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Colonial Cases

Estate of Fajard, Schaurveker and Co. v. Yang Tai Kee, 1878

[promissory note]

Estate of Fajard, Schaurveker and Co. v. Yang Tai Kee

French Mixed Court, Shanghai
28 December 1878
Source: The North China Herald, 10 January 1879

 

MIXED COURT.

Shanghai, 28th Dec.

Before the Chinese Magistrate CHEN, SUEN CHE-KUEI, Magistrate of the French Mixed Court, J. DE BIELKE, Esq., French Assessor, and P. G. VON MOLLENDORFF, Esq., German Assessor.

Claim for Tls. 35,000.

   This was an action instituted on behalf of the creditors of the estate of the late firm of Fajard, Schaurveker and Co., of Shanghai, against Yang Tai-kee, a Chinese banker, to recover the sum of Tls. 35,000.

   The case had previously been before the Court in a different form, and was referred to the now-sitting Magistrates for final settlement.  The claim was based on a Chinese promissory note couched in terms to the following effect:

Pay to order the sum of Tls. 35,000; 30th day, 11th moon, of the 1st year of Tung-chih,

and stamped with a chop said to be that used by the defendant.  The note was represented to have been given by defendant as an acknowledgment of indebtedness to the amount of Tls. 35,000, for arms and ammunition supplied in 1863 by Messrs. Fajard, Schaurveker and company, to the Imperial Army, defendant being the authorised Commissioner who obtained the supplies for the army.

   In 1866 the firm of Fajard, Schaurveker and Co. failed, with liabilities amounting to about Tls. 90,000, and the arrangement of their affairs devolved upon the French Consular authorities.  In the statement of assets nothing was said about the bill which was the basis of the present action. Mr. E. Fajard was the representative of the firm in Shanghai, and being a native of Strasburg, in Alsace, he had the option, under the treaty made after the Franco-German war, of becoming either a German or a French subject.  At the end of 1873, while the affairs of the firm were still in the hands of the French Consul, Mr. Fajard declared in favour of German nationality; consequently the settlement of the affairs of his firm was transferred from the French to the German Consulate.

   It was only a few months ago that the bill for Tls. 35,000 first came into public notice, and proceedings under it were instituted against Yang Tai-kee in the Mixed Court, and the case was two or three times before Chen, the Chinese Magistrate, and Mr. Mollendorff, the German Assessor.  During these proceedings it transpired that the firm of Fajard, Schaurveker ands Co. were still indebted to French creditors in a greater amount than the Tls. 35,000 sought to be recovered from Yang Tai-kee, and as these debts were incurred anterior to Mr. Fajard becoming a German subject, the bill was handed over by the German Consul to the French Consul for it to be realised in the interests of the French creditors.   The validity of the bill had to be tested in the Mixed Court, and the case came on for hearing to-day.  Mr. J. de Bielke sat in the interest of the French creditors, Mr. Mollendorff in the interests of Mr. Fajard, as a German subject, while Chen, the Chinese Magistrate of the court, was allowed the assistance of Suen Che-kuei, the Magistrate of the Mixed Court in the French Concession.

   It was said that the defendant, Yang Tai-kee, was now dead, and he was represented by his son and two partners in business.  Mr. Millot, as the agent of the late firm of Messrs. Heitz and Feveze, who still have a claim of something like Tls. 29,000 against the estate of Messrs. Fajard, Schaurveker and Co., was present on behalf of the creditors.  Mr. Fajard, it was said, had been told the case was to be heard to-day, but he was not in attendance.  The proceedings were conducted in French and Chinese.

   On behalf of the defendant it was urged that the chop on the bill was not the one used by him; his was an oblong chop, and the one on the bill was a square one.  It was also pointed out that the bill was dated on a day that did not exist in the Chinese calendar.  It was dated the 30th day of the 11th moon of the 1st year of Tung-chih, whereas in reality there were only 29 days in that particular month; and Yang Tai-kee, it was contended, would never make a mistake of that kind on such an important document.  It was also explained that the 30th day of the 11th moon could not have been mistaken for the 1st day of the 12th moon, as the 1st day of each moon in war times was set apart for religious ceremonies.  Defendant's books were also produced and examined, and they contained no entry to correspond with the bill; and it was also explained that of a transaction involving the expenditure of Tls. 35,000 for arms and ammunition there would be some record of it at the Taotai's yamen; and if the bill was a true one they thought it would have been presented for payment long before it was.

 

   Mr. MILLOT explained that at the time of the failure of Messrs. Fajard, Schaurveker and Co., no mention was made of the bill, and in the interests of his principals and the creditors generally, he thought it only right that its value should be determined by the Court, and especially so as Mr. Fajard was expected to leave shortly for home, and might tell his creditors there that he had left a bill in Shanghai for Tls. 35,000.

   The COURT decided that the evidence was in favour of the defendant, and that there were no grounds on which the creditors could sustain the claim against him.

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