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Colonial Cases

Westermark v. Sutherland, 1876

[debt recovery]

Westermark v. Sutherland

Civil Summary Court, Shanghai
Mowat, 9 June 1876
Source: The North China Herald, 17 June 1876



Shanghai, June 9th

Before R. A. MOWAT, Esq.


   Plaintiff sued defendant, who is a pilot, to recover $98.62 1/2, for goods supplied.

   Defendant did not appear, but Mr. England who said he was authorised to appear for him, stated that he was willing to pay the money, if time was allowed him, although he did not know if it was a correct amount, and provided the plaintiff would not being any other claim against him.

   His HONOUR asked if plaintiff had any other claim against the defendant?

    Plaintiff replied that he had; it amounted to $57, and was of later date than the sum now sued for.

   His HONOUR - But you ought not to have split your claim.  I see that this bill runs from April, 1873, to March, 1875, only.  Why did you sue for a portion of the debt only?

   Plaintiff said, because it was more convenient, as he could not sue for mire than $100 in that Court.

   His HONOUR - That is so; but if you proceed under this summon s, I shall not be able to allow you to take another for the $57.  A man is not to be harassed by a series of actions, when all the transactions are the same.  It is only one debt, and must be sued for as one.  Will you proceed under this summon s, or withdraw it and sue for the whole debt?

   Plaintiff said he would follow the latter course.

June 12th.



Source: The North China Herald, 15 July 1876



Shanghai, July 10th

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


   MR. H. BROUGHAM MILLER appeared for the plaintiff.

   Defendant was unrepresented by Counsel.

   Plaintiff, keeper of a tavern called the Cosmopolitan, in Hongkew, sued the defendant, a pilot, to recover the sum of $157.15, for money lent and goods supplied, for his use and at his request, from the 29th of April, 1873, to the 16th January, 1876, both inclusive.  The plaintiff in his petition, further stated that he had frequently rendered full and particular accounts of the said amount due, and had frequently applied for payment; but although the defendant does not deny the truth of the same, he refuses to pay.  The plaintiff therefore prayed that the defendant may be ordered to pay the said sum of $157.15, together with costs of the suit.

   The defendant, in his answer, set forth that he was indebted to the plaintiff to the extent of about $45 or $50; that he had repeatedly applied to the plaintiff for a statement of his account, but without success, until about the 5th of June last, when he was furnished with a statement of which he knew nothing whatever, and therefore refused to pay the amount; that plaintiff had never furnished him with particulars of this demand until the above date, an d that he (defendant) had always denied the truth of the same from that date; and that he had repeatedly paid the plaintiff sum so f money in liquidation of his debt, upon the promise from him of partakers being furnished. - Subsequently to filing his answer, defendant filed an application, asking that the plaintiff may be requested to produce "all books of account, chits, letters, notes, writings, and all other documents whatsoever," containing any entry, memorandum, or other matters in any wise relating to the matter in question.

   The account filed by the plaintif contained no fewer than 207 entries of sums due, with eleven only of cash paid on account.

   Mr. MILLER, after referring to a summons recently issue by the plaintiff against the defendant, for $96, in the Civil Summary Court [see 15th Jung above] when he was told he could not split his claim but must sue for the whole amount in the Supreme Court, went on to say that the transactions in question began before the time stated in the petition, but that the sum claimed was the balance due at that time.  The defendant had been supplied with correct statements of account, and in response to his application, the plain tiff had filed all his books, &c., in Court, and they had since been open for the defendant's inspection.

   The COURT was of opinion that it would have been sufficient to have produced the books now.

   Me. MILLER said it was thought better to file them, and so give the defendant every opportunity of satisfying himself of the justice of the claim, and they were now in Court.  A lengthy bill of particulars had also been furnished him, and it was plain he knew something about it by his having paid several sums on account.

   The COURT - Did he board with the plaintiff>

   Plaintiff said no.

   Mr. MILLER went on to say that the plaintiff held a license for a second-class house, from the Municipal Council, which was countersigned by his Consul.

   The COURT, in order to save time, would call the Counsel's attention to what were known as the Tippling Acts, which seemed to apply to the present case.  It would be a waste of time to go on further, if the court should be of opinion that those Acts applied and prevented the plaintiff from recovering.

   Mr. MILLER said, the plaintiff was a Swede that the Tippling g Act, being a British Statue, did not affect a Swedish subject, and that therefore, for the purposes of this suit, his public house must be taken to be part of Sweden, and subject to the laws of Sweden.

   The COURT - the question is, now what laws this plaintiff would be amendable to, but to what the defendant is.  He being a British subject, what law but the English, could be out in force against him?

   Mr. MILLER - The law of debt.

   The COURT - That may vary in different states.  The question is, what law can I enforce here?  Evidently only the English law.

   Mr. MILLER would call the Court's attention to the 5th Section of the Order in Council, and the Title, with the 2nd and 6th sectioned of the Tippling Act.  It would be seen that there was not one word about China in either of them.

   The COURT said nor was there in any of the Acts of Parliament that were daily applied and enforced here in cases against British subjects.  The 5th section of the Order in Council distinctly provided that the statue law of England was to be administered here subject to the provisions of the Order, as far as circumstances per mitted; and the 12th Section of the tippling Act was a portion of such law, and there was no reason why it should be inapplicable here.

   Mr. MILLER said, in his opinion the 12th Section came just after the 2nd, and that the 2nd pervaded the Act through.  As to the Tippling Act applying or not here, take the Stamp Act for example - that did not apply here, and it was clear that both that Act and the Tippling Act were intended for the purpose of raising revenue, and could not apply here.

   The COURT - Only one portion of the Tippling Act was intended for the raising of revenue.

   Mr. MILLER - But you cannot pick out small portions of it; it must be taken as it stands.  After reading the title of the Act, Mr. Miller said he contended that no portion of the Act applied to any transaction in Shanghai.

   The COURT said that what the Tippling Act was designed to do, was partly to prevent drinking to excess amongst the lower classes, and partly top provide revenue.  It could not be said that the first provision was one which was not properly applicable here.  The mischief existed here as it did at home; the particulars appended to the petition in the present case amply proved it.

   Mr. MILLER said that at the timer the debt was contracted, it was contracted bona fide, and that the law of Sweden made it a good debt, because the defendant had not shown it not to be so.  He had paid instalments on the debt, and therefore acknowledged it.

   The COURT said it would take note of the objections raised by Mr. Miller, - 1st, that the plaintiff was a Swede; 2nd, that the Tippling g Act did not extend to China.

   Mr. MILLER said there was also the fact that the 6th section pointed out the powers, &c., given b y the law of Excise, with regard to these duties.  There were n o Excise laws our here.

   The COURT repeated that the whole thing came under the 12th section.

   Mr. MILLER contended that under the 5th Order in Council, and in conformity with the common Law, the Rules of Enquiry, the Statute Law, and other law for the time being in force in England, that the debt was a good debt, and that it was for the defendant to show that it was a bad debt.  An American suing in that Court would have the same right.   The place where the debt was contracted, must be regarded as Sweden; that was, as he had before said, for the purposes of the debt.

   The COURT - I have already said that what I have to look to is the law of the defendant.  He is a British subject, and the only law that can be enforced against him is British law.  So, if a case arose against Westermark, the only law that he owes allegiance to, and that could be enforced against him, is Swedish law - not the law of each individual plaintiff who might from time to time sue him.

   Mr. MILLER referred to a recent similar case against the present defendant, heard in the Civil Summary Court, in which judgment was given against him. [See 27th May]

   The Court directed the record to be fetched, and found tribal the defendant did not appear to dispute his indebtedness, and therefore judgment went very much by default.  The Court, under those circumstances did not think it was incumbent upon it to enquire that the items were for.  It might have been that he was boarding with the plaintiff.  The amounts might all have been over 20s.  Here it was different, the defendant disputed his liability, and the Court could not avoid being informed by the particulars appended to the petition of the nature of the claim.
   The COURT then went on to again refer to the objections, and said it could not see that the Tippling Act did not refer to China.  Tippling was a very common thing here; and if the Court did not consider that the Act did apply here, it would be difficult indeed to say what Acts did apply here within the meaning of the 5th section of the Order in Council.  The Court must deal with each Act as it found it, and added that, if the Counsel's objection that the Tippling Act did  not apply was correct, it would be very hard to say why any Act shield be treated as applying.

   Plaintiff was then s worn, and deposed that the word "refreshments" in the bill, meant drinks of brandy, whiskey, beer, claret, "kummilo," lemonade, &c., &c., at eight drinks for a dollar.  He did not keep a separate account of the lemonade drank. Some of the items might be for lemonade alone, without spirits or wines mixed with it.

   Defendant admitted that he had at time s taken lemonade alone, but could not say how often or how much.

   The COURT said that unless the spirits were supplied to the amount of 20s. at a time, or the wines in as much as a quart at a time, the plaintiff could not recover.

   It was impossible to prove that this had been the case, but the plaintiff said the defendant had at time had a dozen of lemonade and a quantity of brandy, to take away to his boat.

   The COURT thought the bill had better be left with it, and it would endeavour to find out what items the plaintiff could recover for. There was no doubt the defendant was morally bound to pay for all that he had had. (To defendant) - Why do you not pay this account?

   Defendant said he thought he had paid enough.

   The COURT - You are hardly in a position to say that you have not had these things from plaintiff.

   Defendant - There are charges made for things at times when I was not there.

   The COURT asked the defendant to give dates.

   Defendant looked through the bill for some time, and could only say that in some instances there were a greater number of consecutive days charged for in one or two months, than he knew he was in Shanghai.

   It here transpired that defendant had paid $50 into Court, as being in his opinion all he owed the plaintiff, but that he had since offered to increase that amount to $75.

   Mr. MILLER said n either he nor the plaintiff was aware of the defendant having paid anything into Court.  No notice had been given to them of it.

   The COURT said there could be very little doubt the things were had by the defendant, and was very sorry the plaintiff should be the victim, but under the English Acts of Parliament, the Court would be bound to decide against him on by far the higher number of the items.  Plaintiff ought not to give credit, and one good thing the cause would so, would perhaps, be to prevent much of this kind of tippling in future, and thus save people's health and pockets.  The Court would look at the account, and would set the amounts already paid against the irrecoverable items, and would only repeat that the most honourable and proper course for the defendant would be to pay for what he had had.

   Mr. MILLER said the Court would perhaps let him know before making any order.

   The COURT said it could not do so.

   After the hearing, the plaintiff accepted the $75 that the defendant had offered.

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