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Colonial Cases

Harrison v. Medhurst, 1876


Harrison v. Medhurst

Civil Summary Court, Shanghai
Mowat, 28 June 1876
Source: The North China Herald, 1 July 1876




Shanghai, June 28th

Before R. A. MOWAT, Esq.


   Mr. H. BROUGHAM MILLER, who appeared for the plaintiff, said defendant was sued as administrator to the estate of John Tozer, a deceased British seaman, who died on board the steamer Hanyang.   The claim was $97.95, for goods sold and money lent by the complainant, a storekeeper in the French Concession.  Tozer engaged for the Hanyang on the 13th of April last, and continued on board until his death in May.  Subsequently, an advertisement was inserted in a newspaper, from which it appeared that the consul was administer ding the estate, deceased having left no will.  The advertisement stated that all claims must be sent in to him.  Plaintiff accordingly sent in his claim, and was referred to Mr. Tapp.  An account was taken, but Mr. Tapp refused to pay the money. 

   One or two interviews followed, but with no result; and last of all Mr.  Tapp made an offer of a certain amount, which the plaintiff did not consider sufficient; and he (Mr. Miller) consequently then saw the consul about it. The only reason for the apparent hurry was that plaintiff had heard that certain articles of jewellery belonging to the deceased, were about to be sent to England, instead of being sold, and the money distributed here.

   His HONOUR - Why do you say "instead of?"  I suppose the Consul is proceeding under the Merchant Shipping Act?

   Mr. MILLER answered in the affirmative.
   His HONOUR - It seems to me that that is the prosper course to adopt.  To send the deceased's property home, is what the Act requires.

   Mr. MILLER - I do not find it there, but if you will allow me I will state my case first.

   His HONOUR - We are discussing a preliminary question.  If you can first show that the assets are to be distributed here, then you can go on to prove your case.

   Mr. MILLER said, he did not know to what Section of the Act the Court had referred.  He had just looked through the Act, and could not find it.

   His HONOUR said, the Section was No. 197, the subject of deceased seamen's wages and effects was commenced at No. 194, and went on to beyond No. 201.  But the Sections 197 and 201, with its sub-sections, related especially to this case.  The former ran,

If any such seaman or apprentice as last aforesaid dies abroad at any place, either in or out of Her Majesty's dominions, leaving any money or effects on board his ship, the chief officer of Customs or the British Consular officer nearest to the place, as the case may be, shall claim and take charge of such effects of any deceased seamen or apprentice delivered to him under the provisions hereinbefore contained; and every such officer shall, quarterly, or at such other times as the Board of Trade directs, remit to Her Majesty's Paymaster-General all moneys belonging to or arising from the sale of the effects of, or paid as the wages of, a deceased seaman or apprentice ,w which have come into his hands under the provisions hereinbefore contained, and shall render such accounts in respect thereof as the Board of Trade requires.

That means that the deceased's estate was to be distributed at home; the consul seemed to be nothing more than a receiving-officer for the Board of Trade.

   Mr. MILLER said, but as a matter of fact in this case, he is paying some of the creditors, and has made an offer in this instance of $38.  That plaintiff has a claim, is shown b y that amount having been paid into Court.

   His HONOUR - I can not make any order.  This is not the place to investigate such a case.  The sections of the Act are clear that the estate is to be dealt with at home.  In Section 197 there is not one word to imply that any deduction is to be made.  Moreover, the other Section, 201, contains rules with respect to the creditors of deceased seamen and apprentices, the third of which says,

Every person  making any demand as creditor, shall deliver to the Board lf Grade an account in writing in such form as it requires, subscribed with the name, and stating the particulars of his demand and place of his abode, and verified  y his declaration made before a justice.

It is clear, therefore, that the claim is to be preferred at the Board of Trade.

   Mr. MILLER said, if he could get the Court to hear the evidence, it would be shown that the deceased contracted the debt in question when he was not a seaman, and also that the Consul was dealing with the estate, and paying other people.

   His HONOUR - As to the first point, the debt is sought to be enforced out of the wages and effects of a deceased seaman. Hen as to the second, if the Consul is paying other people, it is at his own risk, and he lays himself open to the censure of his superiors.  But whether he is doing so or not, it does not give me any jurisdiction in the case.  Under the Act, I cannot order him to pay at all.  You, or your client, must go to the Board of Trade, as it is the Consul's duty to send all this money to the Board of Trade, where, the Act declares, such claims are to be investigated.

   Mr. MILLER - But the Consul has already dealt with some of the money.

   The CONSUL said, so many estates of this kind arise out here, that we are permitted to exercise discretion with regard to them; but we are certainly responsible in all cases.
   His HONOUR enquired weightier the deceased's assets would cover his liabilities?
   The CONSUL said the amount of money received was $87.45, and the claims sent in amounted to $156.25; besides which there was the support of a child fro which the estate was liable.  There were some watches and chains, which, not being perishable must be sent home; otherwise there would be sufficient to pay all claims.

   His HONOUR - The matter must be referred to the Board of Trade.  This is not the Board before which it can be investigated under the construction of the Act.  The plaintiff had better send home particulars of his claim at once, and it will then be ready for consideration by the Board of Trade by the time the Consul's statement of accounts reached there.

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