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Colonial Cases

Le A Do v. Jones, 1869

[trover]

Le A Do v. Jones

United States Consular Court, China
9 February 1869
Source: The North-China Herald, 16 February 1869

 

U.S. CONSULAR COURT

February 9th, 1869.

Before G. F. SEWARD, Esq., and Associates

LE-A-DO v. J. H. JONES.

Claim for $1,000.

Mr. Eames, in opening the case, stated: that although it was under the consultation  of the Court described as a action  of Wrong, it was more strictly an action of Trover; that he ascribed no moral wrong to the defendant, he only charged him with illegal tort; and that the whole case rested on the point, whether his conduct rendered him liable or not, which he considered it did not, and quoted Chitty on Pleading, and Pickering Rep. 545, and the United States Digest 587, as showing the harmony existing between English and American Law on the point.  The learned Counsel said if he interpreted the law aright he would be able to show not only that the money was on board, and that the defendant did, directly or indirectly, take it, but that there was no justification for the act.

LEANG-WE-SANG, a Clerk in the native Post Office: - I am employed as a bookkeeper in the post office, I remember in November giving money to a cousin of mine to put on board the streamer, the amount was $1,350.  It was contained in three parcels one 400, one 450, and one 500.  It was put on board the Hangchow to be carried to Ningpo to a branch of the same establishment, on the 10th of the 9th month.  I only got back $500, which Le-a-do my cousin paid at Ningpo.  He carried money several times before.

Cross examined: - The bags were a kind of matting, and the dollars were in parcels of 100 each.  The 500 were paid in Ningpo on the 14th of the 9th month.  I gave my cousin 2,700 cash for carrying it.  The commission generally is two cash per dollar.  It is a good way to send money.  I know that the freight is 2 ½ per thousand.  Small sums are not carried.  Le-a-do was employed in the steamer as fireman.  I paid Le-s-do the same as I would have paid the agents for the steamer.

LE-A-DO: - I was employed as fireman on the Hangchow.  I was employed there in November last.  Leang-We-sang gave me money to taker to Ningpo on the 10th day of the 9th moon, amounting to $1,350.  I sawed it put up in the parcels in packages of $500, $400, and $450.  A man named Lee Yun-tsu was with me when I received them.  A coolie carried them to the steamer on a bamboo.  They were first taken to a sampan and from thence to the steamer.  The coolie did not go in the sampan, he and Lee Yun-tsu took them from the sampan and out them in the Engine room.  They were then put into a box and pout in the Tool room and Lee Yun-tsu locked them in there and took away the key.  I was standing by him at the time.  It was about 10 o'clock when they were put in there.  At 10 o'clock on the following day I gave the key to the first assistant Engineer Lee Yun-tsu wass permitted to go in that room, therefore he kept the key.  The vessel arrived at Ningpo at half past 7.  After the door had been locked I and lee Yun-tsu told the first Engineer, that there was money in there, and Mr. Jones said it was his and he would not give it back.  When the steamer got back to Shanghai, I and two other men asked for the dollars and Mr. Jones said he would not give them back, but would send them to the Hong.  Mr. Jones also said that we would have to pay him $10,00 each, and the head fireman become security for the money.  The second Engineer was not there.  Lee Yun-tsu opened the tool room, and when we looked for the dollars there was only one package left.  The foreigner wert in as well.  The package contained $500.

Cross examined: - The dollars were done up in paper and put into three bags.  They arrived at the steamer at 4 o'clock.  I did not see any foreigners on the deck.  The second and fourth engineers were below when he went down.  I did not speak to anyone when I went on board.  I never was told before not to bring dollars before.  I have had dollars taken from me and the freight deducted from them and returned.  I know there is a treasury on board.  I was paid 2,700 cash for carrying the money.  I have never carried anything else but dollars.

LEE-YUN-TSU, sworn: - I saw the dollars tied up in bindles of a hundred and put into bags in the Post office.  I brought them to the steamer and put them into a small room, the engine room, and locked them in a small chest with a padlock.  I kept the keys from about half past three till ten o'clock on the morning of the 11th, when I gave them to the second Engineer, who wanted to get out some chalk.  The steamer was then at Ningpo.  She arrived between 7 and 8 o'clock.  When I arrived at Ningpo I went to Mr. Jones for the key.  This was about 9 o'clock and I told him I wanted to get out the dollars.  The second engineer was present when I asked him.  Mr. Jones said he would not give me the dollars, but that he would send them to the Custom House.  I afterwards got the key from the second engineer, and found only $500.  I do not know where the remainder are.

Cross examined: - I left the dollars outside the door until arrival at Ningpo, when they were given to the post office man who came on board for them.

This finished the case for the plaintiff.

Mr. BIRD in opening the case for the defence desired to make a few comments respecting the nature of the action, which was in reality, and so expressed in the petition of the plaintiff to the Court, an action of Detenue for unlawful detention and not one of Trover for converting to his own use the subject of the present claim, as asserted by his learned friend Mr. Eames, the consideration of which induced him to advance the plea of justification; and even to support an action of Detenue it should be clearly shown that the detention  had been wrongful or injurious, and in this case there had been no evidence of such produced.  He then quoted Addison on Wrongs p. 384, which was the leading authority in England on the subject, and thought, in the absence of evidence of wrongful taking away or converting to his own use, and action of detenue could not be maintained; for defendant's conduct was not liable, it was mere enforcement of orders.

JAMES JONES: - I am chief Engineer of the Hangchow and have full charge of the Engine room.  I remember starting for Ningpo on the 24th of November.  On this occasion the first assistant said that the orders given were broken, as five or six bales of goods were stowed in the Engine room.  I told him to lock them up.  I arrived at Ningpo between 6 and 7 o'clock.  I wanted some chalk and sent the first assistant to get it.  When he returned he said, "fancy, the firemen say they have dollars in the store room."  The plaintiff asked to take his things ashore, but made no mention of dollars.  I answered no, and said if he deceived the Customs of Shanghai by smuggling he would bring them back again.  I have given strict orders that no merchandise should be allowed with the Chinese employes.  It was to enforce these orders I gave the refusal.  I did not say the dollars belonged to me.  No. 1 Fireman asked me also to allow him to take them.  When I arrived at Shanghai I told them to take their things away and never to bring the like again" and said "you, should give me $30 for even allowing this."  I n ever saw the dollars until I was told that two bags of them had been lost.  The bale was said to contain dollars they did not take away, but left to go back again to Ningpo.  There is a treasury room on board.  Dollars pay freight.

Cross examined: - I did not know about the number of dollars at Ningpo.  The compradore and first officer take charge and are liable for treasure and merchandise.  It would be my duty to report it.

Re examined: - If I had thought that the amount was so large I should certainly have informed the Captain of it.

GEORGE WASHINGTON ANDREWS, sworn: - I remember on several occasions the firemen having dollars in opposition to orders, and I had often forbid them to take them, under pain of forfeiture of the amount smuggled.

Cross examined: - The Engineer has nothing to do with freight.  I don't remember telling him about extra freight to be charged.

DEMOIDRAS SPEDDING: - I am first assistant Engineer of the Hangchow.  On the voyage to Ningpo on the 24th I saw in the Engine room some packages of merchandise.  I told the Engineer and he told me to lock them in the store room.  They varied from 2 to 6 cubic feet in side.  I was aware that there was an order against goods being allowed in the Engine room.  On the morning of our arrival at Ningpo between 10 and 11 o'clock, requiring some chalk, I sent an oilman to get me some and he returned saying that there was none.  I knew that there was some but found the room locked up.  I got the key and took out the chalk but did not remark dollars.  I locked the locker, but not the store room, which I told the store room keeper to lock. He brought me the key about one hour afterwards.  I was present at the conversation between the firemen and defendant when the former asked permission to take the things on shore.  Permission was not given, as the chief Engineer said he would put a stop to smuggling.  I saw no dollars aboard.  On out way back the store room was o\pen for about 45 minutes.  When we arrived at Shanghai the store room was opened to let the Chinese take away their things.  They then said two bags were missing.  There was a second key to open the locker which I found out on our return to Ningpo.

Cross examined: - I first heard the amount of dollars at Shanghai.

GEORGE LOCKE, Fourth Assistant Engineer: - I remember the First Engineer calling me down and showing me the two keys which opened the locker.

Mr. BIRD then summed up the case for the defence, and Mr. EAMES was of opinion that if his Honour would consider fully the authorities which he had cited he would see that not only an action of trover did lay but also an action of Trespass, and that his case was clearly proven.

Judgment.

The petitioner was a fireman on board the steamer Hangchow, at the date of the circumstances related in the petition, and the defendant was Chief Engineer.  To the petitioner was given by a native Post Office establishment at Shanghai, an amount of 1,350 Mex. Dollars, which he undertook to deliver to a corresponding officer at Ningpo.  The petitioner and another Chinese, also an employe in the engine department of the Hangchow, put the money into a locker in a store-room pertaining to the engine department.  They locked the locker, one of them retaining the key.  On the voyage to Ningpo the first assistant engineer found some bales of merchandise in the engine room, which had been brought there by some of the Chinese employes, clandestinely.  He reported this to his chief, the defendant in this case, and was directed to put the bales in the store-room, and lock the door, which he did.  The steamer arrived at Ningpo at 6 or 7 o'clock in the morning.  At about 10 o'clock the first assistant engineer had occasion to go to the locker.  Finding it locked, he called for the key, which was produced by some of the Chinese, who then told him there was money there.  The assistant, who was in haste, got out the required article, not noticing whether there was actually any money in the place, locked it, taking the key himself, and reported the statement to his chief. Afterwards, we may presume almost immediately, application for permission to land the whole lot of stock, the merchandise and the treasure, was made to the engineer, on the part of, or for Le-an-do, and refused.  No further, or other action was taken until the steamer again arrived at Shanghai.  Here the Chinese came forward, and asked to be allowed to take away their stock.  This was granted, but on opening the locker only $500 was found, and the remainder has not yet been found.

It is to be remarked that the petitioner had no right to take the money oln board, that it was done clandestinely, that the store-room and locker was not a proper place for the money, and that the petitioner had no right in it, or to put the money in it, that it was in the department of the engineer, and perfectly competent for him to lock the place, that the locking did not at all interfere with the power of the petitioner to guard the money, which was as complete then as before, that the refusal to deliver the money was intended as an act of discipline, and that against that act the petitioner could at once have complained to the master of the steamer, or to the Consul at Ningpo, but did not do either.

Having in view all these circumstances, I am inclined to believe that it would be unjust to require the engineer to make good the loss which appears to have occurred.

There is, I think, reason the blame the engineer.  It was his duty, I judge, to hand over the merchandise and money to be dealt with by the master.  His failure to do that, however, related to his duty to his employers, and not to the petitioner, or at least, it can not be complained of now by the petitioner.

I therefore enter Judgment, with Costs, for the Defendant.

GEO.  F. SEWARD, U.S. Consul General, Acting Judicially.

We assent to the above: - R. F. MAGRATH, H. DINMORE, Associates.

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