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Colonial Cases

Murray v. Wallworth and Co., 1871

 

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Murray v. Wallworth and Co.

Supreme Court of China and Japan
28 March 1871
Source: The North-China Herald, 29 March 1871

 

LAW REPORTS

H.B.M. SUPREME COURT.

Shanghai, March 28th, 1871.

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

G. MURRAY            , plaintiff, appellant,

versus

WALLWORTH & Co., defendants, respondents.

In appeal from the Consular Court at Hiogo.

   The Plaintiff appeared in person; J. Wallworth and J. G. Storie for the respondents,  both partners in the late firm of Wallworth & Co.

   The original petition sets forth -

1st. - That the above-named George Murray, on the 2nd of November, 1869, authorized the defendants to purchase for his account a Japanese steamer called the "Orphan."

2nd. - That on the 3rd December, 1869, the said George Murray remitted to the defendants, as bargain money, the sum of $1,000, which they (defendants) acknowledge to have received.

3rd. - That the defendants were unable to purchase the above-named steamer, and do now refuse to return to the said George Murray the $1,000 received by them as above-stated.

4th. - That the defendants are further indebted to the said George Murray in the sum of $16.53 as per their acknowledgment dated November 29th, 1869.

   The answer of the defendants, by W. K. Tucker, liquidator on the estate of Wallworth & Co., states as follows:-

1st. - That the receipt of the money as specified in plaintiff's petition, amounting to $1,016.53, is admitted.

2nd. - That by a subsequent letter of instructions from George Murray, of Shanghai, the said sum of $1,016.53 was transferred to Jas. Wallworth, Esq., and the firm of Wallworth & Co. is not indebted to the said George Murray.

   Finding of the Consular Court at Hiogo:- It having been proved by the books of the firm of Wallworth & Co. (in liquidation) that the sum sued for was placed to the credit of Mr. Wallworth prior to this action being brought, the Court gives judgment for defendants, plaintiff in costs.

 

On the case being called to-day,

   His Lordship said he presumed there was no further evidence to be brought than that given before the lower Court, but parties might give any further explanations in their power. As His Lordship understood the case it was that a sum of money was due from the firm of Wallworth & Co. to Mr. Murray, and one of the partners being over here, Mr. Murray wrote to Mr. Tucker, another partner, directing him to pay over the money to Mr. Wallworth, who would give him a receipt for it.  At that time it appeared the firm was in liquidation, and Tucker credited Wallworth with the amount, and considered that by this Murray was paid.

   It had been decided by the Consular Court that it was a good payment to Mr. Murray, and on that decision he appealed.  His Lordship believed there was no question of fact connected with the appeal, but one of law.

   Mr. MURRAY said the facts were misstated according to the dates, as he had a letter of the 19th May in which Mr. Tucker acknowledged that the firm of Wallworth & Co. owed the amount.

   His Lordship, having perused this letter, thought it referred chiefly to a different matter.  It might be proper to ask now whether Mr. Wallworth considered he had incurred the liability and would pay the money.

   Mr. WALLWORTH said the facts were somewhat misstated in the course of the action.  He himself had no knowledge of the trial till he saw it reported, nor any instructions from Mr. Tucker, nor did he know when the transfer entry in the books of the firm had been made.  The result of that entry seemed to be to transfer the debt to him.  On the 10th of May, when he left Kobe, the entry was not made to his knowledge; and on the 19th of the same month Mt. Tucker had written to Mr. Murray, acknowledging the firm's indebtedness.  In the report of the trial he found Mr. Tucker had stated that he did not know whether the entry was made before or after Mr. Wallworth's departure.

   His Lordship asked the state of Mr. Wallworth's account with the firm of Wallworth\& Co.

   Mr. WALLWORTH said that, irrespective of the sum in question, the firm owed him money.  The interest in the $1,000 was not yielded up by Mr. Murray, who had simply commissioned him (Mr. W.) to receive it for him.

   His Lordship remarked that there being no real payment of this money at all, the thing remained in its original position as owing by the firm of Wallworth & Company to George Murray.  It was laid down by a celebrated Judge, Chief Justice Abbott (in Russell v. Bangley, Smith's Mercantile Law, 147) as a "General rule of law, that, if a creditor company employ an agent to receive money of a debtor, and if the agent receives it, the debtor is discharged as against the principal" - If Mr. Tucker had actually handed over this money, plaintiff would have had to look to Mr. Wallworth alone; "but if the agent, instead of receiving money, write off money due from him to the debtor, then the latter is not discharged" - so that even if Mr. Wallworth had consented to have the amount written off against his account, it would have been still due.  Under this authority, which was very clear, defendants' firm was still liable for the money.  The finding of the Court below would therefore be reversed.  Costs to follow judgment.

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