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Colonial Cases

Mahlmann v. Groom and others, 1871


Mahlmann v. Groom and others

Supreme Court of China and Japan?
12 July 1871
Source: The North-China Herald, 14 July 1871


July 12th.

Before C. W. GOODWIN, Esq., Acting Chief Judge, and Jury.




Claim for $18,066, on account stated, for services rendered.

   The first name called for the Jury was not responded to, and the third gentleman called only appeared when

   His LORDSHIP observed that, if the gentlemen were present they had better come forward because they were in danger of being fined if they did not.  It was not at all fair that persons should withdraw into the background; and was an act of injustice to the other Jurors.

   Mr. EAMES challenged Mr. H. J. Limby as being, he believed, in some way interested in the business with the defendants.

   Mr. BIRD challenged Mr. J. A. Taylor.

   The Jury were then empannelled as follows: J. B. Aked; F. Stokes; W. Hyde; J. A. Hawes; and C. Cromie.

   Mr. EAMES asked permission, before proceeding, to strike out the word "general" before authority, and substitute the word "implied," in the 4th paragraph of the petition.

   After a short discussion, Mr. Eames departed from the amendment.

   Mr. EAMES then said, the action brought by the defendant was founded partly on an express agreement, and partly on an implied one.  The petition, which he now read, set forth with considerable clearness what the action was.

   The petition of John J. Mahlmann, the above named plaintiff, shows as follows:-

  1. On or about the 29th day of December, 1868, and for several months previously, F. A. Groomm, H. S. Bidwell, R. Holmes, and J. A. Pomnd, the above named defendants, together with Benjamin Pease, an American citizen, and Thomas Blake Glover (since become bankrupt) were carrying on business among the islands in the South Pacific Ocean as traders and co-partners.
  2.    The said F. A. groom, under the name and style of Glover, Dow and Co., was the general manager, at Shanghai, of the business of said co-partnership, and the said Benjamin Pease was the general manager of said business among said islands.
  3.    In the ordinary course of business, the defendants had, in their service among the islands aforesaid, a schooner called the Malolo, and, on or about the said 29th day of December 1868, the said Benjamin Pease as agent of and acting for and on account of the co-partners aforesaid, employed the plaintiff as master of the  said schooner, at the wages or salary of $100 Mexican per month, and the plaintiff continued to act as master of said schooner at wages as aforesaid, until the 15th day of December 1869, with the exception of a short time during which he was employed at the Island of Ascension, one of the Islands aforesaid, in the business of said defendants, at the same wages that he was to receive as master of said schooner.
  4. On or about the 17th day of March 1870, the plaintiff, under a general authority given to him by said Pease, took charge of the property and business of the Defendants at said Island of Ascension, and continued in the charge and management of said business until the 2nd day of August 1870, in consequence whereof the Defendants became bound to pay to the plaintiff, for his said services, at the rate of $200 Mex. Per month, being the rate at which they had previously paid for similar services.
  5.    The whole amount earned by the plaintiff, as aforesaid, is still due to the plain tiff, with the exception of $250, mex., received by him on account, leaving the defendants still indebted to him in the sum of 1,806.66 mex.
  6.    And the defendants are indebted to the plaintiff in the sum of $1,806.66 Mex., balance of the account annexed and for services rendered by the plaintiff to the defendants at their request.

The plaintiff therefore prays relief as follows:-

  1. That an account may be taken between the plaintiff and the defendants, and they be ordered to pay to the plaintiff forthwith the amount found to be due to him, together with the costs of this suit.
  2.    That the plaintiff may have such further or other relief as the nature of the case may require.


F. A. Groom and others, in account with John J. MAHLMANN


To wages as Master of the schooner Malolo and for services at the Island of Ascension, from Dec. 29th 1868 to Dec. 15th 1869 - 11 months and 17 days, at dollars 100 per month ...


To wages as manager of business at Ascension from March 17th 1870 to Aug. 2nd 1870 - 4 ½ months at dollars 200 per month ...





By cash on account..................... 250

By Balance due .................$1,806.66.

   Two of the defendants had filed answers; one, Mr. J. A. Pond, who admitted carrying on business in the islands, but denied liability for plaintiff's salary as master of the Malolo, with which vessel this defendant had nothing to do, she having been purchased for a branch of the business he had no share in.  Secondly - as the defendant was himself manager of the business at the Island of Ascension, and had been removed forcible by Mr. Pease, who, by doing so, had subjected the company to unnecessary expense.  Third - the plaintiff had taken the position of manager after the death of Captain Coe without authority.

   Mr. H. S. Bidwell had filed an answer denying the truth of the allegations and his indebtedness.  Perhaps he (Mr. E.) had no right to object to this answer, because he had it in his power to apply for another, but observed that it threw no light upon the issues.  The case would try the patience of the Court and Jury at best; and, if there was any such thing as reducing the field, if his friend on the opposite side was prepared to make any admissions -

   Mr. BIRD - Certainly not.  The answer made was a general demurrer to the specific issues of the petition.

   His LORDSHIP did not see that the case could be narrowed in any way.

   Mr. EAMES resumed - The case was that, in 1868, the plaintiff, Mahlmann, was at the Island of Ascension with Pease, manager of the business of the defendants, who engaged him, on the 29th December, as master of the schooner Malolo in the traffic in the islands.  Plaintiff was engaged at $100 a month, and continued to serve for some time in this capacity.  He made two or three voyages, one for oil - and that would be one of the points of the case, as Mr. Pease said that he was not interested in the voyage for this article.  Plaintiff was then employed with the schooner in one way or another until about Feb., 1869, when he was put in charge of the business at Ascension.  He afterwards went back to the Malolo, and remained there until September.  He, then, again went on shore, and for a time had no active connection with the business, though he had rooms on the Company's premises and messed there.

   He did nothing till March 15th 1870, when Capt. Coe, who was manager there, died, and the plaintiff, having been in various positions of trust with the Company, took charge at the wish of the employees on the island.  When he did so, matters were getting into confusing; the men were getting drunk, and that, even in the room where the dead body was lying; the property was unprotected and going to ruin; and it was quite evident that, unless some one came forward, much of it would be spirited away.  There were other men there, but they all thought Mahlmann should take charge.  Plaintiff did not claim that he had any express authority; but he did take charge, and remained there, and did the best he could, sending up accounts to Shanghai, which had been acted upon by Mr. Groom, manager at the time here.  Eventually, another man was appointed, one Resteieux. Defendants would, doubtless claim here that plaintiff had no authority in the first instance; but it would be made clear that Mr. Pond himself recognised him as manager.

   For these services the plaintiff claimed compensation, and he thought he would be able to satisfy the Court and the Jury that plaintiff was entitled to it.  He would adduce plaintiff's testimony, letters proving his appointments in the Company's service and how general they were, how many duties were imposed upon him, and showing, conclusively, the confidence Mr. Pease placed in him.  There was, indeed, but one exception - that he (Mr. E.) had seen to the general expression of Mr. Pease's satisfaction with plaintiff's action - a letterer in which he found fault with him, but for what he had not been able to understand.  He had heard it was because he sent Capt. Coe's effects up to Shanghai - everything belonging to whom, that he could get hold of, ha had sent up to the American Consulate here.  That was the only subject of quarrel.  Capt. Pease was also displeased because certain repairs which should have been made to the Malolo had been done too late; but this was satisfactorily explained by Capt. Coe's having withdrawn the men engaged on the repairs, to load timber.

   Pease, it appeared to him, had bound his partners by his contracts, which were within the ordinary scope of the business.  That was so very clear a point of law, it was hardly worth while dwelling on it.  It would seem also perfectly clear that Pease had made the admission for plaintiffs. They would produce two papers, one an order and the other a promissory note, where plaintiff was described as agent, by Pease.  On the occasion, Pease also gave to the plaintiff a letter, giving him authority to call on the partners to the extent of $1,000; but requested him to leave the $800 for services at Ascension till afterwards.  Further, as to the powers held by Pease, he was general agent of the company.  According to the articles of partnership, Coe was made manager at Ascension, but the intention was that he should be a sort of office keeper, and to grant Pease everything he needed.

   Mr. BIRD said, the fact was Coe was not manager under the articles of partnership; it was Pond.

   Mr. EAMES begged pardon - it was Pond.  But that Pease did act as general manager, and that his management was assented to was tolerably clear.  He (Mr. E.) had seen nothing to show that his general agency was denied; but he had to show that Pond was instructed to deliver to Pease everything he demanded, and to receive receipts from him therefor.  Pease was the man who managed the out-door business, and the vessels - there could be no doubt of that; and, on Coe's death, -  whether he did right or wrong, her (Mr. E.) did not say, nor whether he had power, but he put some one there.  The learned Counsel now quoted Story on Agency secs. 17 and 18 as to general agency.  His client's strong point was that Pease was down there, and did manage the business for a good while in his own way.  He removed Pond; and the only complaint against him was as to the manner in which the timber was cut, and the employment of a certain individual down there, named Lancaster. He believed, however, defendants would, before the case was through, have abundant reason to be displeased with Pease; but, at the time, they did not object to his managing and he did manage.

   The objection raised by Pond in his answer, and probably the same objection would be taken by the other defendants, was, that the trade in oil, tortoise-shell, and beche de mer, were expressly excluded from the partnership; but, when Pease went down there, he went into everything, made up cargoes composed of all these things, and no objection was made - in fact, he could produce two witnesses who were afterwards sent down specially to look after the oil business.  This was arranged in presence of the other defendant, who paid the men an advance, and also said he might, perhaps, go down himself.  Whatever the original agreement was, the oil business was incorporated with the other, and the plaintiff was employed partly in each business.  Under such circumstances, it would be rather hard to hold the plaintiff, and others who were employed, bound by the strict letter of the articles of partnership.  It would be monstrous to require them to have known the precise terms of the trade in which they were engaged to assist.  Pease was down buying merchandise generally, and they acted as he required.

   He now quoted from Story on Agency, sec. 73, which showed the conditions to be binding where there was a special written authority; but here they would prove that the original instructions were changed, and that business was transacted in the very thing which was first disclaimed.  The section he had read, he quoted for its general spirit, not for its particular application.  He fancied that, in Shanghai, or in any community in the mercantile world, such a thing was hardly known as a man, who is sent to purchase the produce of the country - as say silk or tea, asking to see the written instructions under which he was ordered.  One more remark he might make, as to plaintiff's taking charge.  There was little doubt they could show it was authorised; and the question was whether Pease had power to put any one in.  He had certainly removed Pond, and it would be shown that the latter had made no objection to Mahlmann's appointment, and had afterwards treated him as the agent.

   The next question was as to the taking charge on Coe's death.  Plaintiff had previously been entrusted with a very general authority, and had held in his hands considerable discretionary power, besides which, Pease made him his attorney - the latter circumstance he mentioned only to show the extent to which Pease trusted him.  Mahlmann was not at  the time actively engaged, he was not drawing pay; but he saw there was property there which was in danger - property which he would be able to satisfy the Jury would have been lost, had he not looked after it.  No one else wished to take charge except a Mr. Carlos, who was a very improper man, and of whom they must hear something from Mr. Groom.

   Finally, plaintiff took charge of the business, and, if he was wrong, anyone would have been wrong in doing so.  That it was the duty of the people there to leave the property to go to wreck and ruin, was not very reasonable.  It was the duty of some one to take charge, and Mahlmann was chosen.  When this was intimated to Shanghai, Mr. Groom expressed himself satisfied with his action, approved of it; and he (Mr. E.) thought the Jury would say that he had acted well.  There was no disapproval till after the plaintiff had been there; and the point on which the case turned was the ratification.  It did not appear that any of the defendants protested against the plaintiff's acts until before this action; and he quoted Chitty on Contracts, 233, to show that it was an established rule that, where one acted for another where he could not act for himself, slight evidence of ratification was sufficient to bind the principal.  Here, he thought they would have very much more than slight evidence.

   He quoted in support the case of Maclean v. Dunn; 4 Bingham, 722, a very strong one.  He quoted Chitty 232 to show that the principal was bound to disapprove of the act of his agent, otherwise he makes the act his own.  In these and like cases the principal must act promptly or he ratifies the transaction. Now, it would appear, he thought here, that one of the defendants was aware, and must have been aware that they were engaged in the trade in oil; when two witnesses went down they were engaged expressly to manage the oil business.  As for Pond, he did not know whether he had any knowledge of it or not.  It would be for the Jury to say, under his Lordship's instructions, whether the claim is right or not.  There could be no doubt that the agent, under the authorities he had mentioned, could act with subsequent ratification, and, in case of danger to property, a perfect stranger would have a right to go in, and could claim a proportion as salvage.  If a man found a vessel helpless at sea, he would take her on a general principle, without special authority.

   Mr. BIRD remarked that a derelict ship was supposed to be nobody's property.

   Mr. EAMES contended that the principle was the same; and quoted to show that a person might interfere to prevent injury to perishable property, and might even dispose of it, if it were of such a nature; or, if not, to hand it in to a Court of justice.  Under extraordinary circumstances an agent might assume extraordinary powers, and these would bind his principal; and if law was common sense, the plan seemed to him to be a very common sense thing.  It was unnecessary for him to take up further time - he would now call

   JOHN MAHLMANN - I was employed in the Pacific Islands.  I was employed by Captain Pease as master of the schooner Malolo.  I began on the 29th December, 1868.  I had no written authority till the 12th February, 1869.  I had been employed before, but I have no writing to show, except a letter instructing me what to do.  (Letter of instructions, dated 5th January, handed in; found not to be signed).  I can swear it is in Captain Pease's handwriting.  This was my second trip.  I had been before to take off the people from thje Lizzie Allen.

   Mr. BIRD objected to the admission, as evidence, of a document which was not signed by Pease, nor was any evidence given to connect him with it.  It might have been written by him for another man to sign.

   The JUDGE did not see there was any objection to admit it for what it was worth; its authenticity might be proved by other evidence.

   Mr. BIRD strongly objected.  If an unsigned letter was to be admitted as evidence, there was no object in a signature.  All that witness could swear to was Pease's handwriting.  It might have been written for C. A. Williams to sign.  There was such a man concerned in the trade, down there.

   Mr. EAMES did not contend that, because it was written by Pease, it was Pease's letter.  It was a question of fact whether this was his letter of instructions.  It would be for him to prove the fact.  It was, however, hardly worth the argument, as the only object in producing it, was to show the defendant was trusted by Pease.

   Mr. BIRD [having elicited from witness that he did not get the letter from Pease; but that it was handed to him by Coe] argued that Coe ought to be produced to prove the connexion; but this was impossible because Coe was dead.

   The JUDGE - If it had been signed, what more would it prove?

   Mr. BIRD - It would prove that it came from Pease and was his letter.

   The JUDGE overruled the objection.  Let it be admitted, and the jury could attach to it what weight they saw fit, hereafter.

   JOHN MAHLMANN - I went down on the voyage in January.  I was away 7 or 8 days.  I then returned to Ascension.  A cargo of cocoa-nut oil was taken on board the Water Lily and shipped to Shanghai.  I hand in my letter of appointment d. 12th January (read).

   Mr. BIRD now admitted that the previous letter was admissible, as it was referred to in this letter.

   Witness - I returned about the 16th April.  I took part of a cargo of lumber out of the Lizzie Allen to take to port Ponatic.  I started on the 13th January 1869; I never finished the voyage.  I met with an accident.  I remained on board the Malolo until the 3rd February; when I was told by captain Pease to take charge of the Ponatic Station.  This was the head station of the Company.  I took charge.  I asked what Mr. Pond was going to do.  He said Mr. Pond had misconducted himself, and he could not trust him.  I was to load timber, &c., under the letter of instructions.  I remained in charge until the 25th May, following.  I then left to take command of the Malolo again.  In the meantime, I acted for Capt. Coe as manager of the Station. (Read letter d. 17th January, 1869, appointing witness to command Malolo).  This was given to me to show to the different agents, to prove that I was authorized to do business.  I left the Malolo on the 15th December 1869.  (Letter, dated December 15th, accepting witness resignation of command.) 

   I hand in letters, dated August 14th and September 4th, from Captain Coe, (ordering witness to repair the Coquette, fit her for sea, and go to the Pine Isles and get a load of pigs.)  Pease found fault with me about the repair of the Malolo, until I explained to him that Captain Coe took away the carpenters to square timber; then he was satisfied.  I went on shore on the 15th Dec. and remained until the 17th March.  I was living in a house furnished me by Captain Pease.  On the 17th, captain Coe having died, I was requested by the employees at the station, to take charge.  I was living fourteen miles off.  I was sent for by captain Coe's steward, and went up.  I got there about 2 a.m., and found several people drunk in the same house with Captain Coe.  There was a good deal of noise.  Several wanted to take charge of the business.  One man especially, named Carlos, swore that he would steep his hands in blood before morning, if he did not get charge.  I consented to his having charge, but the others did not wish it; and as I saw there would be a row, and perhaps murder, I agreed to their wish that I should take charge.  This all took place during the night after Captain Coe's death.  I hand in a letter signed by several of the employees (saying witness had taken charge, and they considered him the only man adapted).

   Mr. BIRD remarked that the letter could not be binding in any way on his principals.

   The JUDGE did not suppose Mr. Eames would contend that it was so.

   Mr. EAMES was not so mad.  He merely produced it, to rebut the assertion that plaintiff ought not to have taken charge.  Its effect was to chow that, what authority any one had, Mahlmann had.  What authority the employees had, they lent to him.

   The JUDGE - It shows that he took charge with their consent.

   Witness - there was property on the island.  This is an inventory (handed in; and a letter, handing over charge to the agent, appointed by Glover, Dow and C o.)  The value of the property was between $4,000 and $5,000.  There were buildings in addition to what is mentioned in the inventory.

   Mr. EAMES produced a power of attorney from Pease, which had, perhaps, lapsed by plaintiff leaving the company, but which tended to show the trust previously reposed in him, and to show how far he was justified in taking charge; also order on Glover, Dow, and Co. for salary, and promissory note signed by Pease, (amounting to $1,000) - as evidence of services rendered;


   For services rendered as master of schooner Malolo on account of the Pacific Trading Company, I promise to pay the sum of Four hundred dollars (dols. 400) on demand to John Mahlmann, or order.

(Signed) BENJAMIN PEASE, Manager P. T. Co.


Messrs. GLOVER DOW & Co.

   SIR, - Please pay to J. Mahlmann or bearer the sum oft dols. 600 six hundred dollars mex. For services rendered to the Pacific Trading Company as master of the schooner Malolo and resident Agent at Ascension from 29th day of December 1868 to June 27th 1869, 6 months at dols. 100 per month.  And oblige,

(Signed) BENJAMIN PEASE, Manager P. T. Co.


also letters from Pease, recognizing claims by witness for $1,000 owing to him, and $800 for service as manager after Coe's death, provided the company admitted the claim; letter from Pease to agent, mentioning that he had given plaintiff these orders for $1,000; also a subsequent letter, certifying that he had not paid the orders, and authorizing witness to pay himself with the  company's property at the station; also letter saying he (Pease) was in prison and could not pay the orders, but could not see why his partners should not pay, as there was property on the Island worth $10,000 or $15,000, sufficient to pay all claims on the Company; also a file of memoranda made by plaintiff during his charge, as proof of his activity.

   Witness - I did not act on captain Pease's order, authorizing me to pay myself out of the property on the island.  I remained ten or twelve days at Guam.  From thence I was sent to manila by Pease, and thence worked my passage up here.  I called on Glover, Dow and Co., and demanded the money due to me.  I asked Mr. Groom whether they were satisfied with my doings, he said - yes; perfectly; he believed I was the only honest man they ever had down there.  I joined the Company's service at Ascension.  I was not sent from here.  I have never received anything out of this sum, $1,800.  Had about 25 men to look after while I was in charge of the station.  I partly loaded the Malolo; she was about 90 tins burden.  No other vessels came to be loaded.  I loaded the Malolo to send the Chinese away because they were starving.  I know other vessels left with cargoes of oil and timber at other times.

   To Mr. BIRD - I don't know that the Malolo belonged to C. A. William at the time I was appointed to her.  I do not know that Pratt was a partner in Williams & Co.  I don't know to whom the Malolo belonged.  I did read their letter appointing me, certifying that Pease had given witness command of the Malolo, late belonging to Pratt, of Honolulu, but now, by purchase, the property of the Pacific Trading Co.  The Malolo was chiefly employed in the timber business.  She was about 60 tons register.  The Lizzie Allen was about 400 tons, and the Water Lily about 260 tons register.  I went from Ascension to Wellington to collect cocoa-nut oil.  I collected about 28 barrels.  That was the only occasion the Malolo was used in the oil business.  I do not know that Pease was agent of C. A. Williams in those islands.  I have heard that Williams was carrying on a trade in coca-nut oil in those islands.  Pease was lately in Shanghai.  I had taken an affidavit when he was here.  I did file my petition when he was here.  He left on the 20th May.  The authority which I had to take charge was the Power of Attorney.  I had my doubts as to its value, and did not rely on it.  Pease had never revoked it.

   I acted because I thought circumstances compelled me to take charge.  I did say that several people were desirous to take charge.  They did not want to see the property going to waste.  I did not conceive I had a better right than they to take charge; but I thought circumstances compelled me to do so - to keep peace, and look after things.  The $200 a month had noting to do with it.  It is not a fact that Pease discharged me before I sent in my resignation.  In December '69 I resigned because we had a quarrel about my going too near a reef, in the Malolo. I did not wreck the Malolo then.  I did so before.  I went through a wrong passage.  It was not my fault.  It was Captain Pease fault.

   Between the date of my discharge and March 1870 I was living in a house belonging to the Company lent me by Captain Pease.  I was living partly at the Company's expense, and partly at my own.  Pease offered to keep me altogether, but I would not accept it.  I did not refuse to obey an order by Pease to give up charge.  I received a letter of 12th August, from Captain Pease (saying there were serious charges against witness; and he had appointed a man to look after things, with full power to eject whom he thought necessary).  This (handed in) is a receipt signed by me, for the order for $1,000 given me by Pease.  I did think that the business being carried on belonged to Pease, and Glover, Dow, and Co.  I came to know that Mr. Bidwell was in the concern when I saw the deed of Partnership in Ascension.  I did not see the copy you hand me, in Ascension.  When I landed in Shanghai, I did go to Mr. Bidwell and say I was destitute; he offered to be responsible for my board.  He paid for my board.  He discontinued when I took proceedings.  Mr. Groom gave security for my board, but refused to pay.  I believe the bill was presented after I had begun this action.

   I rendered an account of the property in the island to Glover, Dow and Co.  I never rendered an account to Bidwell.  I came away because Captain Pease sent another man in my place.  I was quite willing to give up.  The "Malolo affair" referred to in Pease's letter to me, is a voyage in which I ran too near a reef.  I did not strike it.  The time I touched was before.  I do not know whether Pease's order on Glover, Dow, and Co., was written the day it was signed.  I got the one for $600 on the 7th July 1870; the other I got on the 15th Dec. 1869.

   I took proceedings against Pease in Guam.  I informed against him that he had murdered six natives.  I afterwards tried to withdraw the charge, but could not.  This is a letter I wrote to the Governor of Guam, [stating that wirness was led to believe Pease had been put into custody, and that witness was very likely to be sent to manila to give evidence. That he had not given information from personal motives, and did not wish to go to Manila; wished to go to Shanghai; therefore, withdrew all he had said against Pease unless he were tried here, in which case he believed he (Pease, would clear himself; also withdrew claim of money, hearing Pease had no money but was willing to give security.]  The U. S. S. Jamestown was then at Guam.  I don't know what she went to Ascension for.  I was given to understand that Pease was arrested on my charge.  I saw him in the interval between my charge and its withdrawal.  He sent to me from prison.  I saw him in prison at Shanghai.  I will swear I did not get the money orders from him in Shanghai.  Mr. Pond saw them in Ascension.

   To Mr. POND - After the Malolo went over the reef, I remember a Mr. Briggs coming to Ascension.  I heard he had a Power of Attorney from C. A. Williams.  He did not take an active part regarding the Malolo.  I don't know of his paying money for her repairs.  I heard he was to pay.  I don't know that it was for Williams.  I don't know that he had anything to do with the Water Lily.  I had heard something about it.  I went to McCaskill's island for oil.  I never heard Captain Pease say the oil was for Williams.  I understood it was for Glover Dow and Co.  He told me he had formerly been managing for Williams and Co.  He did not show me any papers signed by Williams.  I cannot swear; but I don't recollect.  I don't remember your telling me, while you were down there, that you had no interest in any oil business.  I will not swear you did not; but I don't remember.  You have me an opportunity to come up in the Annie Porter, and I declined.  I don't remember your telling me that you thought it improbable that glover, Dow and Co. would send another vessel after receiving your letters,  saying that Pease had been doing - piracy murder &c.   After you left Ascension in the Water Lily, I used the provisions at the station.  I had authority from Captain Pease.  I believe the stores in the Clio were consigned to you as Manager.  Rose took them and opened them.  I was manager.  He opened them against my will.  I did eat some of them.  I have rendered an account of them.  I told the Company all about them.

   To Mr. BIRD - I write this letter, dated 9th May, to Mr. Bidwell (stating the amount of claim at $1,800, and offering to take $1,000 to settle whole.)

   Mr. BIRD pointed out that the account differed from the amount claimed in the petition.

   To Mr. POND - From December to March, I was not employed by the Company.  I got provisions from captain Pease.  He charged me for some, and gave me others.  The $250 was not paid me in cash, it was "trade."  I got some of it from you.  I gave you an order on Glover, Dow and Co. for the amount.  I charge it because you said it had not been paid.  I have deducted your claim in the account.  I have no agreement to show I was to be found in food.  I got trade from captain Pease before he left Ascension, to pay for food.  I believe I sent up a detailed statement, accounting for part of the $250 to Shanghai.  I have no detailed account of the sum, now.  It stands to reason I was to be found food in such a place; else how was I to live - on the bark of trees?

   To Mr. EAMES - The larger vessels were employed to bring cargo up to Shanghai.  The "Malolo" was used to carry stores and men about the islands.  Pease found the crew for her.  Some were taken from the "Pioneer;" some were islanders.  We took provisions from the Water Lily.  I did not insist upon having charge after Coe's death.  I took charge because it was necessary for some one to do so, and the rest approved of my doing so.  The money orders had been sent up by Mr. Pond, long before Pease was on jail in Shanghai.  I produce Pond's receipt for them, dated July 1870, long before Pease came up here; also receipt by Glover, Dow and Co. to Pond, for the orders. 

   I asked of Mr. Bidwell $1,800. - $1,000 for my wages in the "Malolo;" and $800 for services on shore.  The trade which I had, had been subtracted from my original claim, to make the $1,000, which Pease gave me an order for.

   The Court now adjourned; when it resumed,

   Mr. BIRD said he had been asked by Mr. Groom to mention that there had been filed in that Court a resolution under which the liquidator of his late firm was appointed.  It was under the liquidation clauses of the Bankruptcy Act -

   His Lordship quite understood that Mr. Groom's position protected him from the result of this action.

   Mr. EAMES said Mr. Groom was only formally put on the petition.

   His Lordship thought the petition would have been more perfectly in form, of the names of Glover and Pease had been added.

   Mr. EAMES believed that, in a case of mixed nationalities, all the names should be put in, and process served on British subjects only.  But Sir Edmund Hornby held a different opinion - he (Mr. E.) did not know that he had ever ruled so, but the practice was to mention only British subjects, amenable to the jurisdiction.

   His Lordship said proceedings might be taken against one partner of a firm, but if against more than one, it must include the whole.

   Mr. BIRD said it was provided for by a rule sent from Peking, that one partner might be sued in the name of the firm, in order to meet the case of firms here whose partners were often absent.

   Mr. EAMES thought it would be sufficient in this case, if the Court would make a note that Mr. Groom's estate was being wound up in liquidation, to save him any further trouble.

   The case of another of the defendants, Mr. Holme, was noticed - he being a British subject beyond the ordinary but within the extraordinary jurisdiction.  Mr. Eames said the petition had not been served upon Mr. Holme, and therefore judgment could not go against him.

   Mr. EAMES then said that before proceeding further, if he could have the deed of partnership, he would put it in.  Having received it, he proposed to read it, but, owing to its length, glanced through it instead, picking out the points affecting his case.  The deed bore that the partnership commenced in May 1868; that the company were restricted from trading in ice-nut, or cocoa-nut oil, beche-de-mer, and tortoiseshells; that Benjamin Pease, one of the partners should proceed to the islands, there to labour for, procure, and export the goods specified, the partnership finding him sufficient funds to establish and carry on the business;  that John Alexander Pond, another of the partners, should act as accountant and manager at the shipping stations.  The important point was that Pease was sent down there with full powers to establish and carry on the business.  It would be for the Court to judge, on the face of the document, whether it constituted Mr. Pease manager, unless certain facts occurring at the islands should qualify it, which, it would be for the Jury to say.

   GEORGE A. LINDSAY, sworn, stated - I was in Glover & Co.'s office at the time the 5 S. S. V. partnership was formed, and know about it, except during the time I was at home, which was in Feb. 1869, a year after it was formed.  The first cargo that arrived was by the Anna, but this arrived before the partnership was formed, in 1868.  The cargo consisted of a little tortoiseshell, cocoa nut oil and some pigs, and some beche-de-mer and Capt. Pease.  So far as I know, that was called the Anna venture, and did not go into the partnership.  The cargoes of the Lizzie Allen and Golconda came up - all timber.   Since my return, the Pioneer came up, bringing cotton, and cocoa-nut oil, but only on account of Capt. Hayes.  To my knowledge, from the books, oil has been brought up, but not while I was in Shanghai.  I was not book-keeper.  Mr. Bidwell has not retired from the partnership, so far as I know.  I was summoned to bring here all the documents I had relating to the company.  There is no account in Glover, Dow & Co.'s books of the Pacific Trading Co.; it is the South Sea Islands Co.  Glover & Co.'s account was not made up till 1870.  There has been no apportionment of the proceeds.

   Mr. EAMES asked the witness for any letters showing Mr. Bidwell's connection with the partnership, because he understood that it would be attempted to set up that a change was made since Mr. Bidwell signed the original deed.

   Witness - I cannot say I have perused all the letters, but in those I have, I have not seen anything bearing on this matter.  Some oil sent home by Ilbert & Bidwell was for Glover & Co., but how consigned I don't know.  The oil was referred to in a letter from Mr. Bidwell to Mr. Groom.

   Mr. GROOM said that was an extract from a London letter to Mr. Bidwell, and by him sent on to the former.

   Witness - The letter was written, I believe, because Glover & Co. had no credits to send home cocoa-nut oil, and Mr. Bidwell had.  Mr. Bidwell has always repudiated any interest in the oil.  I claimed on him for certain things lately, and he said he had no interest in it.

   Mr. EAMES took time to look through the bundle of letters, but

   Mr. BIRD thought his friend should have asked through the Court to have those documents submitted to him before, and not now take up the public time.

   Examination resumed - These are all the letters in my possession.  There was a proposition made to change the form of partnership, by Messrs. Ilbert & Bidwell, but as they are in Shanghai, it might be made without exchange of letters.  I know of men having been sent down for the oil business, but my information is from other people.  The only people I certainly know of, were carpenters sent down to cut timber.  Since December, Mr. Bidwell repudiated connection with the oil business.  The accounts have never been divided.

    The Court adjourned till 9 a.m. on the following day.

   F. A. GROOM, sworn, stated - The partnership under the deed produced, was restricted from dealing in certain articles.  I had the management in Shanghai.  The oil business was kept as distinct as could be, and had Captain Pease acted under my instructions, it would have been so completely, but they were complicated through his action at the islands.  The accounts have never been closed; and there is nothing to divide.  Cocoa-nut oil was on one occasion brought up in the same vessel as the timber; and directly it arrived, Mr. Williams' agent put an embargo on it in the American Consulate as his property.  Before any of the oil was landed, I got notice that there was an embargo, and that it should, if landed, be held to his order, and I did so hold it; but subsequently it was bought on account of the partnership. 

   The first venture under the partnership was called the South Sea Island Venture, and subsequently an arrangement was made with Captain Pease to change its nature, and to call it the Pacific Trading Company; but the arrangement fell through.  It was sometimes so mentioned at the time in correspondence, but not changed in our books.  Some oil came up in the Pioneer, and was put to the account of the S. S. I. V.  Men were engaged here to go down to the Islands to collect oil.  That as in April 1869. [Identifies agreement of 30th March '69 with these men.]  That was written out by Mr. Bradford, of the American Consulate, and brought by Mr. Pease to me, and as I wanted the men to go down, I was not particular as to the form, and we thought the P. T. Co. would be formed.  We signed it as agents for the Company.  That was executed at the American Consulate.  I was not present when it was drawn.  I have no certain knowledge that Mr. Bidwell had anything to do with it, but I know he knew of it.  The correspondence has all been handled by Mr. Lindsay.  Mr. Bidwell did not find fault with the passing of oil to the account.

   To Mr. BIRD - I am aware that trade in beche de mer, tortoiseshell and cocoa-nut oil was expressly excepted.  My firm was changed from Glover and Co. to Glover Dow and Co. in the end of 1869, and I, some time later, in March or April, suggested to Mr. Pease the formation of a new partnership.  It was supposed to commence from the time of Glover Dow and Co. taking over the interest of Mr. Williams in it.  Messrs. Ilbert and Bidwell joined in a promissory note for the purpose.  I am prepared to swear they signed w promissory note for Tls. 10,000.  The object will be shown by correspondence which can be produced.  The new company was not to have quite the same business, they were to trade in cocoa-nut oil, which was formerly the monopoly of Mr. Williams of Honolulu.  The money was paid by Glover, Dow and Co. for Glover and Co. and Benjamin Pease.  Messrs. Ilbert and Bidwell made proposal to me to take a share in the new concern, and subsequently to take over the whole business, which proposals were accepted by us, but never carried through by them.  I treated throughout with Mr. Bidwell.  I can't say with which the proposals were made, but they both knew; and, supposing the shares had been allotted, Ilbert and Bidwell would have been responsible.

   Before Glover and Co. paid the money to Mr. Williams, I had the power to act for Mr. Holme and Mr. Glover, and gave consent for them; but I was not authorised to enter, so far as Mr. Pond was concerned, into the new oil business.  When Capt. Pease came here, he was accompanied by Mt. Briggs, special agent of Mr. Williams, who had power to sell the interests before restricted.  It was then proposed to form the new company, Mr. Bidwell being one who proposed though he was not the first.  He agreed with me as to the terms.  Subsequently to the writing of the prospectus, we did not purchase ships or land - they were bought before; but the "Lizzie Allen" was chartered on behalf of the new concern.  C apt. Pease bought land on behalf of the old partnership, and I got the title deeds, but I am not aware that any money wass paid.  Mr. Dow and myself dealt with that land as our own property.  When I say I don't know if the money was paid, I mean that the documents handed to me showed that Capt. Pease had purchased the land for certain money, and it being far away I had no means of proving that they were proper title deeds, or whether Captain Pease paid the money.

   One ship was purchased.  The "Malolo" belonged to us, bought from Mr. C. A. Williams in March 1869.  We took over hjis stations, his interest, and the "Malolo." Mr. Dow and myself have mortgaged that land as security for advances made to us.  At the same time, I admit it was purchased on behalf of this new Company.  We purchased the "Malolo" with a view of handing her over to the new firm, and with the consent of the majority of the partners.  We also mortgaged her; she was registered in my name.  I am shown the deed under which the land and ships were mortgaged.  I am shown a letter which I wrote to Mr. Pond on 25th Jan. 1869.  When I purchased the "Malolo," it was for the general purposes of the business.  She was not specially adapted for the timber trade.  The things on the island at Capt. Coe's death belonged, the greater portion of them, to the old business.  When the plaintiff left he sent up a long inventory of things of no great value.  The old concern is not described by any name in the deed of partnership.  The change from South Sea Islands Venture to Pacific Trading Co. wass made with a view to the new partnership.  There is only one account in our books, that under the S. S. I. V. account.  The books were written up by Mr. McLoughlin, and the balance shown at our first meeting, but he was engaged subsequently writing up our books.  They were not much in arrear.  Shown a letter I received from Capt. Pease.  I have had correspondence with C. A. Williams and he has replied to my letters.  (Identified various letters.)  I never refused to give Mr. Bidwell shares privately and personally, but I offered shares to him for the firm.  I would have given them him personally, but he never to my knowledge applied.

   To Mr. POND - I am not quite certain if I wrote or asked you to take a share in this new concern.  I cannot say if Glover & Co. wrote to you; but I think we wrote, and asked you the value of your share in the old concern, whether in my name or that of the firm I do not know.  Some correspondence did take place, either in my name or Glover & Co.'s, as to offering you an interest in the new company.  I never asked you verbally; nor did I tell you we were going to form such a company.  Our intention, if anything, was to buy you out of the old one, but when you spoke of $4,000, it was of course put out of the question.  Up to the time of your arrival in Shanghai, with Mr. Pease, the "Malolo" belonged to Mr. Williams.  Pease was not only agent for Williams but his partner.  The "Water Lily" was purchased by Pease for Williams, and he drew bills on the latter which were dishonoured.

   Mr. POND explained that the "Water Lily" and "Pioneer" were one and the same vessel.

   To Mr. EAMES - The attempt to form a new company fell through, and the business done was all for the old company.  The "Lizzie Allen" and "Golconda" were chartered for the company, but I don't know whether the "Malolo" was engaged in the timber trade.  We took over Williams' property as set forth by inventory, but not the liabilities of the vessel, and we got the "Malolo" in March 1869, she was used only after that when Pease took back the news that we had purchased her.  What she was used for we had no account of.  She was not chartered to the old Venture, she was carrying oil for two months before, but we did not deal in that.  I don't know whether she was sent to carry men.  She might have been sent 6 miles or so.  The property left at Ascension was of no great value. I knew there were men down there, but not engaged with our authority, except some Chinese, who were not there all the time.  They were there at the time of Coe's death.

   Pease, in referring to the property as $10,000 or $15,000, must have referred to the property of every sort at all the islands.  An agent was sent down by the Trustee of the estate of Glover, Dow and Co. in winding up the old partnership.  The trustee will of course hold it in trust.  When Mahlmann came up I heard hjis side of the story, and I approved of his actions on his own report of them.

   To mr. BIRD - As the new company was not formed the business naturally reverted to account of the old concern, and that business prevented dealing in ships and land or cocoa-nut oil, but this was broken through by consent of a majority of the partners, though without consulting mr. Pond.

   W. J. ETTER, sworn, stated - I am a seafaring man.  In March 1869 I was engaged to go down to St. David's Island.  I spoke first to Capt. Pease, and afterwards to Mr. Bidwell.  We were engaged on account of a co-partnery, many of the partners being named, and Mr. Bidwell said he was glad we were to go.  [Note handed in, being confirmation of offer by Capt. Pease, signed by him and written in Mr. Bidwell's office; also another note, relating to the same matter.]  We made an agreement, shown me, written by Mr. Bradford.  I was not present at the time, but was when the headings were taken down, and Mr. Bidwell and Capt. Pease were present.  We had it made with Glover, Dow & Co. on the other part, because we understood them to be agents for the co-partnery.

   Some discussion took place as to the agreement being signed by James Dow and Francis A. Groom, binding the partners of the S. S. Venture.

   Examination continued - Mr. Groom told me to take anything from hjis godowns we wanted, and he would send us anything we wanted at the islands.  We got an advance of $50 from Mr. Bidwell.  Mr. Bidwell was present, and assisted in dictating the outline of the agreement.  We went down in May 1869.  We never got to St. David's because Capt. Pease left us at Ascension, where we remained 15 months.  I was there when Capt. Coe died, or rather the following morning.  There was no authorised agent there, and after the body was laid out boats were sent round to collect the Europeans, the last coming in at three o'clock in the morning.  It was voted that Capt. Mahlmann should take charge, and he did the second day after.  We left Ascension in September.

   To His Lordship - There was very little going on except squaring timber in expectation of a ship arriving.  Capt. Coe was keeping the property together.  It was necessary that some one should take charge, because, if not, each would have taken what he could, as the firm was in debt to most of them.  Every one spoke well of what Capt. Mahlmann had done.  When I arrived here, Mr. Groom asked what I thought of Mr. Mahlmann, and I said I thought he was a trustworthy man; to which Mr. Groom replied that, from what he had heard, he thought so too.

   WILLIS LOWITT ADAMS: - This is an agreement which I signed in 1869, binding me to go to St. David's to collect oil.  I communicated with Mr. Pease and Mr. Bidwell, principally.  They were present at the U. S. Consulate when the agreement was made.  Pease informed me he was forming a company in which Mr. Bidwell, Mr. Pond and others were partners.  I made the agreement with Glover & Co. because I knew them to be interested, and to be responsible parties.  I got an advance of $50; Mr. Bidwell paid it.  I had conversation with him.  He said, after we went down, we would separate to different islands, if all went on well.  He said that he might probably go down himself.  He gave us some seeds to take down.  When Mahlmann took charge after Coe's death, I did think it necessary for some one to take charge, to preserve the property, and to look after the people on the island.  This Mahlmann did.

   To Mr. BIRD. - The conversation with Mr. Bidwell was about the 25th March.  We met at the U. S. Consul's about 1 or 1.30 p.m.  I cannot swear whether it was the 25th or 26th.  There were about a dozen or fifteen people on the island.  Several of these were employees of the Company.  I did not think it my duty to take charge.  My agreement was not drawn up for Ascension.  Mr. Mahlmann had been in charge before.  I don't know that he was in the employ of the Company at the time.  I did not consider it part of my duty to take charge.  It was for the benefit of the Company that I should come to Shanghai.

   To Mr. POND - I heard your name mentioned by Captain Pease as a Partner as holding seven shares, I would not swear whether he mentioned you as a partner in the old or new Company.  He spoke of you as connected with the Company that I was going to work for.  I think that was about the 25th March.  Mr. Etter was present at the time.

   F. M. COFFIN - I was at Guam in February 1871.  I saw Capt. Mahlmann there. Pease sent for me to come up to him in prison.  He said I am now writing an authority for Mahlmann to recover the money due to him for services in Ascension.  I came up in the Colorado.  Mahlmann came with me.  We arrived here about the 1st April.

   M r. EAMES explained that he had called this witness to show plaintiff had had no opportunity of realising the property.  He came straight up.

   To Mr. BIRD - I saw Pease, in prison, writing, and he said I am giving Mahlmann a security for wages due to him.

   This closed the case for the plaintiffs.

July 13th.

   When the Court resumed, Mr. Bird drew attention to the position of the Jury, under the rays of the morning sun.  They were drawing back from it till he feared they would be lost sight of altogether.  Could they not come over to the other side, (on which he was)?

   His Lordship thought so.

   Mr. Eames, (laughing), - Well, that is really a trick.  Of course I cannot object, where the comfort of the jury is concerned.

   The Jury then changed their seats to the shady side.

   Mr. EAMES said he had omitted yesterday to ask what Capt. Coe's wages were as manager, but his friend had admitted that they were $200.

   Mr. BIRD then opened his case.  The case for plaintiff was concluded yesterday, and the evidence was very diffuse, and trying to the patience of the jury.  He would try and not trespass in the same way, but would make the evidence for the defence as short as possible.  The petition was founded on a claim for work and services rendered to the defendants; the material alleged being contained in the 2nd, 3rd and 4th clauses.  The allegations were first, that Benjamin Pease was general manager, second, that the Company had in their service at a certain time, a schooner called the Malolo, for which the said Pease employed the plain tiff as master at the wages, &c.; and third, that on or about the 17th March 1870 plaintiff, under a general authority given to him by Pease, took charge of the property on the Island of Ascension.  These were the points on which the plaintiff's claim rested.  Unless plaintiff would succeed in proving to the minds of the Jury that Pease was manager, and that he employed plaintiff in the ordinary course of business on board the Malolo in the service of the defendants, the claim must fall to the ground.  The onus of proving this lay on the plaintiff.

   The second part of the claim turned upon Pease's authority as manager.  Plaintiff tried to show that by a man duly authorised by the defendants he received his employment, and that he acted under a general authority given to him by the said Pease - an authority which he traced directly to Pease.  The Jury should look only to the petition in regard to this, where plaintiff stated that he had his authority from Pease, whether general or special did not matter.  It would lead to a much clearer apprehension of what the statement implied if he (M.B.) were to read shortly a passage from Lindley on Partnership, which showed the liability of one partner for the act of another.  Of course the Court would understand that the contention of the defence was that Benjamin Pease was not the manager down at the islands - that John A. Pond was; Pease did act as manager but did so without authority; he had no more authority than any other partner.  To show what test the law put on the unauthorized act of a partner as binding the firm, he quoted the authority he had mentioned vol. 1, p. 192, the effect of which was that if an act was done by one partner on behalf of the firm and was necessary for the carrying on of the business in the ordinary way, the firm was liable even if the act was previously unauthorized.  The converse of this was that if the act was not necessary the firm was not liable.  It could not be held that they were liable if the act was not simply convenient, nor would necessity itself be sufficient, unless it were an extraordinary necessity.  What was absolutely necessary for carrying on the business was the test, and it was that test that he would have applied here.  It lay upon the plaintiff, inasmuch as he sought to establish a claim, to show that Pease must have been acting in a way that was necessary for the carrying on of the business of the firm in the usual way.

   It was contended that Pease was a general agent, and in the sense that a partner is a general agent of a firm he was so, but he was not acting qua general agent but qua partner of the firm, and the law of agency did not apply, but that of partnership.  The question of fact which the plaintiff must prove were first, whether Pease was general manager of the business; second, if the Malolo, at the time the plaintiff was employed on board, belonged to the defendants.  Because if it did the presumption arose that the plaintiff was put in as their servant, but if not then he could not have been there as such.  Third, was the Malolo employed in the service of the defendants in the ordinary course of their partnership business.  His (Mr. B.'s) contention was that the original partnership was never dissolved, and if the Malolo was employed in a way consistent with that partnership, that was in favour of plaintiff, but if she was not then it was against him. The plaintiff alleged in the fourth paragraph of the petition that he received his authority from Pease.  But had the plaintiff ever proved that Pease ever gave him any authority to assume charge of the business in March 1870.  Plaintiff alleged he received authority, but he must also prove it.  The fourth question of fact was whether Mahlmann wass appointed agent on Captain Coe's death.  And 5th, if he was not, had the appointment of Mahlmann, or his assumption of the post, been subsequently ratified by the defendant Bidwell 

   These were the material questions, upon which the decision of the Jury must be more or less founded.  Where the evidence had been so diffuse, the Jury could not arrive at a conclusion, unless they kept the main points of fact before their minds.  There was some question on the previous day as to whether partners could bind a firm by signing a deed to which all were not privy.  The learned Counsel would conceive nothing clearer in law than that they could not, unless the partner who did so had permission by deed, or signed the deed in the presence of the other partners as for the firm.  That was material, inasmuch as plaintiff had produced a power of attorney from Pease upon which he seemed to rely to a certain extent.  Plaintiff alleged that he received a general authority from Pease, and it was for the Jury to consider whether it was found in the P. of A., which was under seal.

   He here quoted Harrison v. Jackson 7 -------- 217, where the question was whether one Sykes, having signed a deed for self and partners bound the latter, neither of whom were present at the execution of the deed.  The judge ruled that the deed could not bind the others, though signature to bills in ordinary commercial transactions might.  He supported this by quotiny further Lindley on Partnership, a late edition, vol. 1 p. 233, as sound law at the present date.  The only instance where a partner can bind his partners by a deed executed under seal, was where he signed it in the presence and with the consent of the others.

   And there was no evidence that any of the people who were partners under the deed of partnership of 22nd of May 1868, were present when Benjamin Pease signed his power of attorney in favour of the plaintiff.  Nor would Pease be entitled to do it as manager or agent, and if his act could not bind qua partner it certainly could not qua agent. They had heard plaintiff's story and his statement that he was totally ignorant of all the facts, that he knew nothing about the Malolo belonging to Williams nor of Pease being agent for Williams.  But there was no evidence adduced to show that the S. S. I. Co. was the Company under this partnership.  Plaintiff stated on oath that he knew nothing of these facts, but took the employment because he believed that Pease was general manager.  Now the defendants could show that plaintiff must have known, that he did know, the facts.  The vessels sent up to Shanghai were of much larger tonnage than the "Malolo," which was of some 60 tins while the others were 300 and 400.  If plaintiff could not show that the "Malolo" was employed in the timber business he could not prove his claim.  And plaintiff must have known that Pease was not general manager and that he was agent for C.A. Williams, and that the latter firm was carrying on the trade in oil, a trade in which the timber company was not engaged.  Pease was the partner of the timber company on the spot and he seemed to have assumed greater powers than he possessed, which was not surprising - Mr. Pease was a pushing man, but the powers he assumed were not conferred, and not binding on his partners. The business of C.A. Williams was a monopoly in cocoa-nut oil, these men were down there and must have known it well, and although Pease might have as agent for Williams, used the "Malolo" in an irregular way to go six miles or so to fetch men in the company's service, that did not show that she was employed by the company.

   As to the second part of the plaintiff's claim, there would be ample evidence showing that there were other men down there who could attend to the business on Ascension Island, and if he took charge he did so on his own responsibility.  There was no prior authority; the people up in Shanghai did not know of it for some considerable time and never ratified Mahlmann's acts.  Mahlmann said the men chose him, but these were the very men who got drunk while Coe was lying dead - there was nothing immoral in that perhaps, some nations indeed made as funeral a time of festivity, the Irish he believed did so - but were these likely men to credit when they came here to try to screw out of Bidwell, who, since the plaintiff came back to Shanghai had been helpful and kind to him -were they not likely men, having claims of their own against Bidwell, the only man connected with the partnership whom they believed really solvent, to combine and make him responsible for the debts of Pease and C. A. Williams?

   The defence was that the plaintiff had made a mistake, that he should go against C.A. Williams; and as to his assumption of charge on the island, what evidence did he bring - a letter, written by himself and signed by the men saying he could do so, which he follows up by making out the property to be of a very valuable description - the Jury had heard a statement of it and could judge whether it was likely to be worth the plaintiff's estimate of $4,000 or $5,000.  The plaintiff asserted that force of circumstances made him take charge.  It was a very strange circumstance indeed that every one on the island wished to do the same thing; and that one man, who had threatened to imbrue his hands in blood, and with whom the plaintiff had a quarrel, that this man should be the first to sign the paper?  Did not this look very suspicious and suggest that force was used.  Plaintiff said they chose him because they acknowledged him to be the best man.  How did the Court know that coercion was not the reason; how did they know a revolver was not used?  Things were done in a very informal way down there, and it was difficult to say that the document was not signed under compulsion, perhaps threat of imprisonment

   All these conjectures, however, might be very unjust, and moreover the document did not affect the defence.  Who were the men who wished by it to bind the partnership?  Why simply employees.  The Jury could judge of their credibility.  Plaintiff laid his claim at $200 a month, which was paid to Capt. Coe, a competent man, but the Company might pay one man $200 when they would not accept the services of another gratis.  Unless he could show that his appointment was duly authorised before, or that his assumption was subsequently ratified by the defendant, the utmost he could claim was what the law termed a quantum meruit.  It would be for the Jury to estimate the amount if he was entitled at all, but it could only be for what his services were worth in saving the property.  The learned counsel now proceeded to call evidence.

   H.  S. BIDWELL, sworn, stated - I admit I am a partner under the deed of 2nd December 1868, of which I am shown a duplicate original.  I did not understand it to be any part of the business of the firm to deal in cocoa-nut oil, beche de mer, tortoise-shell, or to buy land or ships - these were expressly excepted.

   Mr. Bird read portions of the deed to show the express prohibition as to the produce named, and as to the prohibition regarding vessels, or permanent establishments to be erected on the Islands.  At the termination of every venture, the deed required the accounts to be closed, and John A. Pond was appointed accountant and manager.  As to the extent to which the partners were interested, Glover and Co. held 50 shares, Pease 35, and Pond and Bidwell 7 ½ each.

   Witness continued - I knew of, but did not authorize the purchase by Glover, Dow and Co. of the Malolo.  Benjamin Pease gave me a power of attorney.  I am shown it, and it was given specially to sign the new deed of partnership, and generally to look after his interests in Shanghai.  By the new deed I mean one to have been formed under a prospectus which I am shown.

   Mr. BIRD said the prospectus was material as showing as part of their contention the prohibitions under the deed of partnership to be so express that Glover Dow and Co., in conjunction with Benjamin Pease, had intended this new company to purchase up the old interest and to enlarge the trade altogether, for which purpose the prospectus was drawn up.  Though not followed by a new deed of partnership, Glover Dow and Co. had acted in pursuance of its intentions.  The orders given by Pease to Mahlmann were on Glover Dow and Co., for the Pacific Islands Trading Co. the name used in the prospectus, whereas no name at all was made use of in the old deed.  He contended that under it Glover Dow and Co. had purchased ships and land, which they treated as their own, and dealt in the business expressly forbidden to the old and still existing partnership.

   Witness continued - I was never personally offered any interest in the new company and never applied personally for any.

   Mr. BIRD produced a letter which would go to refute Mr. Groom's statement that Messrs. Ilbert and Bidwell asked for shares, and that Messsrs. G. D. and Co. then offered them.

   Witness continued - The proposal to take shares was made to Messrs. I. and B.  They did not accept it.  I am aware that the intentions of the prospectus were carried out by the purchase of the interest of C. A. Williams by Glover Dow and Co., for what sum I do not know, and goods were bought by them in Shanghai for the cocoa nut oil barter trade.  I do not know if they purchased any ships, but I know that they purchased Williams' land at the islands.  We were employed by Glover Dow and Co, as brokers in accordance with the stipulations in that prospectus and charged commission in the ordinary way. 

   I never authorised the purchase, by Glover Dow and Co. of the interest of C. A. Williams.  I did not pay part of the purchase money.  Mr. Groom said yesterday we supplied part of the money for the purchase of Williams' interest.  It was purchased about March 1869.  A press copy of a letter is shown me written on 17th Nov. '69 regarding a promissory note for Tls. 10,000 with which we offered to assist Glover, Dow and Co. against the security of the "Pioneer" and "Lizzie Allen."  The latter says we did so because previously they assisted us with a note for Tls. 9,000.  How the loan was applied I do not know.  By signing a joint promissory note we gave them the Tls. 10,000 and I imagine it w as that referred to by Mr. Groom.  There was none other. The unfortunate part about these promissory notes is we have had to pay both.  In no other way did we advance money, that is the only transaction we had.

   I have already said I was attorney for Pease.  I remember the existence of an agreement with two men who were engaged for the oil trade, shown me, but I was not present when it was signed.  I was not present when its terms were discussed not when it was settled, though I have a general knowledge of its purport.  I explained there were two promissory notes, but there was one forgot, against timber.  I don't remember the date of it, and it has since been paid and cancelled.  I paid the men $50 on behalf of Capt. Pease, at his request.  We were then acting as brokers of the Company, and had the authority of Pease and G. D. and Co. to pay them, under which authority I acted.

   To Mr. POND - I never offered you any interest in the new Company, had no authority, though I knew it was in the course of formation.  I know the old timber business was to be wound up in Jan. '69, during your absence.

   To Mr. EAMES - We were appointed as brokers about March '69 but had no written appointment, I acted at the personal request of Mr. Groom.  It was before the agreement with the men engaged for the oil trade.  My recollection is clear and distinct that we acted as brokers in the month of March.  We bought goods that were sent down.  Our commission was put down in the prospectus at 1 ½ per cent.

   Mr. EAMES said it was no use referring to the deed, which was not completed and contemplated the signatures of several other people.

   Witness - I think not.  Personally I never applied for shares, in fact Mr. Groom refused me personally shares.  He offered them to Ilbert and Bidwell but not to me.  To the best of my belief, I wass not present when the terms of the agreement with the two men were arranged at the American Consulate.  I had nothing whatever to do with it.  I had a general idea of what it was to be from Captain Pease, and knew it also from Mr. Groom.  I did not know not had I any power to consent to the substance of that agreement.  To the best of my belief Etter and Lowitt gave false evidence as to my being present.  Capt. Pease spoke to me in reference to the terms, and I gave him my opinioon.  Capt. Pease having no trap, and it being hot, I drove him down to the Consulate.  I never paid Williams a cash.  I think Mr. Groom must be mistaken as to that.  I signed three notes first and last.  The first was against me and was paid, Tls. 9,000; and the next against the ships, which we have partly paid and for which we are responsible; the third was finished ages ago.  The Tls. 9,000 we paid in full.  The arms were out own.  The Tls. 10,000 was for Glover Dow & Co. and we have paid about half, the balance we are responsible for.  The Tls. 10,000 mentioned before in the letter of 17th November was the one against timber.  I took no steps to disapprove of prohibited articles of trade in the account sent to me when Glover Dow & Co. asked us to take over the whole concern.

   Mr. BIRD observed that shells were there mentioned but it did not necessarily mean tortoiseshell.

   Witness continued - I never objected to the way the business went on.  I did not distinctly objet to the oil being placed to the credit of the Venture.  The oil was not partly my property, and I believe Mr. Ilbert made some objection to the oil being put in, and spent hours separating the accounts of the old from the new Venture, with M r. Groom.  I think it must have been taken out bye and bye.  I did not object to the cargo brought up in the vessels; which were chartered to carry timber, and I am prepared to swear that freight was charged the Venture for that and the oil charged to other people.  I know it was done with Williams, the the oil ex Lizzie Allen.  Some accounts of the Venture were rendered to me when the old company was wound up on 31st December 1868, since which I have had nothing more to do with it.  The account was returned to Mr. Groom for correction.  In a latter where in April 1869 we refer to Mr. Groom blaming us for Pond's failure we refer to the old business.  The promissory note for Tls. 9,000 was on Ilbert and Bidwell's account, the arms were hypothecated as security for it, and Ilbert and Bidwell paid the note.

Mr. A. ILBERT, sworn, stated - There was a parcel of oil came up in the Water Lily which I heard belonged to Williams.  It was offered to me at a certain rate, and was afterwards taken on joint account with Glover, Dow and Co., and sent home.  Mr. Bidwell and myself saw about it, and sent it home because we had a letter of credit enabling us to draw against such goods, and we understood that Messrs. G. D. and Co. had not.  I remember early in 1869 going over the accounts of the old Venture with Mr. Groom, the object being to wind up the old business, in which Mr. Bidwell had a share.  We wished to see how it stood and what had been paid on the new Venture by G. D. & Co. before going into it.  We never took a share in the new Venture.  The accounts, with pencil marks on them, were left with Mr. Groom.

   These were not produced.

   To Mr. EAMES - Letter shown me is in my handwriting of date 5th May, 1869.  It does not speak as if we had an interest then.  It is a proposal they should make us an offer to take over "the entire business as carried on for s elf and ourselves."  To close up the old business, I went round and looked through the accounts, to separate the timber business, and to see whether we should go into the new company.  The new venture was offered to us in most glowing terms.  Mr. Groom made us a proposition different from the prospectus, which we refused.

   Mr. BIRD thought it rather remarkable that Mr. Groom, who had appeared in Court as defendant, should be prompting the plaintiff's counsel.

   Mr. EAMES said Mr. Groom did not seem to have anticipated the direction the case was taking, and felt that his personal credit was at stake.

   JOHN A. POND, one of the defendants, sworn, stated - I acknowledge having been partner in the wood business, but except from hear-say do not know of any oil business having been formed, and no share of it was offered to me.  At the time Capt. Mahlmann was in charge of the Malolo, she was the property of C. A. Williams, that I know for a fact.

   To Mr. EAMES - I know that, because I had a letter from Mr. Williams asking me to hold on to her.  I was managing at Ascension at that time.  That was in the fall of 1868.  I received the letter I think in December '68, dated 20 days previously.  I don't know how soon after that she changed hands.  Up to the time I left the islands, the 13th or 14th February '69, she was his property, because I had this letter, which was proof to me.  I know the vessel belonged to him after, because I saw her named in Briggs' Power of Attorney, about the same time.  There was for a great portion of time no one on board, and when she was in use I never supplied her with provisions from the company's stores.  She got them from the Water Lily.  She got ashore before I left the islands, and they commenced to repair her.  The men working at her might also have been partly employed at timber.  No Chinese carpenters repaired her while I was there.

   Timber came up in the Malolo while I was there.  I have been down three or four times, having left in February 1869 and returned in August of the same year.  All that I had to do with shipping was in timber.  The Water Lily, which was not brought up for the wood company, brought up some wood and some oil.  She brought the oil from the Micronesian Group, and it had to be moved before timber being put in, which was done I presume by her own crew.  When I was down last I suggested to Mahlmann he might go to Shanghai, and I would take charge; but he said he would wait, and perhaps a ship would arrive.

   To Mr. BIRD - I showed that copy of the deed to plaintiff.  That was after Pease placed him in charge, to show him that I was accountant and manager under it.  I know that Pease was agent for Williams down there, the business they had being on coconut oil shells, &c.  I never purchased any of these for the company.  The Malolo was used to collect oil and once or twice to get provisions from the Lizzie Allen; the distance being six miles, and, taking, according to the way things were done there, four or five days.  She was used for oil whilst the plaintiff was on board.   She was of 61 tons register the other ships being much larger.  She was not at all adapted for the timber trade/ The Golconda and Lizzie Allen, chartered vessels, were engaged in the Company's timber trade.  The Malolo was not chartered while I was there, and I was manager under the deed of partnership. 

   In the latter part of 1868 Capt. Pease came down from the Group in the Water Lily, and as I knew he had been misconducting himself I had words with him and we quarrelled.  He asked me to take the books to another part of the islands for him to see, and when I went to his Brig he was away.  When I returned, Mahlmann was in the house, and Pease met me and told me he had put Mahlmann in my place.  I believed if I resisted he would resort to violence.  I had previously tendered my resignation by letter to Glover and Co., or Mr. Groom, but said I would wait until some one else was put in my place.  Capt. Coe was therefore sent down to look after the business, and I saw him at Ascension fulfilling the dame duties.

   To Mr. EAMES - Pease was Williams' agent.  The object with Williams' vessel was to collect oil, and to take oil to Honolulu.  I can't tell whether Pease was using the "Malolo" against the wishes of Williams.  Briggs' power was granted to try and get possession of the vessel from Pease; and Williams found fault because the "Malolo" did not go back to Honolulu with the oil.  Mahlmann was in the Malolo shortly after the arrival of the Water Lily, up to the time of her wreck.  That is, about a month and a half.  He made one trip for provisions.  My duties were confined to the island of Ascension.  Pease took such stores as he wanted for me on board the Malolo as well as other vessels.  I did not collect any oil.  I signed this receipt for seven casks; they were water, not oil, casks.  I won't swear I never received any oil casks, but I used them for water.  I did think Mahlmann was the best man to take my place, after I left.

   This ended the case for the Defendants.

   [We are obliged to omit the concluding speeches of the Counsel on each side, to enable us to conclude our report in to-day's paper.]

   The JUDGE did not think he need take up the time of the Jury by any elaborate comments.  They had heard the evidence, and he would leave it in their hands.  He only wished to remark on the power of one partner to bind another; that it was clear Pease was a partner in the Company, and went down with a general power to trade.  Under any circumstances one partner may bind another; but here, he was acting at a distance, and the whole control of things in his hand.  Pond's appointment as accountant and manager at Ascension could not interfere with Pease's power as partner.  It was true, certain things were excluded by the Deed of Partnership.

But Pease had engaged Mahlmann to take charge of a certain vessel, and afterwards to manage the Company's business on shore.  He did not see what Mahlmann had to do with these particular things.  If the Company was bound not to trade in oil, Mahlmann was not bound to know it.  His business was to serve his employers; it was not for him to enquire into these restrictions.  Besides, although the Company had agreed on these restrictions, it was quite competent to them to change their minds among themselves. 

   He must lay down, therefore, that there was no question of Pease's power to appoint Mahlmann to command the Malolo; so if the Jury saw enough proof that he did appoint him a servant of the Company, there was nothing to be said in regard to his power. 

   Then, in regard to the new partnership which had been spoken of, it seemed to him (the Judge) that nothing had been done in Shanghai which could affect the arrangements of the previous partnership.  There did not seem to have been any formal dissolution; and there was certainly nothing that could affect the old clauses of agreement.  As to the services rendered by Mahlmann ashore, after the death of Coe, he agreed with Mr. Eames that a person might, under extreme circumstances, though a stranger, take charge of property to prevent its going to ruin, and he was entitled to recompense from the owners for his services.

   The question of account would be one entirely for the Jury to consider.  He thought he had now referred to all the facts that needed comment.  He did not know if there were any point of law on which they needed information.  If so, perhaps they would mention it.  Otherwise he would leave the case in their hands.

   The JURY retired for a short while, and returned with the following verdict: - Verdict for Plaintiff for the sum of $1,225, being $1,000 on promissory notes of $600 and $400, and $225 for services rendered in taking care of property on Ascension Island on the death of Mr. Coe, at the rate of $50 per month.  The sum paid by Mr. Bidwell for board and lodging of plaintiff in Shanghai, to be deducted from the amount.

   Mr. EAMES applied for costs.

   His LORDSHIP said he would take time to consider the application.

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