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Colonial Cases

Bailey v. Williams, 1885


Bailey v. Williams

United States Consular Court, Shanghai
Smithers, 24 October 1885
Source: North China Herald, 28 October 1885

Shanghai, 24th October.
Before E. J. Smithers, Esq., Consul-General, and Messrs. W. S. Wetmore and D. C. James, Assessors.
  Mr. C. Dowdall appeared for the plaintiffs, and Mr. E. Robinson for the defendant.
  This was a claim for Tls. 1,204, rent of the property known as "Belleview," and for a decree of ejectment against the defendant.  The plaintiffs are trustees of the state of the late Mr. Roggers, whose widow is now married to the defendant. The claim was advanced by the plaintiffs on behalf of the children of the deceased; and it was met by a counter-claim for (1) money lent by the defendant to the estate, in all Tls. 2,165; (2) interest at the rate of 12 per cent; (3) cost of maintaining three of Roggers's children, and funeral expenses of one child.  
  In answer to this counter-claim the plaintiffs admitted the money lent, but disputed the amount of interest and the claim for maintenance of the children.  They also alleged that the defendant was indebted to the estate for certain repairs to the property which had been paid for by the trustees, but for which the defendant, as tenant of the property, was responsible under the agreement.
  Mr. Dowdall submitted that as the trustees and the children were British, the counter claim ought to be heard in the British Court.  He therefore asked the Court to decide in favour of the plaintiff as to the original claim, which was admitted, and to stay the execution of their decree against the defendant until the counter claim should have been heard and settled in the British Court.
  Mr. Robinson contended that it would be more convenient for the Court to hear both the claim and he counter claim.
  The Court decided to hear both the claim and the counter claim.
  Mr. J. Bailey, one of the plaintiffs, was examined, and a quantity of documentary evidence was put in.
  Mr. Dowdall, in summing up the case for the plaintiffs, said it was simply one of accounts, about which there was in reality very little dispute.  He said the case was brought because the plaintiffs had been unable to obtain any proper account from the defendant.  The trustees were anxious to settle the accounts and terminate the defendant's tenancy in order that the property might be disposed of in the best interest of the children.  He suggested that the account should be referred to an arbitrator, and then that the Court, if I should agree with the finding of the arbitrator, should, on accounts being settled, make a decree of ejectment against the defendant.
  Mr. Robinson said he was quite willing that the mater should be referred to an arbitrator, but he asked the court first to give its decision on the principal points in dispute between the parties.  The first was with regard to the repairs to the property.  The amount claimed was principally for external repairs, and Mr. Robinson contended that under the defendant's agreement of lease the tenant was not responsible for external repairs.  The next point was with regard to the rate of interest to be charged on the defendant's loan to the estate.  It was admitted by both parties that there had been no agreement as to the rate of interest to be charged, and Mr. Robinson claimed 12 per cent.
  Mr. Smithers said the rate of interest laid down in the Rules of this Court was 12 per cent, and h had no discretion in the matter.
  Mr. Dowdall contended that as the loan was one made to British subjects, the rate of interest fixed by the Rules of the American Court did not apply; but Mr. Smithers still held that if the Court allowed interest they could allow it only at the rate fixed by its Rules.
  Mr. Robinson said the next point was with regard to the amount due to the defendant for maintaining three of Rogers's children.  The plaintiffs denied that there had been any agreement as to this; but Mr. Robinson contended that the evidence showed that there was an agreement that three fourths of the rent of the property should be retained by the defendant to pay for the maintenance of the children.
  The Court adjourned for a few minutes to consider these points, and on their return,
  Mr. Smithers announced that they had come to the following decisions: (1) that there was an agreement that three-fourths of the rent should go to the maintenance of the children; (2) that the estate, and not the defendant, should pay for the external repairs; (3) that the interest should be 12 per cent.
  The accounts would be referred an arbitrator, to be agreed upon by the parties; the arbitrator would go into the accounts and settle them upon the above basis, and his decision would be referred to the Court, who would then meet again to make such an Order as the case required.

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