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Colonial Cases

Barton and Burge v. Woodward, 1876

[medical practitioners]

Barton and Burge v. Woodward

Supreme Court for China and Japan
Mowat A.J., 30 June 1876
Source: The North China Herald, 8 July 1876

 

LAW REPORTS

H.B.M.'s SUPREME COURT.

Shanghai, June 30th

Before R. A. MOWAT. Esq., Deputy Acting Judge.

G. K. BARTON and F. BURGE v. R. H. S. WOODWARD

   This was an action to recover Tls. 304, for medical attendance and medicines.  Both parties appeared, and the plantings set forth in their

Petition:-

   That the debt extended over a period of seven years, during which only two copayments have been received, of Tls. 25 in 1870, and Tls. 22,50 in 1871.  The account has been regularly rendered from time to time, and payment promised; and defendant also promised by letter dated the 13th January, 1876, to send cheque for the amount then due as soon as he should be paid off from the China and Japan Co.  On the 13th inst., having recouped his money, he again wrote promising to pay; but on the 14th instant he declined to pay, although he acknowledged having received Tls. 500, and is besides in the receipt of a good salary. - The plaintiff therefore prays that the defendant be ordered to pay the said sum of Tls.  304, together with the cists of the suit.

   The defendant filed the following

Answer:-

   That the defendant admits the claim named in the plaintiffs' petition, for the sum of Taels three hundred and four.  That in consequence of the China and Japan Marine Insurance Company not fulfilling their agreement with me, after said Company went into liquidation, I have been unable to satisfy all my creditors.

   I therefore pray that the Court will grant me permission to discharge the above debt, and that said plaintiffs will agree to the following proposition: - That I pay into Court or plaintiff's hands, the sum of Taels Ten (10) monthly, this amount owing at end of each month, to receive interest at the rate of (10%) ten per cent per annum, including costs of the suit.

   The defendant is not in receipt of a good salary, same being only Taels 125 per month, to germinate on the 31st August next, when defendant will b e out of employment.

   The COURT said it appeared from the answer that defendant acknowledged the claim, and proposed to pay it by instalments of Tls. 10 per month, the balance due bearing interest at 1-0 per cent, till the whole amount was paid off.  Was the plaintiff prepared to accept those terms?

   Plaintiff said he had waited five years, relying on defendant's promises to pay, before taking these proceedings; and it was only recently, within the last month or two, that defendant has received Tls. 800 or Tls. 900, but he still made no offer of payment.  He (plaintiff) had not received a farthing from defendant for five years, although he had been in receipt of a good salary.  Not only that, he had sent an impertinent letter in reply to an application for payment, saying he had no time to pay attention to such things.

   The COURT asked defendant is he was prepared to make any other offer of settlement.

   Defendant replied that he had been disappointed, when paid off from the China and Japan Insurance Company, in having received only Tls. 500, when he had expected another Tls. 500.  He had not kept any of the money, but had paid it away among other people to whom he was indebted.

   The COURT - That is a matter that ought to have been settled.  The amount you received has nothing to do with Dr. Barton.  Besides, he states you were in receipt of a good income previously.

   Defendant - No, I was not.

   Plaintiff - For three years, he was in receipt of Tls. 175, and for the last two years I think Tls. 45 additional, as Librarian at the Shanghai Library.

   Defendant - No, about eighteen months.

   Plaintiff - He is now in receipt of Tls. 125 per month.

   Defendant - But I have been paying other people and Dr. Barton knew of it.

   Plaintiff - No, I did not know of it; I do not know of it now.

   The COURT - This is a bad case.  Such debts as these ought e specially to be paid, but as it is not usual for medical men to being their debtors into Court, some people seem to take advantage of that, and neglect to pay.   Here, you have been in receipt of a good salary for a long timer, and have not had, shall I say, the common honesty to pay, or attempt to pay, this claim, a portion of which is now as much as seven years old.

   Plaintiff said it was the first time he had had occasion to bring anyone into Court.

   Defendant said he had been unfortunate, and not in a position to pay.

   The COURT - the misfortune seems to be on the plaintiffs' side.  You say you have paid other people; all IO can say is that the plaintiff ought at least to have been placed on the same footing as your other creditors, but you have made no effort to pay him.

   Defendant - Because I have not been in a position to do so.

   The COURT - You have been in the receipt of a good salary for a long time; how can you say you have not been in a position to pay? (To plaintiff) - What do you propose that he should pay per month?

   Plaintiff - I think he ought to pay Tls. 50 down, and then Tls. 50 per month.

   Defendant - What am I to live on?  Will you pay the balance of my expenses?

  The COURT - That is a most impudent question to address to a creditor.  Why should you ask your creditor to pay your expenses?  If you will not make some arrangement with your creditor, the ordinary course must follow and execution issue.  What will you do in the way of starting to get rid of this liability?

   Defendant - I cannot possibly gibe him more than Tls. 25 per month.

   The COURT - When is your salary due?

   Defendant - It is due today.

   The COURT - And the amount?

   Defendant - Tls. 125.  It ceased to be Tls. 175 at the end of March.

   The COURT (to plaintiff) Are you prepared to accept that offer?

   Plaintiff - It will take twelve months to pay it.

   Defendant - But there are Tls. 50 to come off the amount.

   Plaintiff - You will have to render an account of any set off you may have against me.  As to Tls. 50, I do not know if it is so much.

   The COURT - You had better render an account, and ascertain what is the difference between you, so that it might be deducted from the judgment.  The plaintiff's claim must be paid monthly, commencing from today, and at the rate of Tls. 40 per month.  If at any time, any one of the instalments fails to be paid, the whole debt become due, and the plaintiff will be entitled to apply for execution.

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