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Colonial Cases

Lee Chin-Yu v. Holmes, 1882

Lee Chin-Yu v. Holmes

United States Consular Court, Shanghai

Denny, 16 February 1882

Source: North China Herald, 1 March 1882

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 16th February.

Before O. N. DENNY, Esq., Consul-General, Acting Judicially.

LEE CHIN-YU v. M. G. HOLMES.

  This was a claim for Tls. 10,000.

  The plaintiff appeared personally; the defendant did not appear and filed no answer.

  The main points of the plaintiff's petition, which was long and rambling, set forth:-

  The plaintiff Lee Chin-yu humbly sheweth that he is a subject of China and that the defendant is a citizen of the United States.

 That in the year 1868 the petitioner entered into co-partnership with Ko How-san and M. G. Holmes to carry in business under the firm of Tsingmee in Shanghai, Chefoo and Tientsin.  That at the end of the year 1869 a settlement of business was made and a net profit of Tls. 17,600 was declared and the said profit was then divided according to the three partners' interest in the concern, the defendant receiving Tls. 3,520.

 That while doing business the firm bought the steamer Dragon for $85,000, leaving a balance of $40,000 due to the seller who was to hold a lien on the steamer at the rate of 10 per cent interest per annum.

 That in the year 1869 the firm consigned the steamer to Messrs. Jardine, Matheson and Co. After arranging to hypothecate the vessel to them, they advancing to the firm the balance of the cost.  In the spring of the year 1870 Messrs. Jardine, Matheson and Co. notified to the firm that they would only advance Tls. 30,000 on the vessel. The firm being unable to pay the difference, after consultation with Mr. Tong King-sing the petitioner took upon himself to reduce the mortgage to Tls. 23,000.  At that time there was a credit balance of the working of the steamer of Tls. 2,525 in the hands of Messrs. Jardine, Matheson & Co. and consequently the petitioner had to raise upon his own responsibility the sum of Tls. 7,475.

 That in the spring of 1881, whilst the petitioner was at his native place, Ko Kow San and M. G. Holmes sued and arrested the petitioner, cast him into prison and kept him there for six months without bringing the case for trial.  The case was afterwards tried at the Mixed Court, when the firm was found to be indebted to the petitioner in the sum of Tls. 12,000.

 This sum of Tls. 12,000 due to the petitioner is exclusive of the amount paid to reduce the mortgage.  Ko Kow San and M. G. Holmes stuck to the mortgage as being Tls. 40,000 and declared the same before the U.S. Consul who then decided that the petitioner had better recover what he had paid on account of the mortgage to Messrs. Jardine, Matheson & Co. and then if there should be any difference Ko Kow-san was to settled it.

 That M. G. Holmes knowing that he was in the wrong sent a friend named Chun  Yu-ting to the prison, and informed the petitioner that what had been done was altogether through the instigation of Ko Kow-san; that he did not wish to go on litigating but promised to advise Ho Kow-san to pay the petitioner's claim.  M. G. Holmes has returned to America, and the petitioner has had to apply to Mr. Toing King-sing for the return of the money.

 That Mr. Tong King-sing (who had possession of Messrs. Jardine, Matheson & Co. s receipt) informed the petitioner that he had lost the receipt and promised to take steps towards the recovery of the money as he was satisfied that the money belonged to the petitioner but through press of business he had not carried out his intention, so the matter was delayed until 1874.

 That Messrs. Jardine, Matheson and Co., seeing that M. HG. Holmes only threw the responsibility on Ko Kow-san, would not consent to the payment of the money in their hands to the petitioner unless the release was mad by the different authorities.

 That your petitioner was a partner in the firm and all debts and accounts thereof have been wound up by him whether M. G. Holmes is a party to it or not.

 That the documents laid before the Mixed Court prove that a balance of Tls. 10,000 is due to the petitioner.

 The petitioner comes now before the Court with a list of assets and liabilities on account of the co-partnership which had passed through his hands and prays that a decree may be entered by this honourable Court dissolving the partnership and declaring what, if any, interest M. G. Holmes had in, and to the proceeds arising from, the adjustment of accounts and especially to the funds now in the hands of Messrs. Jardine, Matheson & Co. to the end that the said company may pay over the same funds now in their hands to the lawful claimant and for such other further relief as the Court may think fit.

 To the petition was appended a statement of accounts in connection with the partnership by which it appeared that the assets amounted to Tls. 2,199.7.9.7 and the liabilities to Tls. 17, 151.650.  An extra schedule showed by way of assets a sum of Tls. 7,475 exclusive of interest in the hands of Messrs. Jardine, Matheson and Co. and liabilities amounting to Tls. 7.775.

 The plaintiff was examined by the Court and deposed to the main facts stated in the petition.

 His Honour said the question for him to decide was the interest or responsibility of the defendant in the affairs of the partnership. Before he could give judgment he would require the testimony of Tong King-sing.

The Plaintiff said Mr. Tong King-sing was absent from Shanghai but would return about Sunday or Monday next.

His Honour said he would adjourn the case until Tuesday next, 21st inst., on which date he would require the testimony of Mr. Tong King-sing.

21st February, 1882.

  The following copy of an agreement was filed by the petitioner:-

 The undersigned having been connected together in business at Chefoo and Shanghai for a number of years and the ownership of certain  real estate at Chefoo, registered in the name of Ching May Yang Lang and other property and liabilities not heretofore been distinctly defined or settled by us, we do now mutually agree to the following in regard thereto:

 First: - That all lands and the buildings thereon at Chefoo, Province of Shangtung,  China, registered in the name of Ching May-yang-hang belong exclusively to Kow Ku-san, his heirs and assignees and that M. G. Holmes has no part or interest therein.

 Second: - That the steamer Dragon, together with her appurtenances, profits and losses is the exclusive property of Ko Kow-san, M.G. Holmes having no right, interest or responsibility therein.

 Third:- that the joint debts of taels five thousand bearing compound interest at twelve per cent per annum due Rev. T. P. Crawford of Tung Chow China shall be assumed by Kow Ku san and assigns the said M. G. Holmes being exempt from all responsibility in regard to the same.

(Signed) M. G. Holmes.

(Signed) Kow Ku San.

Witness - T. P. Crawford.

Recorded in the United States Vice-Consulate this fifth day of June, 1874.

(Signed) W. A. Cornable, Vice Consul.

 Tong King-sing deposed to having been acquainted with the Chin Lee Hong.  He knew of the mortgage of the Dragon to Messrs. Jardine, Matheson and Co. and also that the firm were in difficulties which eventually lead to the dissolution of the partnership.  He said he had always understood that M. G. Holmes was only a paid partner and that he had never had any share in the business.  He gave his evidence at great length and stated all he remembered of the debts and accounts of the firm.

 Le Chin Yu re-examined:- said the partnership was dissolved in 1870, in the Chinese 4th moon.

 His Honour said he would take the matter into consideration and would render judgment at some future day.

 

North China Herald, 15 March 1882

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 10th March, 1882.

Before O. N. Denny, Esq., Consul General, Acting Judicially.

LEE CHIN-YU v. M. G. HOLMES.

  The Court opened at 2 p.m.  Both plaintiff and defendant failed to appear and were neither of them represented by Counsel.

  His Honour gave the following

  Judgment:-

 It appears from the petition of Lee Chin-yu that he, Kow-ku-san and Mr. M. G. Holmes, the last named being an American citizen, in the year 1869, entered into co-partnership under the firm name of Tsing Mee to carry on business at Shanghai, Chefoo and Tientsin, that they continued in business at Shanghai as partners until the year 1869 when an accounting was had and the net profits of the business divided according to their respective interests.  That during the partnership, and to facilitate business, the firm purchased the steam Dragon for Tls. 63,760, paying Tls. 23,750 on delivery and securing the balance of Tls. 40,000 by a mortgage on the said vessel.  That in 1869 the steamer was consigned to Jardine, Matheson and Co. of Shanghai after arranging with them to assume the said mortgage of Tls. 40,000.

 That subsequently Jardine, Matheson and Co. notified the firm that they would only advance Tls. 30,000.  That the firm being unable to make up the difference, the petitioner took it upon himself to do so. There being at threw time only Tls. 2,525 in the hands of the Agent, earnings of the steamer, petitioner had to borrow Tls. 7,475 to make up the difference of Tls. 10,000, which he did.

 That when the steamer was sold and her affairs closed up, there was a credit to this account of about the sum paid in by the petitioner; but as the money had been deposited in the hands of Holmes and Co., Jardine Matheson and Co., refused to pay it over to the petitioner without first being satisfied that M. G. Holmes had no interest in it. To determine this interest is the subject of the present enquiry.  Monday the 16th day of February last at 10 a.m. was the day fixed for hearing the matters set forth in this petition and the case came on accordingly. The petitioner appeared in his own proper person; but the defendant failed to appear either in person or by attorney, neither did he file any answer to the petition.  Notwithstanding it appeared that defendant had been regularly served with a copy of the petition and summons in accordance with the decree of the U.S. Minister dated 26th May, 1881, providing for the service of summons on absent defendants.

 The petitioner being sworn, supported the allegations of the petition. He also put in evidence a memorandum signed by the said M. G. Holmes and Kow-Ku-San, which was duly authenticated, witnessed and dated Sept. 27th, 1881, wherein the said Holmes stated that the steamer Dragon together with her appurtenances, profits, and losses is the exclusive property of Kow-Ku-San and that M. G. Holmes has no right, interest, or responsibility therein. While Holmes states in this memorandum that he has no interest in the streamer or her business he says also that both are the property of Kow-Ku-san.  

 On the other hand the petitioner in a reasonable way shows his claim to the money in question, which is also supported by the testimony of Mr. Tong King-sing. 

 With the merits, however, of these claims the Court has nothing to do.  For, as Kow Ku-San and the petitioner are Chinese subjects, their disputes must be settled elsewhere.  Neither are such questions material to the issue.  The only one for determination  being what interest, if any, has M. G. Holmes to the property in dispute, and upon this point what he has said himself must be taken to be conclusive.

 I accordingly find that as M. G. Holmes has no interest in the steamer Dragon or her business after his retirement from the s aid co-partnership he has no claim or interest in the money now in the possession of Jardine, Matheson and Co., received by them for account of the said steamer Dragon and credited to the firm of Holmes and Co.

(Sd.) O. N. Denny, Consul-General, Actg. Judicially.

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