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Colonial Cases

Smith v. Halket, 1878


Smith v. Halket

Supreme Court for China and Japan
French C.J., 20 November 1878
Source: The North china Herald, 28 November 1878




Shanghai, 20th Nov.

Before G. FRENCH, Esq. Chief Judge.


   This was an appeal fro a decision of R. A. Mowat, Esq., in the Civil Summary Court.

   From the proceedings in the lower Court, it appeared that the appellant, who is chief clerk and Judge's private secretary in H.M.'s Supreme Court, had boarded, since April last, at the respondent's house, No. 9, Canton Road, and she claimed $23 the balance due for board for the month of October, appellant having paid $7.  Appellant ceased to board at the respondent's house on the 4th October, and according to the respondent's evidence he left on his own account.  The appellant, however,  asserted that he left in consequence of an expression used to him by the respondent, which he considered justified his leaving as he did.  The parties differed in their evidence as to the expression used, but it transpired that the respondent, in a letter to the appellant, expressed her sorrow that "a remark made by her in fun should have hurt his feelings."  The appellant had destroyed the letter, but it was quoted by the respondent, and his Honour considered it a fair apology.  His Honour gave a verdict for the amount claimed with costs, and against this the present appeal was entered.

   Originally the appeal was set down for hearing on the 18th inst. but his Lordship adjourned it until to-day  for Miss LaIsun and Messrs. Wilmer Harris and James Macbeth, who were present and heard the expression which the appellant  said caused him to cease attending the mess, to be summoned to give evidence, and they were now in attendance.

   WILMER HARRIS was first called, and, in answer to the appellant, he deposed - I remember Friday, the  4th October last, and on the evening of that day I r member being at dinner at the respondent's house, No. 9, Canton Road.  The party consisted of the respondent, Miss Laisun,  Mr. McBeth,  yourself and myself.  I remember the respondent using an expression towards you, and to the best of my recollection and belief it was in these words "Oh, Mr. Smith, what a story you told," and it was  said in a laughing and joking way, and no person in his sane senses could possibly take offence at it.  The whole of the conversation had been with laughing and joking, and I never thought you could take offence at an expression like that.  I remember the reply you made.  It was, to the best of my belief, in these words "It is the first duty of a gentleman to hold his tongue," and you said it in a  way which showed that you had lost your temper.  I am on my oath, and will swear that those were the expressions used.  I will swear that the respondent did not make use of the words "deliberate falsehood."

   By his LORDSHIP - I am quite clear on that point.  I am, my Lord, a mercantile assistant in the house of Messrs. Lane, Crawford and Co.

   By the APPELLANT. - You may have said something else besides "It is the first duty of a gentlemen  to hold his tongue," but you lost your temper and I don't remember the exact terms you used.  You have made the matter the subject of public discussion yourself, and I have discussed it with many people.  We have talked it over also at the table, but I do not  remember any particular time when I discussed it privately with Mrs. Halket.

   By his LORDSHIP - Something else was  said besides the two expression s I have given, both by Mr. Smith and Mrs. Halket, but it was all in a laughing and joking tone, and I did not take particular notice.

   JAMES MCBETH, examined by the appellant, deposed - I am correspondent in Frazar and Co., and board at Mrs. Halket's house.  I only remember indistinctly the expression Mrs. Halket used towards you.  So far as my memory goes it was, "Oh, what a story you told, Mr. Smith."  The conversation that led up to it had reference to your connection with the Courts.  It was something about a man and his wife having a trial and  you knew nothing about it, and you were piqued because you were not posed as to what was going on and you got sulky and lost your  temper.  To the best of my knowledge and believed Mrs. Halket  did not make use of the expression "deliberate falsehood."  I will swear most distinctly that she did not use that expression.

   By his LORDSHIP - The spirit of the conversation was of the best - we were laughing and joking all the time - I did not think any offence was intended or would be taken.

   Miss A. LAISUN was the next witness - In answer to the appellant she  said - The expression used by Mrs. Halket was "Oh Mr. Smith, what a story you told."  I am quite sure those were the words, and Mrs. Halket  did not make use of the term "deliberate falsehood."  I do not remember what your reply to Mrs. Halket was.

   The APPELLANT pointed out that in Mrs. Halket's own evidence in the Court below her language was such as to lead to the strong inference that she did apply to him the term "deliberate falsehood."  Mrs. Halket said in her evidence that his (appellant's) reply to her was "I am not in the habit of telling falsehoods," from which it was to be inferred that she had used the  word  falsehood first, otherwise hew would not have used it.  He was sure she did use the expression "deliberate falsehood," which was the cause of his ceasing to attend the mess, and having been insulted he thought he had a right to leave.

   His LORDSHIP said he agreed with the appellant on that point. A lady keeping a boarding house and choosing to sit at the table, was bound to use courteous language, and if she did use a strong expression like "deliberate falsehood" to one of her boarders, that was,  of course, accusing him of telling falsehoods, and even if there was a contract to pay $30 a month, he did not think the boarder was bound to sit at her table any longer.

   That was his view, but the evidence showed that the respondent did not use language as bad as that, but on the contrary it went to show that she said nothing calculated to insult or give offence.  The appellant might have taken the expression used to be offensive, but having regard to the evidence given by the three witnesses who had just been examined, and having regard to the judgment of the Court below, in which Mr. Mowat decided in favour of the plaintiff, he was afraid the judgment of the court below must stand.

   The APPELLANT repeated that the inference from his admitted reply to Mrs. Halket was that she used the word "falsehood," and he regretted to have to say that the three witnesses who had been called had not spoken the truth.

   His LORDSHIP said In Courts of Justice the judge had to decide by the weight of evidence,  and the w eight of evidence was against the Appellant.

   The APPELLANT considered it useless to argue any further against the evidence that had been given.

   His LORDSHIP said that, as he had before remarked, if the lady of the boarding house had behaved in an unbecoming way, he should have held that she was not entitled to recover for the whole month's board; but the evidence showed  that she did not act in an unbecoming way.  The appellant had paid her what he himself considered to be her due, but the question was whether she was not entitled to $23 more.  He thought she was.

   It seemed to his Lordship that there was a monthly contract for board - the appellant did not pay day by day, and if he dined our every night, he supposed he would have to pay the $30 a month just the same.  Under the circumstances he had mentioned, the judgment of the Court below would stand.

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