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Colonial Cases

Encarnacio v. Taylor, 1876

[auction]

Encarnacio v. Taylor

Civil Summary Court, Shanghai
Mowat, 11 November 1876
Source: The North China Herald, 16 November 1876

 

LAW REPORTS

CIVIL SUMMARY COURT

Shanghai, Nov. 11th

Before R. A. MOWAT, Esq.

  1. ENCARNACIO v. J. A. TAYLOR

   This was a claim for Tls. 51, the value of three magic lanterns sold by the defendant, who is an auctioneer, on the 29th of August last.

   Plaintiff stated that about the end of July, he took three magic lanterns with their fittings and slides to the defendant's saleroom for the purpose of having them sold by auction.  Defendant was not in, and in his absence his clerk, Mr. Ritchie, took possession of the articles and entered them on the books.  He told Ritchie that they cost him Tls. 96, and he would be content with five or ten less taels for them.  They were not to be sold lower than that, but they were knocked down for Tls. 51, and as that were not near their value, he should like to increase the amount of the claim if he had power to do so.

   His HONOUR said he had power to increase it to anything under $100.

   Plaintiff decided to increase the claim to tls. 70.  Since the sale, he had applied to the defendant for payment, but he (defendant) had refused to hand the money over, alleging that the articles sold were represented to him as the property of Ritchie, who had been paid the money they fetched at the sale.

   Defendant said he did not know anything about the plaintiff being interested in the lanterns until after the sale was over and everything settled up.  Ritchie, who was then his clerk, first told him that the lanterns belonged to a friend of his, and then a few days afterwards Ritchie said that he had lent money on them and that they were his property.  They were sold for Tls. 51, and he produced a receipt from Ritchie for that amount.

   Plaintiff denied that Ritchie had lent him money on the articles, and said he told the defendant, before Ritchie went away, that he (Ritchie) had nothing further to do with the articles beyond what he had done in his position of clerk at the saleroom.

   His HONOUR said it was plain defendant had made a mistake, which he was responsible for.  In paying Ritchie he had not paid the proper person, and therefore his judgment would have to be for the plaintiff.  If an auctioneer paid over the proceeds of goods to a person other than the one who entrusted them to him for sale, he had to prove that such other person wads the owner.  It was a hard case; defendant would have to pay the money again out of his own pocket, and under these circumstances he (His HUMOUR) wished to know if plaintiff would be satisfied with the amount the articles were sold for, namely Tls. 51 - otherwise evidence as to the limit given and the actual value of the goods, would have to be taken.

   Plaintiff said he was willing to accept Tls. 51, and judgment for that amount, with costs, was accordingly entered.

 

The North China Herald, 8 March 1877

CONSULATE-GENERAL FOR PORTUGAL.

Shanghai, March 2nd.

J. M. TAYLOR v. A. d'ENCARNACAO

   On 11th November, 1876. Defendant sued plaintiff in H.B.M.'s Supreme Court to recover the proceeds of sale of certain magic lanterns, said to have been entrusted by defendant to plaintiff through his clerk, J. Ritchie, to be sold by auction on defendant's account; and Mr. Mowat in absence of evidence supporting plaintiff's assertion that he sold the lanterns on Ritchie's account, to whom the proceeds were paid, Ritchie being away from Shanghai at the time, recorded judgment in favour of defendant for Tls. 51 and $3 costs.

   J. Ritchie having returned to Shanghai, plaintiff instituted proceedings to recover the amount adjudged to defendant in that settlement and the case was first heard on 6th January, when Ritchie proved by witnesses to the payment of certain sum of money, and a debit note made out and signed by defendant in his own handwriting for Tls. 20, that the defendant sold him the three magic lanterns and fixtures for that amount.

   After several adjournments, in which defendant tried to upset the case of plaintiff by denying receipt of any money from Ritchie, and alleging that the debit note, which was thus conceived:- "Shanghai, 1st September, 1876, Mr. J. Ritchie, Dr. to A, d'Encarnacao. - For I complete set of magic lanterns with 60 odd slides, &c., &c., and book of instructions - Tls. 20.  Received payment. A. d.Encarnacao." - was given for the hire of the lanterns in question for a show, and further calling two witnesses and filing affidavit of another who, he said, knew everything about the transaction, but who could not in reality say anything about it, His Honour said that he regretted to see defendant in such an awkward position, and as the plaintiff only wanted his money and did not choose to press the case as one if fraud, finally ordered the defendant to pay the Tls. 51 and $3 costs to plaintiff on 15th January.

   The amount having been unpaid up to the 23rd February, and defendant during the while having tried to evade the payment by several letters to the Consulate, at plaintiff's request he was summoned to show cause why the decision of the 15th January was not compiled with, and what prospect there was of his ever refunding the amount so unlawfully obtained from plaintiff.]

   Defendant said he had no means and proposed to pay $10 per month until liquidation, but the plaintiff would not hear of it.

   The Acting Consul-General informed the defendant that he was to pay the whole amount the next day or bring sureties to pay it within three days, in default of which he would commit defendant to jail and deport him to Macao.

    Defendant asked if the Court could imprison him for a civil case of debt, to which his Honour replied that what defendant supposed to be a simple case of debt was a little more than such, and a very ugly and shameful case too.

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