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Colonial Cases

Brown v. Schofield, 1884

[succession]


Brown v. Schofield

Summary Court, Shanghai

Mowat, 21 January 1884

Source: North China Herald, 24 January 1884

LAW REPORTS.
H.B.M.'s SUMMARY COURT.
Shanghai, 21st January.
Before R. A. Mowat, Esq., Assistant Judge.
 Richard Schofield, executor to the estate of the late George Harrison, was summoned by Captain J. Brown to answer a claim of Tls. 50 allege to have been lent by the plaintiff to the said George Harrison, together with interest for 5 1/2 months.
  The Defendant denied the indebtedness, and alleged that the Tls. 50 alluded to was paid by the plaintiff to Mr. Harrison in consideration of the latter having obtained for him the pilotage of a Russian war vessel.
  The Plaintiff said he had lent Tls. 50 to Mr. Harrison on the 22nd June last.  He produced two letters in Mr. Harrison's handwriting in which the payment of Tls. 50 was referred to; the letters did not, however, state whether this sum was a loan or a payment for services rendered.  He denied that he had paid the money for services rendered by the deceased and said that the pilotage of the Russian steamer in question had been obtained for him not by Mr. Harrison but by Mr. McCappin, pilot.
  Francis Canter, Master Mariner, said he remembered McCappin coming to him and saying "I wish I could find Brown; I want him to take out that Russian steamer.  I can't take it out myself because I have got another engagement, and I want to get the job for him." Witness believed that McCappin afterwards met Captain Brown at Harrison's, and gave him the job.
  The Plaintiff said he was unable to call Mr. McCappin as a witness, as he was away from Shanghai and would not be back for eight days.
An A-Ling was then called as a witness for the defence.  He said he was formerly in the employ of Mr. Harrison, and her remembered McCappin coming into Harrison's shop and saying that a Russian steamer wanted to go to Hankow, and he wanted a pilot for her.  Mr. Harrison then sent witness with a note for Captain Brown; but he could not find him, and when he returned to the shop Mr. Brown and Mr. McCappin were both there.  Subsequently witness went to Captain Brown to collect a small account due to Mr. Harrison, and Captain Brown said he had only got Tls. 250 out of the job, and he was very sorry to have had to pay 20 per cent of it to Harrison.
 The Plaintiff asked the witness if he (plaintiff) did not say that he was taking out the Tls. 50 which Harrison owed him in stores.
  The witness denied this.
  His Honour asked Mr. Schofield whether from what he knew of the deceased's affairs he believed Harrison need to borrow Tls. 50 at that time.
  Mr. Schofield said he did not believe Harrison had any occasion to borrow that sum.
  His Lordship then said -  I do not require to decide in this case whether, as a fact, you lent Harrison this money or not - whether it was a loan, according to your statement, or whether,  according to the defendant's statement, it was a payment made by you in respect to some services he had rendered to you.  I have not that to decide; but I am going to decide the case on this broad and simple ground - that if claims are made against persons who are dead there must be satisfactory evidence of the justness of the claim, beyond the mere statement of the person who makes the claim.  I have no evidence except your own. I do not say that your story is not true, but it is not evidence which it would be safe for a Court to act upon.  When once a man is dead, any one can come forward and say so-and-so lent him Tls. 50 or Tls. 500, and to accept a mere statement of that kind would never do.  That is why I say that in this case, as in all other cases, there must be corroborative evidence of the claim.  Now corroborative evidence of your claim I have none, except the letters, in which he writes "kindly send the Tls. 50"; but that may mean either "the Tls. 50 which you have to pay me for getting you the job," or "the Tls. 50 which you promised to lend me."  I have no reason to assume that one or the other is true - at least I do not require to say which is the more likely.  It was your business to get from him an explicit acknowledgment of the loan and the interest which you were to receive upon it, and since you did not do that, now that he is dead I cannot assist you.  If he were here and admitted the claim it would be simple enough; if he were here and did not admit it, I should decide which version was true, and I should probably then say what I now say - that if you lend Tls. 50 to a man you ought to get an acknowledgment for it.  You have not got an acknowledgment, and I must decide against the man who has not got the proof which it was in his power to get; and I must assume against you that he would deny the claim, and certainly not against the defendant that he would admit it.  You ought to have got an acknowledgment of the Tls. 50.
  Plaintiff - I did not know the man was going to die so soon, your Honour.
  His Honour - Very well, that is the risk you run.  Judgment for the defendant.

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