent in at once.  I have no reason whatever to doubt t that Mr. Bonny considered he was in the employment of the Chinese.  He knew the salaries were derived from the Chinese government.  There could not be a question or doubt as to his knowing he was in the employment of the Chinese government.

To MR. BONNY. - The employes in the Harbour Master's office are paid by a cheque signed officially by me, drawn on the Chartered Mercantile Bank.  By officially, I mean that I sign Harbour Master after my name.  I remember supplying the the department at Woosung with time pieces.  Your explanation of your reasons for getting them was sufficient.  The bill was presented 18 months after they were bought.  I remember being taken off a junk in a six-oared gig the summer before last.  I cannot say I remember the boat leaked.  There was a heavy sea through which we could scarcely pull; this caused the water in the boat.  I do not remember speaking to you about a gig which was near your house.  I remember your speaking about a four-oared gig.  The conversation you allude to did not occur in September.  I should not think anything had been done to the six-oared gig for a year.  She was in so disgraceful a state that I was near condemning her.

ALFRED GARDNER. - I have seen the six-oared gig used at Woosung, referred to by Mt. Bonny.  She was in a very bad state.  I should not think she had had a carpenter near her for two years.

ALEXANDER GRANGE. - I succeeded Mr. Bonny at Woosung.  I considered myself in the employ of the Chinese government.  I know trhe six-oared gig.  She was in a very bad state when I got her.  She had no appearance of having been repaired recently.

To Mr. BONNY. - I saw no appearance of a new plank or planks in the boat.  Mr. Hockly engaged me verbally to act temporarily as your successor in the Harbour Master's department.  It often happens that a boat has been repaired, and the appearance of it wears off in a few months.

Mr. LAWRANCE said it was hardly necessary to trouble the Court with any observations.  Assuming that the point of jurisdiction over the defendant as a Chinese official was reserved, he (Mr. L.) would merely refer to one or two items in the account rendered.  It was very extraordinary that, if Mr. Bonny really held authority for the disbursements, he did not press for payment before.  He waited until after he was dismissed and had plenty of time to take up old grievances and convert them into items against Mr. Hockly.  As to the sum of Tls. 25 for an anchor and chain, Mr. Hockley was satisfied to yield that, as Mr. Bonny swore so positively to its being his and not belonging to the Chinese government.  But for the money said to have been advanced to Mr. Broaddhurst, Mr. Bonny was bound to pay that out of his own salary which he duly drew during the period of his incapacity.

The Court had been informed upon oath as to the mode in which Mr. Bonny was employed, and if Mr. Hockly were to be held to be bound to supply a substitute during Mr. Bonny's illness or incapacity, it would be quite contrary to the regulations under which all the subordinates in the Custom House were employed.  As to the Tls. 31 and Tls. 10, Mr. Hockly denied his liability upon two grounds: - first that inasmuch as he was a Chinese official he was not amenable to the jurisdiction of the Court in a question touching his public capacity, and secondly because he had given no authority for the expenditure.  It was unreasonable to suppose that Mr. Bonny could recover the sums demanded so long after they were alleged to be due when there was so much smaller a chance than before of verifying them.  It was quite clear that Mr. Bonny knew perfectly well that he was a servant of the Chinese government.  His attempted equivocation under cross-examination was a sufficient proof of that.  He was a servant of Mr. Hockly's, Mr. Hockly being himself an employe of the Chinese government, and it was in this latter capacity only that he could look to Mr. Hockly.  The signing of the salary book in the Harbour Master's office proved this, as did the signature of cheques for salary, &c., by Mr. Hockley as Harbour Master, which would not have been done had Mr. Hockly employed his subordinates in a private capacity, and in doing this the Court was supported not only by the fact being notorious that Mr. Hockly was employed by the Chinese government, but also by the recognized principle in the Custom House that none of the employes can look to the heads of their various departments for  salary or anything else. They have no ground to go upon if they attempt to look to their employes as private individuals.

If Mr. Bonny had any claim, it must be submitted to the Chinese government, and Mr. Hockly was still willing to submit it, as he had offered to do in his letter of 20th April.  In case, however, of the Court expressing an opinion that Mr. Bonny had a claim against the government, Mr. Hockly would of course reserve the right of testing the accuracy of the claim laid.

Judgment was reserved.  [NOT FOUND.]

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