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Colonial Cases

Turner and Schon v. Brown and Harris, 1891

[statute of limitations]

Turner and Schon v. Brown and Harris

Supreme Court for China and Japan
Hannah CJ
Source: North China Herald, 19 February, 1892

H.B.M.'S SUPREME COURT.
Before Chief Justice Hannah.
TURNER AND SCHON v. BROWN AND HARRIS.
This was an action by a firm of merchants carrying on business at 101 Leadenhall Street, London, against Thomas Brown, of Shanghai, as administrator of the estate of  Astle Greathead, deceased, and against William Harris, also of Shanghai, under the following circumstances alleged in the plaintiff's original petition.
.  .  .  
Mr. Wilkinson, for the defendant Brown, contended that it was not payment only which took a debt out of the Statute of Limitations, but payment under such circumstances as implied a promise to pay the balance. Any payment made by Harris was as manager to wind up the estate, and not as agent of his co-partner. With regard to the musk, there was nothing to raise an implied authority  to Harris to bind Greathead.
  The defendant Harris stated that he could shew by his books that Greathead had received over Tls. 600 in cash and Tls. 1,000 in credit out of the profits; and he  (defendant) presumed that, having shared in the profits, Greathead must also share in the losses.
  At the conclusion of the arguments, his Lordship reserved judgment.

Source: North China Herald, 11 March, 1892.

Mr. Wainewright contended that until the last sale was effected the plaintiffs were unable to make any claim upon the defendants because they did not know until then whether the musk would sell for more or less than the amount of the bill, nor did they know the exact amount which their claim against the defendants would amount to upon this particular shipment. He in effect contended that the debt did not arise until the sale of the last portion of the musk.
  On the other hand, Mr. Wilkinson contended that the debt arose in October, 1883, when the bill drawn by William Harris & Co., on the plaintiffs became due.
  I am of opinion that Mr. Wilkinson's contention is the correct one.  Mr. Wainewright did not raise the point whether the crediting Messrs. William Harris & Co., with the sum realised by the last sale of the musk in the books of the plaintiff amounted to a payment on account such as to take the item out of the statute. As the point was not raised it is only necessary for me to say that I have considered the matter and have come to the conclusion that it could not have been successfully contended that the case was taken out of the statute by what took place.
 There must therefore be judgment for the defendants with costs.

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