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Colonial Cases

Probst, 1866

[master and servant]


Mixed Court, Shanghai
21 September 1866
Source: The North-China Herald, 29 September 1866



September 21st.


   Mr. E. M. SMITH charged three Chinese, managers of the theatre in the Canton Road, with having induced twenty tenants of his, actors in and occupiers of the Soochow theatre in the Maloo, to leave, by making false use of his name.  The defendants had, he asserted, told these actors that he was on the point of closing his theatre, when they would lose their employment, and they had better take employment in the Soochow theatre now it was offered them.  In consequence of this they had left.

   Mr. LAWRANCE, who appeared for Mr. Probst, the owner of the theatre in the Canton Road, asserted on the other hand that the actors had left voluntarily, and was ready to produce them to affirm it.

   Mr. SMITH produced a man who had overheard one if the defendants make the statement alleged to in the charge.

   He explained that the theatre on the Race Course had been leased by him to Wang-tin-yih, who would fail in his agreement in consequence of the actors all leaving, and consequently the loss would fall on himself.  The fact was that the defendants had been trying to start a new theatre under the production of some Prussians.  They could not get these actors to join them by fair means, so they told them that he (Mr. Smith) intended to sell his theatre, and that they had better accept new employment now it was offered them.  Very serious loss would result from this false statement.

   Mr. LAWRANCE was instructed that the Company performing in Canton Road had formerly been engaged in the theatre belonging to Mr. Smith.  A Company had previously been engaged from Swatow, but they did not answer, as the audience found it difficult to understand their language, and consequently the Soochow Company had been engaged in their stead, but by fair means and not by threats.  They had said that a large sum owed them by Mr. Smith's compradore, of which they could not obtain payment.  They were under no contract and were consequently at liberty to leave at any moment.  He result was, that they did not go to the other theatre and were performing last night, when the police entered and arrested two men.  The effect of the appearance of the policemen was of course to drive away the audience.  As the warrant was not counter-signed, as it should have been, by the Prussian Consul, Mr. Probst instructed the manager of the theatre not to recognize it, and accordingly a second visit of police failed in the object of arresting the third defendant. 

   The charge was most unjustifiable, and the conduct of the police was most unjustifiable.  But this was not all, extraordinary means had been resorted to by Mr. Smith's compradore to stop the performances at the theatre in the Canton Road, amongst which he might mention one which had a great effect on Chinese.  A Chinas woman had been induced to walk across the stage during the performance.  This to a native audience was something fearful, and all the spectators at once left.  Assuming the statement of the actors to be correct, that they were voluntarily in the employment of the new theatre, the ore sent action would be reversed; and he (Mr. L.) would certainly advise them to being an action - not against Mr. Smith unless it could be proved that he had instructed the compradore - but against the latter, for obstructing them in their profession.

   Mr. SMITH said the actors had a perfect right to make an agreement with whomsoever they chose; but the defendants had no right to use his name falsely, to induce them to leave one theatre for the other.  In reference to the non-countersignature of the warrant, it was not generally known that the theatre belonged to Mr. Probst.

   Mr. PROBST said the theatre was his and had his name on it.

   Mr. SMITH was not previously aware of it.  He repeated that the managers had failed to induce his tenants to leave buy offering them higher wages, and had now decoyed them away by the mis-statement that the theatre was about to be shut, and they had better take new employment when it was offered to them.  The consequence was that the theatre was empty, and the neighboring ten houses and all the adjacent property would be vacated in consequence.  Mr. Lawrance had no right to bring in an irrelevant statement regarding payment of wages.  Had Mr. Probst an agreement with the actors?

   Mr. PROBST had not yet, but there could be one entered into.

   Mr. SMITH enquired, then what right he had to stay an execution of the warrant to them.

   Mr. PROBST said the police had no right to enter his house without the warrant being countersigned by his Consul.  The theatre was hjis house.

   Mr. SMITH. - Will you allow me to ask -----

   Mr. PROBST had not come as a witness.

   Mr. SMITH thought as Mr. Probst had employed Counsel, he had made himself a party to the case and ought to reply.

   The man whose arrest Mr. Probst had opposed was now produced, Mr. Probst having no objection to his appearance and having desired his attendance.  The evidence of the lessee of the theatre and his wife, who had been instrumental in engaging trhe actors, was taken; but was totally irrelevant, neither of them having heard the defendants assert that the Maloo theatre was about to be shut.

   The CHINESE MAGISTRATE having expressed his opinion that the case was not proved, Mr. Smith suggested that all the parties concerned on both sides should be sent into the city.

   Mr. LAWRANCE objected to the proposal, as the theatre would be seriously damaged by such a course.

   The CHINESE MAGISTRATE decided that the case was not proved.

   Dr. JENKINS recommended that Mr. Smith should bring the case in a different form before his own Consul, and

   Mr. SMITH expressed his intention to act upon the suggestion.

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