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Colonial Cases

Von Dreitche v. Hong Kong and Shanghai Bank, 1887

[enforcement of debt]

Von Dreitche v. Hong Kong and Shanghai Bank

Supreme Court for China and Japan
Rennie CJ, July 1887
Source: North China Herald, 22 July 1887

Before Sir R. T. Rennie, H.M.'s Chief Justice.
  This was a suit brought by Mr. von Dreusche against the Hongkong and Shanghai Bank to recover a sum of Tls. 9,367.68, being the amount of loss sustained by the alleged wrongful action of the bank in removing the plaintiff's goods.
  From the pleadings in this case it appeared that in the winter of 1885 and spring of 1886, the plaintiff overdrew his account at the bank, and, as security against such overdraft, signed promissory notes, and, further, gave the bank letters of hypothecation on certain goods then stored in his godown.  Shortly afterwards the bank took possession of the goods so pledged, and removed them from the plaintiff's control into other godowns, and the present suit was brought to recover the sum which the plaintiff alleged he had lost by the action of the bank.
  The facts in the case were not disputed, and, on the Court proceeding to settle the issue, it was settled that the first question to be decided was whether the bank's action was legal or nor, the question as to recovery for loss sustained depending entirely on the decision which might be arrived at on the first issue.
  The plaintiff, on being sworn, recapitulated the facts as given above, and argued that the bank's action was illegal because they had seized the goods without previously demanding payment of the amount due by him.  He denied that his goods had ever been attached by the German Consular Court, alleging that the action of the then Acting German Consul had been ultra vires and illegal.  The promissory notes given to the bank had never been presented for payment, and he contended that the letters of hypothecation which he had signed were intended solely as supplementary security to the promissory notes, and could only be acted on after failure on his part to pay them.  Such failure not having taken place at the time of seizure, he contended that the seizure had been illegal, and therefore sued for the loss caused by his inability to dispose of the cargo consequent on its removal from his own custody.
  Mr. Leith, agent of the defendants, deposed that in the spring of 1886, hearing that the plaintiff's goods were attached by order of the German Consular Court, he produced the plaintiff's letters  of hypothecation to the then Acting German Consul, and applied for the release of the goods.  This was granted, and the defendant thereupon removed the goods from the plaintiff's custody.  This course was necessary for the protection of the bank's interest in the goods, and was, he contended, warranted by the terms of the letters of hypothecation signed by the plaintiff.
  His Lordship here intimated to the plaintiff hat he was clearly of opinion that the defendants had not exceeded their legal rights in the removal of the goods, and pointed out that if the plaintiff desired a decree for an account to be taken of the dealings between himself and the defendants, he would be allowed so to amend his petition as to entitle him to such relief.
  The plaintiff declining to avail himself of this offer, His Lordship gave judgment for the defendants, dismissing the petition with costs.

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