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Colonial Cases

Smidt v. Smith, 1876

[enforcement of judgments]

Smidt v. Smith

Civil Summary Court, Shanghai
Mowat, 3 April 1876
Source: The North China Herald, 6 April 1876




Shanghai, April 3rd.

Before R. A. MOWAT, Esq.


Judgment Summons

   In September last, plaintiff obtained a verdict against defendant for $31.39.  None of the money, however, had been paid, and plaintiff had in consequence issued a judgment summons.

   Defendant, in reply to questions, said he had no means of paying; and further, that plaintiff had promised to let him off paying $17, which, however, he had not been able to pay.

   Plaintiff denied that he had agreed to take $17.  He consented to take $25 in liquidation of the debt, by monthly instalments of $9 for the first month, and $8 each for the other two months, but defendant had paid noting.

   Defendant in answer to further questions, admitted having sold his share of the business in the "Bank Exchange" to his partner for $140, on Wednesday, the 29th, and that, on the following night he paid Mr. King, another creditor, who had also obtained a judgment against him in Court, $122, although the amount he sued for was only $99.50, the greater sum being the full amount of the debt.  The balance, $18, he had paid away to his shoemaker, tailor, and other people.

   His HONOUR said such conduct was very unfair to the present plaintiff, the judgment in whose favour was now half-a-year old, and should have been satisfied before King's was obtained.

It was also elicited that on Saturday, the 25th ult., defendant was served with an order of the Court, to pay the present plaintiff's claim.

     His HONOUR said it therefore seemed that before he sold his share in the business, defendant had been reminded that there was a judgment of the Court against him on a prior claim, and yet he afterwards paid the other people instead.  That was not at all fair conduct, and upon the facts as they appeared, defendant was liable to imprisonment.  Since the making of the order, he had had sufficient money to pay this debt, as his own statement showed, and neglected to pay it.  After paying the present plaintiff, there would have been a balance of $109, out of which he could have paid King all he was entitled to get under the order of the Court in his case, A person who acted in the way defendant had, having been ordered by the Court to pay money, and being able to pay it, was liable to be imprisoned for 40 days.  Had defendant anything to say whey he should not be imprisoned?

   Defendant said he had nothing mire to say.  He would pay the money as soon as he could.  He did not suppose he would be long out of work.  He owed now about $100.

   His HONOUR said there was no garbage that he would not pay other people again whom he was not ordered to pay.  He must bear in mind that he was ordered to pay the plaintiff.  By what he had done, he had defied the order of the Court, having had the means to obey its order, and neglecting to do so.  But His Honour would not now look at the case in that way - he would only look at the very unfair way he had treated the plaintiff.  Defendant had received an order of the Court to pay a certain  sum, which he had failed to do; but he seemed to have contrived to "do" the plaintiff by disposing of all the money he had since received for his share in the business; at least all the money was gone.  At the back of the document of the Court which had been served upon him, he would see the instructions upon the point, and what the result would be if he neglected them.  That document was served upon him three days before he sold his share in the business and obtained the $140; and yet in defiance of it, he chose to run the risk of imprisonment.

   Plaintiff said he did not believe defendant had sold his share of the business at all, because the business was still in his name.

   His HONOUR - Defendant had better be sworn.

   Defendant was accordingly sworn, and stated he had sold his share "out-and-our," for $140.  He had been offered $900 for the business some time ago, but his partner declined to sell, then.  He had also been offered $1,400 for it, but having only a half share, he could not accept it.  His present partner had since gone on paying expenses out of his own pocket, as the place had not paid, until his (defendant's) half share was absorbed all but the $140, for which he had now sold it.  He had never had the house to himself.

   After some replies to extraneous questions, defendant said the license would be transfused by the Municipal Council to the present proprietors from him.  There were about $100 worth of chits due, which the plaintiff could have to collect if he chose to take the trouble, as he (defendant) could not get them inn.  Some of them were owing by persons able to pay.

   His HONOUR said those persons should be summoned.  It was only just, that in order to pay his own creditors, defendant should sue his debtors who could and would not pay.  The case now stood, that if the plaintiff asked the Court to commit defendant to prison, he would be accordingly committed.  There was the clearest case made out against him.  People must be made to know that they could not so these things with impunity, and that when the Court makes an order for money to be paid by debtors, it must be obeyed.  It seemed as if defendant had done all he could to do the plaintiff out of his money, and unless the case was settle med by arrangement with the plaintiff, the law must take its course.  Either one or both of them had better appear in Court tomorrow morning at ten o'clock, and state what arrangements had been come to, if any.  Defendant had better try to get back the $30 odd, he had paid King, more than what he was entitled to under the order of the Court, and satisfy the plaintiff's claim with the money, and afterwards, if he chose to return the money to King, to do so.

   The parties then withdrew.

4th April.


   This case was adjourned from the previous day.

   In answer to the Magistrate, defendant said he had collected $10 and offered it to plaintiff yesterday.  He had been round trying all day, and that was all he had been able to get.  If Mr. Smidt will come along with me I will pay him the money, and if I get any more in the course of the week, I will pay him as fast as I collect it.

   Asked what he said to this proposal, plaintiff said he had offered to accept $25 in full discharge of his claim.

   The Magistrate said, but evidently the defendant had not the sum.  The question was whether he should punish defendant for disobeying the order of the Court; and in that respect he should be guided very much b y the wish of the plain tiff, if he made the application.

   Plaintiff said if defendant would pay $25 into Court for the benefit of any charitable institution, hew would forgo the claim.

   The Magistrate said, but defendant evidently had not $25 to pay.  There was no reason why plaintiff should forfeit his claim.  Let him get the money first, and do what he liked with it afterwards.

   Plaintiff would leave the matter in the hands of the court.

   The Magistrate ordered defendant to go home and get the $10, and bring it to the court, and all his bills, within an hour; proceedings could then be taken if necessary, against any of his creditors who refused to pay.

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