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Colonial Cases

Minor Cases, China, 1875

The North China Herald, 14 January 1875

CLIPPINGS

 A well-known Chinese shoplifter went into a shop in the Honan road, on Christmas day, and as on former occasions when he visited the shop, small articles were missed from the counter, one of the shopmen went to a back part of the shop where, with his back to the fellow, he could observe his actions in a large mirror.  In a very short time he observed him secrete a rug beneath the long garment he was wearing, and then hasten out of the shop.  The watcher started in pursuit and soon caught the thief, whom he observed at the same moment to cram something into his mouton and swallow it.  He was taken to the Central Police Station, and after the charge was entered, paced as usual in a cell.  Soon afterwards, Mr. Inspector Fowler heard an unusual noise in the cell, and on going to ascertain the cause, found the prisoner apparently in the agonies of death.  Ass speedily as possible, Mr. Fowler caused him to be removed to the native hospital in the Shantung road, where an emetic was successfully administered, and it was discovered that the stiff the prosecutor saw him swallow was opium.  On Saturday the man was sufficiently recovered to be taken to the Mixed Court, and as he was recognised as a thief who had only recently been liberated from prison in the native city, he was sent there to be again dealt with by the Chehsien.

 

The North China Herald, 14 January 1875

SUMMARY OF NEWS

    We give to-day the texts of two judgments delivered by Sir Edmund Hornby at the Supreme Court on Saturday.

   The first is in the case of Chay-a-Sahichi v. Mourilyan Heimann & Co., appealed from the Consular Court at Hiogo, as to which his Lordship reverses the decision of the Court below.  Being of opinion that a breach of the charter-party had been committed on which some damage may have been sustained, his Lordship remits the case back, to be re-heard on that point, the plaintiff to be at liberty to adduce evidence of damage.  Each party (for reasons stated) to pay their own costs of the appeal, but costs in the original cause to depend on the result of the new trial.

   In the case of Malone v Walton, of which we gave a summary on Thursday, his Lordship allows plaintiff, late master of the Alexandra, 12s. 6d. beyond the amount paid into Court by defendant, the owner of the vessel, - each party to pay his own costs.

 

The North China Herald, 21 January 1875

CIVIL SUMMARY COURT.

Shanghai, Han. 16th.

Before R. A. MOWAT, Esq.

WHA CHING v J. S. MORPHEW

   Claim $20, for goods sold and delivered.  Defendant admitted his liability to the extent of $14.25, and said that the plaintiff, who was a boot and shoe maker, had been in the habit of supplying him with boots and shoes for the last twelve months.  He had recommended him to other customers, and very lately had discovered that shoes which plaintiff charged him $4 per pair, he had only charged his friends $3.00 a pair, therefore he (defendant) had cut $6 for six pairs of shoes supplied during the year.

   Plaintiff  said that he  had charged $3 per pair for shoes for cash only.

   Defendant   said that he made the agreement to accept the amount less the deduction providing he was paid the 1st day of December, but as he had not been paid, he now claimed the full amount.

   His WORSHIP said that if defendant only paid once a year he thought that plaintiff was justified in making a high charge than he would on a cash transaction.  But apart from that, the plaintiff must have judgment on the simple ground that he had agreed to supply goods at a certain price, and that having supplied then, he was entitled to be paid the contract price, whether it was higher or lower than the priced for which he supplied other customers with the same goods.  Judgment with costs for the plaintiff.

WA-SHING V. F. W. TEMPLEMORE.
   Defendant not appearing, and plaintiff having proved his claim, judgment was given by default.

 

The North China Herald, 21 January 1875

U.  S. CONSULATE

Shanghai, Jan. 18th.

Before O/ B. BRADFORD, Esq.

Drunkenness and Assault.

   BERNARD QUINN, s seaman of the U.S.S. Kearsage, was charged with being drunk and assaulting a jinrikisha man, and also resisting a native constable who endeavoured to arrest him.

   It appeared that the defendant came from the French Concession, and on being asked for his fare at the foot of Garden Bridge, he violently assaulted the jinrikisha man, striking him in the face with his fist.  A native constable came to the rescue of the jinrikisha man, when defendant turned upon him, rolled him in the mud, and pulled a handful of hair out of his head.

   Mr. BRADFORD ordered defendant to be kept in confinement for one week on bread and water, and to pay 20 cents to the jinrikisha man.  The defendant was informed that his sentence was made so light, on account of its being expected that his ship would leave before the end of the week.

 

 

The North China Herald, 28 January 1875

CIVIL SUMMARY COURT

Shanghai, Jan. 21st.

TSANG ZING v. A. FERGUSSON.

Claim, $13, wages.

   Defendant admitted that he owed the plaintiff $11.10, but said that on the 13th inst. A Tls. 10 note was missed from the house, and plaintiff in common with the other servants of the house were told that they would have to find it.  Plaintiff immediately ran away, therefore the natural conclusion was that he was the thief.  He had never asked for his wages.

   Plaintiff said that he was locked in a room and beaten by his mistress, and threatened with a pistol, so he ran away because he was accused of stealing Tls. 10.  His clothes had been detained, and were upstairs.

   His Worship said that there was no proof that plaintiff had stolen the money; if the defendant believed he had, there was a remedy by taking him to the Mixed Court#.

   Plaintiff - Well, I shall certainly do so; cam I have him arrested here?

   His Worship - You can give him into the custody of the first policemen you meet,

   Defendant - While I am gone, he will disappear.  I don't know where he lived.

   His Worship - I am not a police officer, and you can hardly expect me to go and look for one for you.  I shall, as you admit the amount of $11.10, order that amount with the cost of the summons, to be paid in to this court, where it will remain for one w eek, to give you an opportunity of prosecuting the prisoner in the Mixed Court; and you must let him have his clothes.

 

YU ZU SHING v S. W.  SANG

Claim, 60.50, money lent.

   The case was called on, but the plaintiff made so much noise in the lobby of the Consular building, that his Worship, to punish him, postponed the hearing, the defendant being content that the hearing should be postponed.

 

Jan 22nd.

SAN-TA-SHING v. G. TYLER

Claim $10, money received by Defendant for and on behalf of the Plaintiff.

   HIS HON OUR asked defend fan t if he admitted the claim?

   Defendant replied that he knew nothing whatever of the nature of the claim.  He had made enquiries of the officers of the court, but could obtain no information on the subject whatever.  He now recognized the plaintiff as having been formerly employed as a cook in the gaol.

   Plaintiff, cautioned, said though Heding, the consular interpreter - I was a cook at the gaol for 20 years.  I was dismissed on the 17th of last month.  I used to receive $7 per month as wages.  Four months ago it was reduced to $5 per month.  I claim $2 for each of the four months, and $2 for the 17 days of the month I was dismissed.

   Defendant said that in July last plaintiff misconduct himself by consenting to be the means of communication  between persons outside and the prisoners, for which offence he was disrated in pay.  In stead of receiving $7 per month he got $5.  But he was so lazy and dirty that eventually he was dismissed.

   HIS HONOUR asked plaintiff why for four months he received the $5 instead of $7, if he thought he was entitled to the higher amount?

   Plaintiff said that he did apply to the officers, but was told that Mr. Tyler would not pay him any more.
   Defendant said that he joined the Gaol service in Nov., 1873, and on Jan. 1st, 1874, he took charge.  The plaintiff had formerly been employed as a cook for him (defendant) and the junior constables.  The chit coolie also acted as his servant.  He disrated the plaintiff in July for misconduct, but he still did the cooking.  Both the plaintiff and the chit coolie received extra money from him and the constables for attendance upon them.

   HIS HONOUR asked if the defendant had authority to discharge or disrate any of the servants employed by the Government?

   Defendant thought that he had that right, at least he inferred so from the fact that it had been done by his predecessors.

   HIS HONOUR doubted the authority, and expressed his opinion that men plaid by Government for public duty should not be converted into private servants.

   Judgment for the plaintiff for $10 and the costs of the summons.

 

The North Chinas Herald, 4 February 1875

At the Police Court on Monday, a somewhat unusual charge of robbery was investigated.  Two young fellows, an able and ordinary seamen of the British ship Corona, were charged with stealing 400lbs. of fat, the skimming's of the ship's coppers.  They took the fat, which was contained din two barrels, out of the fore-peak of the vessel on Saturday night, and sold it to a Chinese in Hongkew, bearing the euphonious name of "Buffalo," for $4.50 per barrel.  The Chief Officer, on being questioned, said the oleaginous compound belonged to the owners of the vessel, and that he had sold two similar barrels in New Zealand, by the authority of the captain, for 25s. each.  The defence was unique.  It was to the effect that the fat was the produce of the boiling of the pork and beef served out as food to the crew, that it was part of the food of the crew, who, if they had chosen to do so, might have gone to the coppers and skimmed it off for themselves; and that, although it was skimmed off by the cook, and put into barrels, it did not belong to either owner or captain, but remained the property of the curfew - in this case the more especially as the cook of the vessel (who was discharged in New Zealand for drunkenness) had saved it, expressly by arrangement with the captain, for sale, the money to be divided among the crew.  Mr. Mowat declined to solve this knotty or, rather, greasy pint without an interview in Court with the captain.  Everything else apart, the case is one which shows the necessity of a more prefect understanding between the captains, officers, and crews of merchant t vessels as to the ownership of the refuse of food actually handed over for the men's consumption, and which they might have eaten if they could only have swallowed it.

 

The North China Herald, 11 February 1875

POLICE COURT.

Shanghai, February 3rd.

Before R. A. MOWAT, Esq.

Reg. (master of str. Appin) v. JOHN DIXON.

   Defendant is second engineer of the Appin, and was summoned for being absent without leave.  It appeared that he obtained permission from the chief officer to go ashore on the evening of the 28th, and did not return till the evening of the 29th whereas he should have returned at the latest on the morning of that day.

   Defendant said he understood he had got permission for as day's leave.  Ordered to pay the cost of summons.

 

The North China Herald, 11 March 1875

LAW REPORTS

CIVIL SUMMARY COURT

Shanghai, March 3rd.

Before R. A MOWAT, Esq.

SING-FOW v. J. SNOWDEN.

   Plaintiff sued defendant to recover $30.49, for wages and money advanced and expended.  He said, however, that defendant lent him $5 at the China New Year, which reduced his claim by that amount.

   It was stated that the defendant, who is a pilot, had gone down the river with the Northampton and had not returned.

   Hearing adjourned in consequence.

 

 

The North China Herald, 25 March 1875

CIVIL SUMMARY COURT

Shanghai, March 22nd.

Before R. A. MOWAT, Esq.

F. MAWHOOD v. H. NETHERSOLE, jun., and C. EDBROOK.

   This was an application for the discharge of Nethersole from the receivership of debts due to the later form of Edbrook and Mawhood.

   It was stated that Nethersole was ill in hospital, unable to perform his duties; and, after some conversation, it was arranged that the remaining debts, amounting to about Tls. 900 (some of which were, however, believed to be bad), should be collected by Mr. Edbrook, on joint account, at the same commission at that charged by Nethersole.

   Costs to come out of the estate.

 

 

The North China Herald, 25 March 1875

CIVIL SUMMARY COURT

Shanghai, March 23rd.

Before R. A. MOWAT, Esq.

Action to Recover Professional Fees

H. BROUGHAM MILLER v. E. BELBIN

   Plaintiff sued to recover Tls. 50, as fees for professional services.

   Defendant said he did not owe the plaintiff a cash.

   Plaintiff, who had stepped into the witness box, asked that witnesses on both sides should be sent out of Court.

   His HONOUR - Presently.  I see from the summons that the claim is in respect of "professional services" - is that as a lawyer?

   Plaintiff - yes.

   His HONOUR - How do you get over the difficulty of a barrister not being able to bring an action for his fees?

   Plaintiff - I am an attorney; Sir Edmund Hornby described me as such, in an order applied for the day before yesterday by Mr.  Wainwright; and I am practising as an attorney.

   His HONOUR - And you wish me to take it that you are an attorney?

   Plaintiff - Yes, of course; and if you will swear me, I will swear that I am.

   Plaintiff was sworn accordingly.

   His HONOUR - Are you a barrister-at-law?

   Plaintiff - yes, in England.

   His HONOUR - Well, you cannot be a barrister-at-law and attorney as well, can you?

   Plaintiff - Are you Counsel for the defendant, or are you not?  Why not let me make my statement?

   His HONOUR - It will save time if I tell you my impression is -----------------

   Plaintiff - I do not want to know anything about your impression.  We want the law of the case.

   His HONOUR - My impression is that as a barrister is, in England, unable to being an action to recover his fees, so you are equally unable.

   Plaintiff - It is filed in the Court that I am an attorney - and practising as an attorney.  And being so, I can sue.

   His HONOUR - Are you alluding to the matter that you have already mentioned as occurring the other day?

Plaintiff - I am alluding to the order which Sir Edmund Hornby made upon me, on the application of Mr. Wainwright.  The order, I say, describes me as an attorney, so I must be one.

   His HONOUR - That was subsequent to the time when you rendered the services for which you sue; it cannot bind the present defendant.  Were you ever admitted as attorney?

   Plaintiff - No, I was not.  I have, however, practised in these Courts as an attorney.  The thing would be different in Hongkong, where barristers are barristers and attorneys are attorneys, - but here they are barristers and attorneys too.  It was originally so in Hongkong, but subsequently altered, and now a barrister there cannot do an attorney's work, nor an attorney a barrister's.  Before they could do both, same as here now.

   His HONOUR - That has nothing to do with the case here.  I do not know what they can or cannot do in Hongkong.  I must ---------

   Plaintiff - it does matter, Sir; whether you know it or not.  If you will not hear me, of coifs there is an end of the case; but I would ask, how is it that an attorney can plead here in an equity court, before the judge, when he sits in equity?  The practice here makes a man a barrister and an attorney at the same time.

   His HONOUR - The difficulty is not as to the practising - it is, whether being a barrister, though acting as a general practitioner, you can sue for your fees.

   Plaintiff - That is the difficulty, and I know it.  And if this is passed, they next thing they will do will be to cheat the attorneys.  If the attorneys ------

   His HONOUR - If that point arises, then will be the time to deal with it.

   Plaintiff - But if an attorney can act as a barrister here, why not a barrister as an attorney?  I think I am admitted here as an attorney in the rules of the court.  Sir Edmund Horn by has power to do that, under a certain rule, - I cannot remember which rule it is.

   His HONOUR - But his or your mere description of yourself as an attorney, will not alter the fact of you being a barrister.  The question is, can you, being a barrister, recover your fees?  In England you cannot, as you yourself admit, do so.  There is no doubt that you can practice here as an attorney, but that of itself does not give a right to recover fees.  I must say I think it is a very hard case, and moreover an anomalous state of affairs that a solicitor can act as a barrister, and recover his fees in both capacities, while a barrister is not able to recover.  But I cannot see any way to helping that.

   Plaintiff - I do not agree with your points of law, but I suppose I must abide by them.

   His HONOUR - Unless you can show me some authority or some precedent.

   Plaintiff - I cannot show you any precedent.

   His HONOUR - I will adjourn the summon s if you like, to give you time to look.

   Plaintiff - I do not want that at all; but I would like to have the judge's order produced, in which I am described as an attorney.  I mean the order taken out by Mr. Wainwright.  There I am described, rightly or wrongly, as an attorney, and I say I am an attorney.

   His HONOUR - Oh, no.

   Plaintiff - Then the order was wrong?

   His HONOUR - It does not follow that, because it is there so stated, it is so.  I am sorry that I must decide as I do, for it is very hard, if a man does work, that he should not be paid for it.  You can take the Judge's opinion on the matter if you choose, by way of re-hearing.

   Plaintiff - No, I don't want that.  I should have been saved a great deal of trouble if I had only known this before.

   His HONOUR - This is the first time it has been before me.  I could not entertain the question until it was brought here.  I have taken some trouble looking over the authorities, to see if I could find one applicable to your case, but I could not.  I will only add that if you did work for the defendant, it is most discreditable in him to refuse to pay you.

    Plaintiff - I you decide you cannot hear me, I cannot go on; but your decision will be without costs?

   His HONOUR - Except cost of summon s, which you have paid. - I may remind you that, even if you could sue as an attorney, you would fail at present, as the month that must elapse between delivery of the bill and the action has not elapsed - the summons stating the service to have been rendered on the 2nd March.

   Judgment for defendant.

 

The North China Herald, 29 June 1875

U. S. CONSULATE GENERAL                                                        [U.S. COURT]

Shanghai, 15th June.

Before GEO. F. SEWARD, Esq., Consul-General.

T.  W. COWELL v. J. H. WILLS

   The plaintiff, a British subject, sued the defendant, an American citizen, to recover $20 for wages, and also, under an agreement, board for fifteen days, at $1 per days, and for the use of a small carriage, fifteen days at $1 per day.  Plaintiff further claimed the delivery of certain goods and property detained by the defendant.  A bill of sale to Wills, a livery stable, from Cowell to Wills, was produced, and attached to it was a schedule of the articles sold.  It appeared upon examination that the parties had not taken pains to ascertain the articles actually transferred, to see whether they agreed with the list.   In respect to this part of the case, the Court directed the parties to go over the stock-in-trade together, the defendant to deliver to the plaintiff any articles on the premises not included in the inventory.

   With regard to the money claim, the defendant alleged that plaintiff had collected a sum in excess of the amount named in his petition, which amount, as collected, the defendant claimed under the terms of the bill of sale.  Upon reference to the bill of sale, it was found that the plaintiff had sold to the defendant all debts due and owing to him on account of the business, while he himself agreed to pay all claims against the concern.  It seemed, in this connection, that the plaintiff had misunderstood the terms of the bill of sale, believing that he had a right to collect the back debts, and to apply them to pay claims against the business.  The amount so collected being in excess oaf the plaintiff's claim against the defendant, the Court dismissed the summons, and directed plaintiff to pay costs.

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