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Colonial Cases

Tsin Ching-dung v. Lazarus, 1881

Tsin Ching-dung v. Lazarus

Supreme Court of China and Japan

Mowat ACJ, 8 June 1881

Source: North China Herald, 17 June 1881


 

LAW REPORTS.

H.M.'s SUPREME COURT.

Shanghai, 8th June 1881

Before R. A. MOWAT, Esq., Acting Chief Justice.

10th June.

TSIN CHING-DONG and WEI FU-TSZ v. HENRY LAZARUS.

  Mr. W. V. DRUMMOND appeared for the plaintiffs.

 Mr. R. E. WAINEWRIGHT appeared for the defendant.

  This was an action instituted this morning to recover Tls. 5,550, balance of account.

  The petition of Tsin Ching-dung and Wei Fu-tsz, the above named plaintiffs, shows as follows:

- The plaintiffs are Chinese subjects and carry on the trade of builders at Shanghai.

- The defendant is a British subject and has been trading as a merchant at Shanghai.

- The plaintiffs have been employed by the defendant to erect certain large buildings used as a tannery situate on the Pootung side of the Whangpoo River and nearly opposite Shanghai aforesaid, and to make certain roads, lengthen a wharf and build certain walls, and do other work and provide materials for the said buildings, wharf, walls, etc., at the said tannery.

- The defendant has paid to the plaintiffs sums of money from time to time for the work and labour done and materials provided by them.

- There is a balance due to the plaintiffs by the defendant of Tls. 5,550 Shanghai Sycee or thereabouts, including a sum of Tls. 409 or thereabouts for interest as agreed between the plaintiffs and defendant.

- The plaintiff Tsin Ching-dung frequently applied to the defendant for payment of the monies due to the plaintiff, but though the defendant has frequently acknowledged his indebtedness to the plaintiffs and has promised to pay, yet he has neglected and failed to pay, and is still indebted to the plaintiffs as aforesaid.

-The plaintiff Tsin Ching-dung was informed by the defendant on or about the 6th instant that he, the defendant, was intending to proceed to England by the mail about to leave Shanghai on the morning of the 11th instant, and would endeavour to obtain the necessary monies for the payment of the plaintiff's claim from his, the defendant's father.

The plaintiffs claim the said sum of Tls. 5,550 Shanghai Sycee.

  The plaintiffs therefore pray:-

That the defendant may be ordered to pay to the plaintiffs the said sum of Tls.  5,550 Shanghai Sycee.

- That the defendant may be held to bail compelled to return within the jurisdiction of this Court or ordered to bring into Court such security for the performance of any decree or order to be made herein and for costs and fees as to the Court seem just.

-That the defendant may be ordered to pay the costs of this suit.

- That the plaintiffs may have such other or further relief as the nature of the case may require.

Defendant's answer to the foregoing petition was as follows:

He admits all the allegations contained in the petition and consents to a judgment being entered against him forthwith for the whole amount of the plaintiff's claim.

- He, the defendant, besides his clothes and personal effects of small value, has no property whatever in Shanghai or elsewhere save and except the lands and buildings therein known as the Pootung Tannery, near Shanghai, and two lots of tanning materials which are held under advances by banks in Shanghai.  The said tannery, which cost upwards of Tls. 100,000 is (with certain leather in course of manufacture and certain tanning materials on the premises, worth together upwards of Tls. 15,000) already mortgaged for sums amounting to Tls. 72,000 or thereabouts.

- The defendant has already offered to give to the plaintiffs a further charge upon the said tannery and premises to secure their said claim.

...................

In the afternoon, the Plaintiffs, by William Venn Drummond, their Counsel, moved for an order of the Court to hold the defendant to bail and to require of him such security as seemed fit for his remaining within the jurisdiction of the Court, and abiding by and performing any decree or order to be made in the suit of proceeding and for costs and fees.

In support of this motion the following affidavit was filed:

I, William Venn Drummond, Barrister-at-law, and Counsel for the plaintiffs, make oath and say as follows:-

I have been informed and verily believe that the contents of the petition filed this day are true, and that the defendant means to abscond in order to avoid the process of this Court, the information having been given to me by the plaintiff, Tsin Ching-dung, and also by Mr. Thomas W. Kingsmill, who has employed the plaintiffs and is familiar with the circumstances connected with his claim.

  In reply to the foregoing motion and affidavit, defendant makes oath and say, as follows:

- The contents of my answer filed this day to the plaintiffs' petition in this suit are true.

- It is wholly untrue4 that, as alleged in the affidavit of William Venn Drummond, filed in this suit this day, I mean to abscond in order to avoid the process of this Court; on the contrary, I have never had any intention whatever of absconding from Shanghai in order to avoid the process of this Court or for any other purpose.  About a month ago I made up my mind to proceed to my home in England because I thought and still think my doing so would be conducive to my own benefit and to that of my creditors, and from the time that I made so made up my mind I have taken care that my intention should be known to my creditors, and as soon as I was able to do so I informed the first above-name plaintiff and also Thomas W. Kingsmill mentioned in the said affidavit of the said W. V. Drummond of my said  intention.  Moreover, the said T. W. Kingsmill, shortly after his arrival in Shanghai informed me that my father had begged him to urge me to return home as soon as possible.

  The motion was argued by Mr. Drummond and Mr. Wainewright.

  Mr. Drummond called one of the plaintiffs, Tsin Ching-dong, and Mr. T. W. Kingsmill in support of the motion.

  The plaintiff admitted that he was aware some time ago that it was the defendant's intention to go home, and expressed his belief that he did not think he was leaving Shanghai to avoid payment of the present claim.

  Mr. Kingsmill believed the defendant was unable to pay the plaintiffs' claim. He thought there was danger that plaintiffs would not be paid if defendant went away.  Defendant was leaving because he was unable to carry on his business and because his father was anxious for him to return home.

 In reply to Mr. Wainewright, witness said he did not think defendant was going away to avoid the process of the Court.

  At the conclusion of the arguments by Mr. Drummond and Mr. Wainewright for and against the motion, his Lordship reserved his decision, intimating that he would give it at 8 o'clock the following morning. This early hour was fixed in consequence of the mail steamer, by which the defendant had booked as a passenger, being expected to leave early in the morning.

11thy June.

  At 8 o'clock this morning, his Lordship delivered the following

Judgment

  His Lordship, in giving judgment, said - I have every desire to assist the plaintiff, but I can only do so under the conditions prescribed by the Rule.  The Rule requires that I shall be "satisfied by evidence on oath that there is good reason to believe that a defendant means to abscond in order to avoid the process of the Court," and it seems to me that it is impossible so to describe the circumstances connected with the defendant's  intended departure.  He is leaving China for England in pursuance of an intention openly expressed some time before, with the knowledge of all his creditors, and after he had, as he had every reason until the last moments to believe, come to a satisfactory arrangement with this particular creditor.  His reasons, moreover, for leaving - as stated, at the hearing of this application, by the person on whose information the affidavit in support of the application had been filed - are totally different from  what is ascribed to him in the affidavit, and which must have been made out to my satisfaction before the application could be granted.  He further, within an hour after the plaintiffs' petition was served upon him, filed an answer for the amount being entered up against him forthwith.  He has besides, sworn - and it is not pretended that the statement is untrue or inexact - that he has no property whatever beyond certain land and buildings which are already mortgaged, and upon which he has offered and was still willing to give the plaintiff a further charge by way of answering his claim; indeed things had gone so far that a mortgage-deed for that purpose had been in part prepared by his (plaintiffs') solicitor, and it was only at the last moment that the plaintiff, without any communication with the defendant, took these steps in the hope of getting better terms.

  These being the facts of the case, I cannot, without doing violence to language, treat the defendant as "absconding in order to avoid the process of the Court." "Absconding" does not describe the manner of the defendant's departure, and his motive ("in order to") is not shown to be, and I do not believe it is, "to avoid the process of the Court."

  The effect of the defendant leaving China will be that he will thereby withdraw himself from the process of this Court, but if the Rule had been intended to prevent such a step on the part of a debtor, it ought to have been so expressed.  And I am not at liberty, because I might think that it would have been better if the Rule had been so expressed, to read it differently from what its plain terms require that it should be read - for that would be in effect to make a new Rule.

  The application must be refused.

  On Mr. Drummond's application, judgment for the plaintiffs was entered up for the amount claimed, and costs, which were fixed by his Lordship at $210.

  Mr. Wainewright then applied for costs on the motion, expressing the opinion that the proceedings that had been taken against the defendant were unjustifiable.

  His Lordship allowed $40 to the defendant as the costs of the motion, to be deducted from the $210 allowed to plaintiffs.

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