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Colonial Cases

R v. Benjamin [1884]

misappropriating goods

Supreme Court for China

Shanghai, 9 and 10 June 1884

Source: Supreme Court of China (Shanghai), Judges' Notebooks, Vol. 3 (1880-1893), The National Archives (U.K.), FO1092: 340, p 35

 

Regina v. Benjamin David Benjamin

Charge - Misappropriating goods confided to his safe-keeping.

Plea - Not Guilty.

Jury, sworn.  J. J. Miller, A. C. Wintall, A. Algar, W. Carr, J. L.  McClean.

Mr. Wilkinson & Mr. Mayburgh for the prosecution.

Mr. Wainwright for defence.

[36]

Mr. Wilkinson opens case for prosecution;

 Find 4 Counts under section 75, 5 & 6 under Section 76.

Mr. Wilkinson calls,

Raymond Elias [Zorg], sworn according to Jewish custom.  I was born in Baghdad as a Turkish subject.  I know the accused.  I have known no other person of the same name in Shanghai.

EX. A (1) Mr. Wilkinson put in certificate of the Consul General that B. D. Benjamin is Registered British Subject.)  I am a broker.  I have sometimes obtained comns from Prisoner.  The reason [37] for this was that Prisoner could not obtain advances on his own goods in his own godowns and so he asked me to take the  [loan?] for him.  I have done so on several occasions.  I first did so about a year and a half ago.  I know the document show me.  Ex. B (2)

[Quarterly] account from Shaw's Godown.  Prisoners [???????].  My signature is on the back.  The Moncrieffe whose signature is on the back was the [godown] agent [?????????] by Prisoner.  He was then in Benjamin's service [38] but has now disappeared.  I have not seen him since the 12th or 13th of last month.  The Russian Oil mentioned in Ex 2 belonged to prisoner and he asked me to obtain loans on it from the bank.  I think No. 2 was first given to French Bk for a loan to Prisoner & subsequently in [Septr] French Bank claimed repayment of Loan.  I then went to Prisoner & told him that French Bank called in loan and I then negotiated fresh loan on the same evening at Prisoner's request [39] with the H & S Bk.  There were 52,000 cases of oil altogether of which the 10,000 mentioned in the [warrant] formed a part.  There were similar warrants for the other goods. I got the warrant from Mr. Moncrieffe who made out [also] the warrant for Prisoner.  The loan from the HK Bank was upon the whole 52,000 cases and some lead.  The  same goods had been {securing] to the French Bank.  I got the warrants from Moncrieffe [40] who brought them to me in accordance with an arrangement I had made with Prisoner & by Prisoner's instructions.

   Prisoner saw No. 2 when I took it from French Bank to HK Bank.  I brought it to his office with my own hands.  I told him the French Bank wanted the money back and I then went to HK Bank and arranged the loan and informed Prisoner. Besides the 52,000 cases of oil there was more oil in the godown belonging to prisoner on which I [41] also obtained a loan for Prisoner from HK Bank.  I do not know that had become of the oil mentioned in No. 2.  In the ordinary course that oil, [?????????????] as [???] was, was sold. Moncrieffe under instructions from Prisoner [??????] the sale produced the purchase money and got delivery order an order releasing the oil from H Bank.  All the particulars [???] of oil 52,000 cases and more was a [??????] of [???????] 10,000 cases.  Neither the prisoner nor Moncrieffe had accounted to me for these 10,000 cases [42] and they are not now in the godown.  I cannot swear to it but I believe they were there when I obtained a loan from the HK Bk.  I would not have obtained the loan unless I had believed they were there.  I was present on second occasion when Moncrieffe spoke to Prisoner about the oil.  The Bank was pressing me to square off the account.   I had certain conversations with Moncrieffe & had an interview with prisoner on the subject.  Moncrieffe was present.  It was at Prisoner's house in Canton Road. [43]

   That was the first [comment[ I had about the missing of the oil.  Moncrieffe brought me a message from Prisoner and he and I went to prisoner together. That was about end of April, about 7 in the Evg.  Moncrieffe came & told me Prisoner wanted to see me.  We saw Prisoner alone in his room.  He said the oil was sold that he was sorry he had done it but that he required [44] the money to pay the Agra Bank. He had told Moncrieffe to sell the oil as the Agra Bk was pressing him.  They had sold about Tls20,000 worth.  They had [paid] about Tls 8,000 to the HK Bank through [him] and there was a deficit of Tls. 12,000 and he [expected] in a short time to pay off the whole balance.

   I left the room with Moncrieffe.  I did not know whether the oil had actually left the godown or not.  When I took money of the Bank that was the only interview I had with Prisoner with regard to the oil being missing but I have had an interview with him with regard to [45] to the sale of the oil about a fortnight before.  I then saw accused & Moncrieffe together and asked Moncrieffe if he had had an offer for the [whole] lot, and why he did not [????] it.  Moncrieffe  made no reply and I then asked prisoner if Moncrieffe  had mentioned the offer to him.  He said no but the reason he did not sell was because he was afraid the [market would go up].  This interview was about the beginning of April.  It was not from Prisoner that I first heard [46] the oil was missing.  I had heard when I came with prisoner at his house that the oil was no longer in the godown.  I did not mention Moncrieffe coming to me and my going with him to Benjamin's at preliminary hearing in consequence of Mr. Mayburgh having refusing to hear me on this point on the grounds of its not being evidence.

XXd by Mr. Wainwright.  I adhere to my statement before the Magistrate as to the Prisoner having had no part in the management of the godown.

   I do not know the 2000 out of the 52,000 came in question were [47] stored in [??????] Godown nor have I any recollection of having drawn Warrant [on ?????] for said oil.  I do not recollect paying for storage at [??????] by a cheque on HK Bk.  There were many other loans on oil & lead besides this particular loan in which I was concerned with the Prisoner & the HK Bk.  I cannot tell when they were closed up.  I do not know whether the last of them was cleared off this year or last year.  The loan on the 52,000 cases oil and some lead was out of the 75,000. [blot.] [48]  I cannot  tell how much I owe the Bank now on that loan, but altogether about Tls 16,000 or Tls 17,000 on oil & lead.

   I refuse to say why I went down to Shaws Godown last winter and removed certain oil from the Godown, and I decline to give any reason.  I have been charged with stealing the oil but the charge [??????]  I was summonsed to this Court & the Court refused to deal with me on the ground that I was not a British subject.  I recd from Moncrieffe  two days after his disappearance by a [49] letter through the LPO two native order for together Tls 480 to release 400 Cases, Warrant 274 10,000 Cases.  Exh. 1.  I have from time to time since the beginning of the year received other sums of money on account of oil from Moncrieffe.  I have Moncrieffe's written request to clear.  I believe  none of them apply to Warrant 274 [???????] the matter of Tls. 480.

12.10.

Adjourned to 1.15.

Returned at 1.15.

XXn resumed.  I have not endeavoured to find Moncrieffe's requests to me.  [50]  All the other loans to that I have referred are from H & S Bk.  [No other] [?????] in my account nor do I myself have any other lending account or warrant for oil.  I adhere to my [statement] made before the Magistrate that all the other oil except what is in Warrant 274 has been accounted for.  The average price of Russian oil during the month of Decr ranged from Tls 1.35 to Tls 1.36 per case.  I was not aware that Moncrieffe was doing business on his own account in oil last year.  I know that he was doing other business in his own account. I mentioned that to Prisoner.  I don't [51] remember his doing any business in oil.  I have heard he was doing business in lead.  HK Bank have refused to transfer 264 shares belonging to me on account of these loans.  At that time my securities exclusive of the shares were [supposed] to show a surplus over my liabilities (I don't recollect the accountant saying he had made a mistake.) 

   The Prisoner owes me money over and above this matter.  Here is the balance of account between us.  I cannot say how much.  I told the Bank that prisoner [52] & Moncrieffe were going to run away.  No other Bank [urged] me to prosecute.

Re-exd by Mr. Wilkinson.

I delivered to the Bank all the monies I recd from Moncrieffe on account of the oil.  I have no interest in the matter & made no entries in my own books in reference to the matter.

To the Jury.  I recd no consideration of any kind in respect of these oil loans.  I have had some transactions with the Prisoner.  I acted as broker and recd commission from the Prisoner.

Louis Charles Balfour, duly sworn. 

Exd by Mr. Mayburgh.  British Subject. [53] Acting Accountant of H & S Bk and in charge of securities.  I have seen this order Ex. 2 before.  It has been in my possession.  It was paid securing against a loan of Tls 75,000 to Mr. Zorg.  It represents 10,000 cases of Russian oil.  Looking at the back of the [document] I find it endorsed to the order of the Bank.  When a loan or part of a loan is paid off the money on advance for security is paid out the Bank and the Bank [releases so many goods].  [54] I have never, until a few days ago, given any order for release of this oil.  Before these proceedings commenced no authority was given to any one to sell or dispose of these goods.  When I went over I only saw about 900 cases.  That was the day we applied for the warrant.  There have been no cases of oil delivered under that order.  I didn't give an order for the balance since these proceedings commenced.  I was told the balance was only 6 full cases and about 90 empty [55]

   When I looked in the Godown I counted about 900 odd cases only.  There is about Tls 7500 outstanding on the loan.  All the rest of the oil has been accounted for.   I was here when the loan was made on 22 Septr and and have been here since.  The loan was for Tls 75,000.  All the lead has not been accounted for.  The lead was in Shaw's Godown.  I have spoken to Mr. Moncrieffe about the loan & I have spoken & written to [prisoner about [56] [misuse?] of the oil.

XXd by Mr. Wt.    When the loan was made we took no steps to ascertain if the oil was there nor did we send any one subsequently to ascertain the fact.  We sent Mr. Jackson the Claims Inspector to look after the lead and he reported it was all right.  The 7220 is about the correct amount outstanding on the loan.  1282 pigs of lead are still there.  I do not know what they are worth.  Zorg's other loans on oil are all paid off.  The last of them was paid off this year.  The Bank how holds no other warrants.  The oil in Shaw's Godowns [???????] this.  [57]

   We have this year received several payments from Zorg in reduction of his loans.  When we recd these payments we also recd a letter from Moncrieffe asking us to release a certain number of cases from a particular warrant.  I am almost sure that some of these receipts referred to Warrant 274. I wrote the letter of 28th May (No. 3) to prisoner.  All the other loans had been cleared off before that date.  I [asked] for it because of the oil at Zorg's request.  This is a copy of the answer I got (No. 4) [58]   I then wrote this letter of 28th May (No. 5) & received the [reply]

(No. 6).

   I did not advise Zorg to go and seize the oil.  I arrived in Sh'ai about 20th [August] and took over charge immediately.  It is correct that the Bank has refused to transfer certain shares of Zorg and that they are more than sufficient to cover all his liabilities to the Bank.

   (Shown acct pass-book.)  His debit balance on 31st Decr was Tls. 733.180, that on 11 Jany last was Tls. 866, 994.60.  In the interval I think we had not taken any further securities from him.  About Octr we found we had 200 chests of Patna less than we thought we had; they had been given up in July.  The value was about Tls 85,000.   [59]

   About the end of Decr we bot a draft of his for $1,000,000.  The security we took for that was bank shares, sent down to Hong Kong.  The H.K. people had drawn on the Shanghai people in respect of shares that had been sent up, & the draft agst which had been not taken up.  I don't know at all what the [int] was. 

   The Shanghai branch sends a/cs once a month to H.K.  They show all the overdrafts & the securities & the marker values.  Accd was at one time the largest shareholder in the branch.  He had been debited for interest during the year over Tls 29000.  The securities on the 31st Decr were not suffct to cover the overdraft, don't know by how much.

Re-Xd.  The draft for $1,000,000 was drawn agst a confirmed credit from H.K.   [60]

Reuben Aaron Gibbs [?], sworn according to Jewish practice.  I have been examined before in relation to this charge.  I had a conversation with the Prisoner two or three days before the preliminary examination.  I went to him on some private business and he aftwds [talked] to me about Zorg.

   He asked Why is Zorg running me down I've done nothing to him.  I told him you took the oil and lead money from him.  He said as far as the lead money he knew nothing about it, and the oil money he intended to return shortly but [then he wanted] [61] to draw the Bank [stopped his drawing] (smudged and blotted).  He had no intention of swindling anybody otherwise he would not have tried so hard to pay the money back.  He asked me if I remembered his wanting to borrow Tls 18,000 from me ans said it was for [these purchases].  I understood him to mean that he wanted the money to pay for the deficiency.

XXd by Mr. Wt.   I don't remember whether this was the first time I had conversed with Prisoner on the subject.  [62]  I think it was Monday I had the conversation with prisoner.

   The deposition I made in the [particulars] of the warrant is correct with the correction of this word.  I meant to say he "wanted" not that he took the money about the end of Febry.

   The private matter I had been discussing with prisoner had reference to a matter in which I stood to lose Tls 5000 through the Prisoner.  Our conversation was not too unfriendly but I was annoyed.  I am now being sued for the Tls 5000.  I did say that if I had [been ????? like] like Benj I would not have pity upon him.  He [63] owes me more money besides.  The conversation was in Arabic and there was no one else present.  I wrote down the conversation at the Police Court.  I told Prisoner on that occasion that if proceedings were taken against me I should have to take proceedings against him.  The translation you show me of Arabic version of the conversation with prisoner [???????] one mistake which I made myself, "No other" instead of "any other."  I adhere to my statement at Preliminary Conversation.  I adhere to my statement that I cannot [recollect] [64] the exact words used.

Re-Exd by Mr. Wn.    I stood to lose Tls 5000 by Prisoner because I had given him my P/A for margin on shares he held on my account.  When I came to take up the shares he told me he had given my note to HK Bk.  I think I gave him P/A on 9th Janry.

Louis Moore, sworn.  Auctioneer. The conversation I had with prisoner to which I spoke before the magistrate took place on the 7th or 8th of May.  It was in his office.  I asked him "What is all this I heard about the [rumour] outside?"  He replied that he told himself that he must get some money [from] him, which he wd repay shortly - but that he was unable to pay back the [blot] whole amt [55] on acct of deprecn of shares - and that he had paid back about 7000 or 8000 taels.

XXd by Mr. Wt.  Mr. Jamieson was present at the conversation.  Oil was not to the best of my belief mentd.  He left a few minutes before me.  None of the conversation I have mentd took place after he left.

Le siao ping, cautioned.  Godown keeper in Sh'ai godowns.  I first went there on 1st Novbr last.  I had charge of 6 godowns.  On that date there were 10,000 cases of Kerosene oil in godown & under warrant 274 of these 92 were empty.  Of that there is now only 6 cases full and 92 empty.  The first portion was delivered on the 14 Decr.

In all in Decr I delivered                    7,050

In all in Janry I delivered                   2,450

In all in Febry I delivered                     400

In all in May I delivered                           2

                                                           9,902  in all.     [56]

 

The orders were signed by Moncrieffe.  Don't know what [came of] the oil.  800 cases were deld on the 14rh Decr to King-Chong.  All the oil was delivered to Chinaman.  There is no oil in the godown now.

XXd.  Moncrieff's compradore engaged me.  Moncrieffe managed the godown all last year.  Until Moncrieffe went away, prisoner did nothing in the way of running the godown.  I never saw him over there until after M. went away.  Nor did prisoner sign any delivery orders before that; nor did I get any orders from him before that.

   When I began in Novr there were in godown C-

Wt   268        338 cases

        274   10,000

        354     3,500

        269     6,000

        270     1,000

        271     2,500

        272     1,234

        275     5,000

        273     3,000

These include the empty cases.   [67]

The first and last cases of each lot had marked on them in chalk the no. of the lot & the no. of cases.  I never delivered from any but the proper lot.  [June] I was always there.

   I saw Mr. Zorg on W'day aftwds at 4 o'clock at the godown.  One order was brot from the H.K. Bank but I didn't deliver as it did not bear Benjamin's signature.  The key was taken from my coolie by force before the order was produced.  233 full cases were taken away, 203 [blotted] only 6 cases full & 92 empty [???] on warrant 274.

   Zorg came another day & took away from godown 7 more cases.

Re-Exd.  I am Mr. Benjamin's servant.  Moncrieffe is Benjamin's manager.  My security was given to Benjamin.  [68]

[Hattel] Joseph Abrahams, duly sworn as a Jew.  I was in charge of Sh'ai Godown.  I am [overseer] only.  I had a talk with Prisoner about the Godowns Janry to April.  I told him there had been a [??????] delivery of oil.  He told me not to mention it [?????].

 

XXd by Mr. Wt.  When I talked to Prisoner it was either at Godown or on the [side.]  He did not come over to Godown this year.  It was this year I told him there had been a [heavy??] delivery and that he told me to say nothing about it [69] because the market would go down.

Case for prosecution.

 

Mr. Wainwright opens case for defence & calls

W. B. Jamieson, duly sworn.  A British Subject and share broker in Shanghai.  I was present at a conversation between prisoner and Moore on the subject of this charge about 3 weeks or a month ago.  The conversation was in Benjamin's office & there was nobody [???] present but Mr. Moore & I.  Moore & I arrived about the same time.  There had been rumours about the Settlement in regard trouble in connection with Russian Oil [70] being short in Shaw's Godowns.  In the course of conversation Prisoner told us that towards the end of Dcr [had] asked Moncrieff if he could help him.  Moncrieff told him he had Tls 18,000 in his possession and prisoner said if would let him have that he would pay him back as soon as the banks opened at the beginning of the [???].  When the banks opened the payment was put off for a little time to a time when prisoner could no longer draw on his accounts [71] [but he scraped] up Tls 11,000 and paid over that leaving a balance of about Tls 7000 which he said he was quite [??????] of securities in his possession to the [???] of about Tls 8000 and his [friends] would secure the [balance].

   That is all I remember passing at the time.  I don't remember anything being said about oil.  I don't recollect [who began] the conversation.  I went to gather information.  Prisoner said [72] nothing as to where the money had come from - that Moncrieff gave him nor did we ask him.  He said nothing to convey the impression that there was anything wrong about the money in the way he took it.  I heard that Moncrieff did business in his own account last year.  He also collected Prisoner's rent.  I believe there were a number of shares bought on Speculation at Hong Kong & sent up here.  Buyer was unable to take up the drafts & they were returned to HK.  The rate at that time from HK [here] was 73 5/6.   From here to HK was 72 at [30 days]. [73]

XXd  by Mr. Wilkinson.  I am sure of Prisoner saying that Moncrieff had Tls 18000 in his possession or in his hands.  He said he asked Moncrieff to let him have the money for a few days.  He was to repay the money to Moncrieff.  He did repay him Tls 11,000 and he was [prepared] to repay balance.  It did not strike me as curious that Moncrieff should be in a position to lend Tls 18000 to Prisoner.

David [Hai] Silas.  Sworn according to Jewish Fashion. I am a British Subject and a [broker]. [74]   Last year I was clerk to Prisoner all the year.  I left him in January this year.  When I was with him my duty was that of general clerk.  Prisoner can read & write English but not well.  I read and explained English letters to him.  He had no one besides him in his office.  I am his brother in Law.  I know Moncrieff well.  He was manager of Shaw's godown, collector of Prisoner's rents and manager of [house property] & oil & lead business for Prisoner.  He had a separate house and office.  Prisoner took no active [75] part in the Management of Shaw's Godown and never signed warrants or delivery orders.  Moncrieff did business in Shaw's oil & [????] goods and several other things I don't know [on] his own account.  He also did business through Prisoner in Shaw's [for]  Prisoner.  Knew that Moncrieff did business on his own account.

   Prisoner ????????? goods of Moncrieffe  in his [?????] & asked him about it who said they were his. While the [???] of [???] from Moncrieffe was [????] heavily smudged ?????????????????????/

[76]

of Prisoner 20000 to 24000 taels besides monies he had collected.  Prisoner about the end of last year applied to Moncrieff for money in my presence at Prisoners office on the Bund.  Moncrieff said he would try his best to pay.  That was about the middle of Decr.  I do not know of my own knowledge whether Moncrieff did pay any money to prisoner.

   The value of Russian oil was about Tls 1.30 [on a contract] in Decr.  The value of lead has been 3.25 to 3.30 per [????] in the last 2 or 3 months. 

   I made a translation from a paper in Arabic written by Gubbs in Police Court. [77]  I have been using Urban Arabic for about 15 years and this translation is correct.  [No. 7]

   Last year prisoner had accounts with HK & Sh'ai Bk, Chartered [Mer.Mun.] Bank, Chartered Bank "The Agra", the Comptoire and the [SBC?].  He had closed his account with the National Bank before it closed.  The accounts varied in size, the HK account was the largest.  I know the letters [No. 9] from the HK & Sh'ai Bk you show me.  I recd these & read them to Prisoner.  I do not know of any thing [to contradict?] the arrangements mentioned in these letters. [77]

  

XXd by Mr. Mayburgh.  I have no doubt Moncrieff did owe Benjamin Tls 20000 to 24000 on Decr last.  I don't know whether that amount has been increased or decreased since then.  Benjamin did not ask Moncrieff to lend him money in my presence.

   Prisoner never spoke to me about difficulties with the banks.  I know all the Banks were pressing him for interest.

Re-Exd by Mr. Wt.  I don't recollect whether he did pay up the interests to the bank.

4.45 p.m. adjourned to 9.30 a.m. 10th.

 

R. T. R., C.J.

9.6.84

 

[79]

June 10th 1884

 

Regina v. Benjamin.

 

(Adjourned from 9th inst.)

Mr. Wainwright sums up defence.

[Confessions] Archbold Pl & Ev 17th Ed., p. 233

19th Ed., p. 257

Parol confession to be acted on with [much] caution.

Reg. V [Scrivins] 6 C&P 540

Earle & White v Pickin 5 C&P

Rosen Crim. Evide 7th Ed., p. 38

4 Blacks Com., 357

Evidence of Gubbs.

Mr. Wilkinson replies.

[???????] of the witnesses

Did [??????] actually [??????] the money.

 

[80]

Judge sums up.

Jury retires & returns in about 10 minutes.

Verdict not Guilty.

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