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Colonial Cases

Roberts v. Vincent, 1893

[debt recovery]

Roberts v. Vincent

United States Consular Court, Shanghai
Emens, 14 July 1893
Source: North China Herald, 21 July, 1893

U.S. CONSULAR COURT.
Shanghai, 14th July.
Before W.S. Emens, Esq., Acting Consul-General, and Messrs. F. H. Haskell and E. U. Smith, Associates.
ROBERTS v. VINCENT.
In this case John Roberts, a British subject resident in Shanghai, and a diver by profession and occupation, sued Charles Nicholas Vincent, an American Citizen, a pilot, for Tls. 1,000.
  In his petition the plaintiff alleged that in or about the month of August 1891 he lent to the defendant the sum of Tls. 700, and in or about the following October a further sum of Tls. 300, making in all Tls. 1,000. He further alleged that the defendant had promised to repay the sum, but although frequent application had been made to him he had since refused.
  The defendant in answer absolutely denied borrowing the money, or that frequent application had been made to him for payment of the sum of Tls. 1,000, but admitted that he received an application, dated the 29th May, 1893, from plaintiff's Counsel demanding repayment of the sum of Tls. 1,000, which he refused to pay.
  Mr. H. P. Wilkinson appeared for the plaintiff, and Mr. H. Browett for the defendant.
  Plaintiff's evidence was to the effect that about two years ago the wreck of the Holm Eden was put up at auction and bought for Tls. 4,000. Mr. Hirsbrunner agreed to take to quarter shares, and he (Roberts) and the defendant a quarter share each. Vincent was short of money at the time, and plaintiff lent him Tls. 700, which he took from the Bank where it was on fixed deposit, and Tls. 300, receiving from the defendant the document (produced) witnessed by Capt. McCaslin. The first part of the document was in plaintiff's handwriting, and the bottom part in defendant's.  It was signed by defendant, and dated 1209th August, 1891.
  Captain McCaslin, who was next examined, recollected the conversation about the Tls. 700, but he did not see any money pass. Roberts wrote something down at Vincent's direction, and the latter signed it. The document produced bore Vincent's signature.
  Upon the case for the defendant being gone into,
  Defendant was called. He said that the letter from Mr. Hirsbrunner, which had been put in, had been stolen from his log-book. He denied that he had any interest in the purchase of the Holm Eden. He told Mr. Hirsbrunner it was a good speculation, and the latter went in for it.
  Roberts had never lent the defendant the money he now claimed, in fact at the time the transaction was alleged to have occurred Roberts was out of funds whilst defendant had some Tls. 1,800 or Tls. 2,000 in the bank. In June, 1891, defendant inserted an advertisement in the N.C. Daily news saying he would not be responsible for any debts contracted by his wife. The reason of that was that she was very extravagant.  About that time he was going away on some expedition, and in order to protect the interests of his child, he wrote out a similar document to the one produced and handed it to Captain Taylor.  The signature on the document which had been put in by Roberts was a forgery.
  Cross-examined by Mr. Wilkinson - The document produced is signed E. Vincent, and his name was C. Vincent. E. Vincent was his wife's name.
  Captain Taylor said he recollected Captain Vincent signing a paper similar to the one produced. Vincent was drunk at the time, and witness tore it up. Vincent them made out an I.O.U. for Tls. 1,000, and handed it to witness, who missed it after he had had it in his log book for some time. Vincent said his object was to protect his child's interest in case he met with any harm.
  Cross-examined by Mr. Wilkinson - Capt. McCaslin was not present on the occasion referred to. The top of the document produced looked like Roberts' writing, and the signature and writing at the bottom looked like Vincent's.
  Mr. Browett on behalf of the defendant said that if any document similar to the one produced had been signed by Vincent, it was for the purpose of guarding his child's interest against the extravagance of his wife. There was no evidence to support Roberts' story of the loan, and he also commented upon the fact that such a long time had been allowed to pass without proceedings being taken.
  Mr. Wilkinson for the plaintiff urged that it was clear that the document which Capt. Taylor had spoken of could not be the one which was produced which was witnessed by Capt. McCaslin, who had also recollected the specific amount being talked about.
  This concluded the hearing, Judgment being reserved.
.  .  .  
18th July.
  Judgment was delivered in this case in which John Roberts, a British subject resident in Shanghai, and a diver by profession and occupation, sued Charles Nicholas Vincent for Tls. 1,000, alleged to have been lent.
  Mr. Emens in giving judgment said - The plaintiff in this case claims that he lent defendant Tls. 700, "on or about the month of August, 1891," and a further sum of Tls. 300, "on or about the month of October, 1891, - the total sum of Tls. 1,000.!"
  It is set forth in the petition that defendant had promised to pay plaintiff the said sum of Tls. 1,000 and that he (the plaintiff) has made frequent applications to the defendant for payment but "he has refused and still refuses to pay the same or any part thereof."
  The defendant "absolutely denies the allegation contained in the 3rd, 4th and 5th paragraphs of the petition" and also "denies that frequent application has been made to him for payment of the sum of Tls. 1,000, but admits that a few days ago he received an application, dated the 29th day of May, 1893, from plaintiff's Counsel demanding repayment of the sums of Tls. 700 and Tls. 300, making together the sum of Tls, 1,000 and that he refused to pay the same or any part thereof."
  In support of his claim the plaintiff produced the following writing (exhibit O): "If I should be carried off in the barque you take charge of my pilot boat as a guarantee for the money I owe you. I should have seen you and arranged things but had no time." This was written by Roberts.  Below it is the signature "C. Vincent" and "Witness, C. H. McCaslin." Below the signatures in a different handwriting is "August, 1891. Under any circumstances you will act for me or my wife and children."
  In the absence of any other written memoranda, agreement or promise to pay; or in the absence of clear parol testimony in explanation, the above writing is incoherent. Plaintiff's endeavour to show that defendant borrowed Tls. 700 to pay for a share he had bought in the wreck of the Holm Eden failed.
  The Court is satisfied that defendant had no share on the wreck of the Holm Eden, and that plaintiff as shareholder himself was in a position to know this. Captain McCaslin's testimony as to what was said and done in August, 1891, while he was "sitting reading the newspaper" and not paying "any particular attention to the matter," is without a foundation of established fact on which to base the inference sought to be made; and has the disadvantage of being remote in time. The Court has felt the want of evidence, which the plaintiff's learned Counsel must have produced if it exists, or explained its non-existence, and which is essential to enable the Court to accept as evidence such an uncertain document as that of August 15th, which unsupported by contemporaneous evidence of possession, payment or application of the amounts sued for, is a nullity.
  Proof of the demands for payment which plaintiff says he made "dozens of times," or of any acknowledgement of debt in response to these numerous demands has not been forthcoming. Regarding the Tls. 300 the plaintiff claims to have lent defendant in October, no evidence beyond plaintiff's statement and defendant's denial is before the Court.
  There will be judgment for defendant with the usual costs ($60.60.)
(Signed) &c.

 

Source: North China Herald, 4 August, 1893

U.S. CONSULAR COURT.
Shanghai, 29th July.
Before W. S. Emens, Esq., Acting Consul-General, and Messrs. F. H. Haskell and E. U. Smith, Associates.
ROBERTS v. VINCENT.
  This was an application on behalf of the plaintiff for a re-hearing of this case in which John Roberts, a British subject resident in Shanghai, and a diver by profession and occupation, sued Charles Nicholas Vincent, an American citizen, a pilot, for Tls, 1,000, alleged to have been lent. It will be recalled that on the 18th instt., judgment was given for the defendant.
  Mr. H. P. Wilkinson appeared for the plaintiff and Mr. H. Browett for the defendant.
  The affidavit upon which plaintiff based his application was as follows:
  I, John Roberts the above named plaintiff make oath and say as follows:-
  No. 1. - The defendant when giving evidence on oath on the 14th day of July, 1893, on the hearing of this suit stated (1) That he, the defendant, had no share whatever in the wreck of s.s. Holm Eden, and that the pilot-boat the Syren never visited the said wreck. (2) That he the defendant at the time of the loan to him, pleaded in the petition in his suit, had in the Hongkong and Shanghai Bank the sum of Tls. 1,800 or Tls. 2,000 to his credit. (3) That I, the plaintiff, was at the said time last referred to indebted to one Osborne Middleton and was in impecunious circumstances. (4) That he, the defendant, at the said time as above asked one Captain W. Davey to subscribe to a fund for my benefit, and that the said Capt. W. Davey replied to the effect that he would give $10 to see me, the plaintiff, buried. (5) That the signature "C. Vincent" appended to the document produced at the said hearing and marked "Exhibit C" was not in the handwriting of him the defendant. (6) That he the defendant, at the same time above referred to was earning the sum of Tls. 700 or Tls. 800 monthly as a pilot.
  No. 2. - All the above statements are to the best of my knowledge, information, and belief false and perjured.
  Defendant's affidavit in reply was as follows:
  I, Charles Nicholas Vincent, the above named defendant make oath and say as follows: (1) that it is perfectly true that I had no share or pecuniary interest whatever vin the wreck of the s.s. Holm Eden, but I deny that I ever stated that my pilot boat the Syren never visited the said wreck. As a matter of fact on one occasion as a convenience to the plaintiff I took him in my pilot boat to the said wreck and on another occasion I lent him my pilot boat to go to the said wreck as the persons interested in the said wreck were friends of mine. (2) With regard to the statement made by me at the hearing of the above suit that I had no occasion to borrow money at the time of the alleged loan of Tls. 700, it was and is perfectly true. At the time of the alleged loan I had an open offer from one C. M. Centerwall, a pilot, to purchase a half share in my pilot boat for Tls, 2,000, which he told me was in the Bank and I could have it at any time I liked. It was this money I referred to in my evidenced at the hearing of this suit.  (3) That I absolutely deny that I stated in Court that the plaintiff was at the time of the alleged loan indebted to one Osborne Middleton. What I did say was that "He (meaning the plaintiff) told me he intended to borrow money from Mr. Middleton to purchase the wreck of words to that effect." (4) I admit that I stated in Court "How could he (meaning the plaintiff) lend me money when he was hard up himself and wanting to borrow money" or words to that effect. I made such statement in consequence of what plaintiff had told me himself. (5.) That what I stated in Court regarding the signature C. Vincent was true, (6.) That what I stated in Court regarding my earnings at the time of the alleged loan was true. (7.) That the accusation of perjury made in the said affidavit filed by the plaintiff was made maliciously and without foundation for the purpose of vexing me, the defendant, and without reasonable or just cause. (8) That the application by the plaintiff for a re-hearing of the above suit is also made maliciously and vexatiously and without reasonable or just cause.
  Mr. Wilkinson in support of his application said to charge a man with perjury was a very serious thing indeed, and not to be made lightly, but when the facts were such that it appeared to the litigant acting on legal advice that such a charge was correct then it was necessary to press it. One of the material questions in the last trial was whether the defendant had any share in the wreck of the Holm Eden. He distinctly swore he had not, but the learned counsel contended that that was a clear and distinct piece of perjury for evidence had come to light since the trial, which proved conclusively that Vincent had a share in the wreck.
  There was a letter already before the Court written by Mr. John Hirsbrunner to defendant dated 8th May, 1891, in which the following reference was made to the purchase of the wreck:
  "My dear Charlie,
                                     You see the wreck has fetched the very long price of Tls. 3,275 and that it is split up into four interests, one half of it being between you and Roberts."
Then there was an affidavit put in by plaintiff in which it was sworn that the facts set out in Mr. Hirsbrunner's letter were true.
  Mr. Browett objected to any reference being made to the affidavit put in by plaintiff yesterday or any of the other affidavits, six in number, put in yesterday, being made by Mr. Wilkinson. He (Mr. Browett) had no time to read or reply to them and under the circumstances he contended they were inadmissible.
  After some discussion the Court ruled that the affidavits were admissible.
  Mr. Wilkinson, continuing, said there was a letter dated May 8th in which the price of the wreck was mentioned, and also the fact that Roberts and defendant were the owners of a half share in her; and on the 27th July, 1891, Mr. Hirsbrunner admitted, in another letter to the plaintiff, that the letter of May 8th was true in substance and in fact. Again there was an affidavit put in by Mr. Osborne Middleton stating that defendant offered to sell him half his interest in the Holm Eden, and another affidavit by Mr. G. A. Woods, who stated most emphatically that defendant said: "I hope to ---- we shall get on all right as I owe Jack a lot of money, and if this thing bursts up I don't know how I shall pay."
  His Honour asked was not this evidence procurable at the time of the trial.
  Mr. Wilkinson replied that he had no knowledge of what evidence Mr. Middleton and Mr. Woods could give at the time of the trial, and besides it was impossible to bring evidence to rebut all the statements made by the defendant, as, at the time of the trial, he (Mr. Wilkinson) could not anticipate what line of defence would be taken up.
  Mr. Browett, in opposing the application, said his learned friend had not produced any evidence to substantiate the charge of perjury. As for the grounds upon which a new trial could be asked they were (1) the evidence must be new and such as did not exist at the former trial, or the existence of which was not known; (2) it must be material to the issue, and not to discredit or impeach a former witness; (3) all reasonable diligence must have been used to discover and preserve evidence; and (4) the evidence must not be cumulative.
  His Honour said the Court would take time to consider its verdict.
.  .  .  
1st August.
  Judgment was delivered in regard to the application on behalf of the plaintiff for a re-hearing of this case in which John Roberts, &c. His Honour read the following judgment:
  The application of plaintiff for a new trial of the suit wherein judgment was given against him and in favour of defendant, 18th July, 1893, has been considered, and a new trial of the suit is refused for the following reasons:-
  The plaintiff makes application for a re-hearing on the ground that the defendant in testifying at the trial made statements which plaintiff says, to the best of his knowledge, information and belief was false and perjured. The Counsel for plaintiff elected to base his application on paragraph 42 of the Court Regulations, which provides that on proof of the perjury of any important witness of the prevailing party upon a material point, affecting the decision of a suit, the Consul who tried it may, within a year after final judgment, grant a new trial upon such terms as he may deem just.
  In support of plaintiff's allegation of perjury on the part of the defendant we have the affidavit of Osborne Middleton, who states that ibn May or June, 1891, Vincent offered him a share in the wreck of the Holm Eden which he declined. George H. Woods makes affidavit to the effect that he, in company with a Chinaman, went to Vincent in August or September, 1891, wishing to purchase some iron that had been salved from the Holm Eden, and that Vincent said to deponent, on this occasion, "I hope to God we will get on all right as I owe Jack a lot of money and if this thing bursts up I don't know how I shall pay him."
  The other side have brought the affidavits of Captain Parker and John Hirsbrunner, both shareholders in the wreck of the Holm Eden, and who both swear that Vincent "had no share or pecuniary interest in the said wreck whatever."
  Th Court decides that the charge of perjury has not been made out. The Court does not feel called upon to deal with the other affidavits filed.
(Signed) [Judge and Associates.]

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