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Colonial Cases

Tilby v. Simpson, 1870

[money lent]

Tilby v. Simpson

Supreme Court of China and Japan
27 May 1870
Source: The North-China Herald, 2 June 1870




Shanghai, May 27th, 1870.

Before Sir E. HORNBY, Kt., Chief Judge.

  1. R. TILBY v. C. SIMPSON.

Claim for $1000 for money lent, &c.

   Mr. Hannen appeared for the plaintiff.

   This was a matter of accounts between the parties.  Before entering on the trial of the cause, Mr. Hannen was allowed to increase the claim to $1,203.92.  Plaintiff is own, defendant master, of the ship Gypsy, and on making up accounts there was a difficulty involving this claim.  After hearing, his Lordship gave judgment for $400, reserving consideration of the remainder.  Captain Simpson said he had received the remaining sum of $800 from a Bank in Yokohama; and hearing that there was a run on the Bank he went to cash the notes, there was a crowd of people, and in the crowd he had his pocket picked of the bundle of notes.

May 31st, 1870.

   The Chief Judge delivered judgment as follows:

   In this case judgment must be entered up for the full amount claimed.  If, on the evidence offered, I had felt myself justified in saying that the Captain had taken all proper care and means to preserve his Owners' property, I should have unquestionably decided, looking at the legal relation existing between the parties, viz: that of master and servant, that the loss was the master's and not the servant's.  But the evidence before me is very bald; the Captain says that he received $800 worth of notes on the Hongkong and Shanghai Bank from q Compradore, on account of freight earned, that hearing a morning or two after there was a run on the Hongkong and Shanghai Bank, and fearing that he might lose the money if the Bank stopped and the notes were uncashed, he went on shore to change them, and that while waiting at the Bank his pocket was picked, and he lost them.

   It is evident that he did not take any immediate steps to apprise his owners of the loss, and he allowed two opportunities of writing to them to escape him.  He does not say that he took any means to trace the thief, or to stop the notes.  He does not produce any evidence, beyond his own sworn statement, that he actually had the notes.  Moreover, the fact, if it is one, of the robbery, which was without violence, and at the same time unsuspected by the master, rebuts the presumption that he was taking the care of the money which in his character of servant of his master, he was bound to take.  He knew he was going into a crowd, and he ought to have taken precautions.  I have assumed throughout this case, that his statement of the robbery is true.  I have no reason to doubt it, but where I am called on to decide whether, in order to avoid the liability which the law attaches, the Capt. did not use all the care, and take all the precautions which he ought to have taken, to have rendered the picking of his pocket impossible, or at least very difficult, I have no evidence before me that he did.

   $800 worth of notes is not a very large bundle - they might have been tightly held in the hand, or grasped in the pocket, and then actual violence must have been resorted to, to get possession of them.  I think the captain has shown carelessness in the preservation of the notes confided to his care; his intention of desiring to cash the notes to save his employer from loss was good, but the means he employer, as the result shows, were not such as to relieve him from liability for their loss. The verdict must therefore be for the plaintiff - with $64 costs.

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