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Colonial Cases

American Trading Co. v. Reid, Evans and Co., 1897

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American Trading Co. v. Reid, Evans and Co.

Supreme Court for China and Japan
Hannen CJ, 22 April 1897
Source: North China Herald, 30 April,1897


 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 22nd April.

Before Sir N. J. Hannen, Chief Justice.

AMERICAN TRADING CO. v. REID, EVANS & CO.

   This was an action in which the plaintiffs alleged that nineteen bales of piece goods which had been fraudulently removed from their godowns, had been deposited with the defendants who refused to return the same, and they therefore claimed Tls. 400 as damages, and in default of the delivery of goods Tls. 3,500.  The goods were described as consisting of 4 cases Italians, 7 cases Irishes, 3 cases white shirtings, and 5 cases Mahomeddans cloth. The defendants answered that if the goods were stored in their godowns as alleged they were so stored without their knowledge or privity, and that they had no interest whatever in and no power of control over the goods.

   Mr. H. S. Wilkinson, and with him Mr. H. P. Wilkinson, appeared for the plaintiffs, and Mr. W. V. Drummond, for the defendants.

   Mr. James Jones, the manager in Shanghai of the American Trading Company, gave evidence that in March he missed the nineteen packages, and through the police instituted enquiries, the result of which was that, accompanied by Detective Armstrong, he saw Mr. Perrott, of the defendant firm, and told him that the goods were in their (defendant's) godowns.  A godown man of the defendants said the compradore was absent, and that it was his business. Mr. Perrott undertook the goods should not be removed until the compradore returned. Some time after Messrs. Reid, Evans & Co.'s compradore called on witness and stated that he had advanced a large sum of money on the goods, which he refused to deliver up unless payment was made of Tls. 1,770.  Witness believed the goods were stolen by the American Trading Company's godown man and pledged to somebody else.

   Ting Yu-hung, compradore to the defendants, who was called for the defence, said in February last he advanced Tls. 1,770 to a piece-goods man in the Tung Mow hong upon his sending nineteen packages of goods. Since storing the goods he had heard they were stolen from the American Trading Co.'s godown, and he believed the matter had been taken to the Mixed Court.

   Mr. E. S. Perrott, Manager in Shanghai of Messrs. Reid, Evans & Co., said the first intimation he had of the storing of the goods in his firm's godown was from Mr. Jones, about the beginning of March. He made enquiries and was told that the compradore had advanced money on the goods to a man in the Tung Mow hong. Witness' firm allowed the use of their godowns to the compradore when they did not require them, and it was impossible to say at any particular time when goods other than their own might be stored there.

   Cross-examined by Mr. Wilkinson - The godown man is our servant, but we do not pay him. If I told him not to let the goods go out of the godown I suppose I should expect him to obey my orders. When I told him not to let them go I suppose he obeyed. After I was ordered by the police not to let them go I suppose I should not have allowed delivery until the compradore's return from Canton. I had no control over them. The godown man is responsible to us for anything in the godown.

   Re-examined - We have no list of the goods sent in by the compradore. Our godown man is not responsible for them.

   Mr. Wilkinson argued that unless the goods were brought in market overt there was no defence to the claim of th real owner for their return against anyone in whose possession they were found, and it was ridiculous to argue that this godown was not the property of and under the control of Reid, Evans & Co. and this was shewn by the fact that Mr. Perrott had ordered his godown man not to part with the goods until Ah Wei, as the compradore was known, returned from Canton and that position had not altered since his return.

   Mr. Drummond held that Ah Wei having used the godown to store and remove goods without consulting Reid, Evans & Co., the goods were never really under their control.

   His Lordship ruled that Mr. Perrott, in ordering the godown man not to deliver the goods until Ah Wei returned, acted merely as his agent.

   Judgment was given for the defendants with costs.

 

Source: North China Herald, 14 May,1897

LAW REPORTS

H.B.M.'S SUPREME COURT.

Shanghai, 10th May.

Before Sr. N. J. Hannen, Chief Justice.

AMERICAN TRADING CO. v. REID, EVANS & CO.

   This was an application by the plaintiffs for a re-hearing of the action heard on the 22nd of April in which the plaintiffs alleged that nineteen bales of piece goods, which had been fraudulently removed from their godowns, had been deposited with the defendants who refused to return the same, and they therefore claimed Tls. 400 as damages, and in default of the delivery of goods Tls. 3,500. The goods were described as consisting of 4 cases Italians, 7 cases of Irishes, 3 cases white shirtings, and 4 cases Mahommedan cloth. The defendants answered that if the goods were stored in their godowns as alleged they were so stored without their knowledge or privity and that they had no interest whatever in and no power of control over the goods. His Lordship in the original action gave judgment for the defendants.

   Mr. H. P. Wilkinson appeared for the plaintiffs, and Mr. W. V. Drummond for the defendants.

   Mr. Wilkinson said he appeared to move for a re-hearing of the suit on the ground "that material facts were not brought to the attention of this honourable Court on the hearing of this suit on the 22nd of April."  In support of the application the following affidavit had been lodged by Mr. Jones:

I, James Jones, a British subject, agent at Shanghai of the American Trading Company, the plaintiffs above named, make oath and say as follows:

[1.] I was present in Court on the 22nd day of April instant when judgment was delivered in this case.

[2.] I thereupon applied to James Scott, Esquire, Her Britannic Majesty's acting Consul at Shanghai and British Assessor at the Mixed Court, for the necessary steps to be taken in the Mixed Court for the preservation of and effective control over the goods the subject matter of this suit pending a decision as to the right of the plaintiffs to the recovery of the said goods, but the said assessor informed me that the Mixed Court does not issue or execute and would not issue or execute, any order for the delivery up or control over goods being in the premises of a British subject or a British firm.

[3.] The said goods are still on the premises of the defendant firm.

[4.] I am advised and believe that no other Court but this Court has jurisdiction over the premises wherein these goods are stored, or over any goods stored therein, and that no other Court can make an effective order for the specific delivery up of the goods in question and that the officers of no other Court could properly enter the premises in question without the leave or license of the defendants.

   That the omission to bring material facts to the notice of the Court was a sufficient ground for a new trial was shown, he thought, by the case of Baden-Powell v. Wilson (Weekly Notes, p. 146, 1894), and under the Orders in Council that Court had power to order a re-hearing in any case, on such terms as it deemed just. He was of course willing, if a re-hearing were granted, that it should not affect the question of costs on the other suit. In the original suit his Lordship would remember that he decided that the goods were not in the actual physical possession of the defendants. The only point was whether the defendants were or were not in the actual possession of the goods. It was contended by Mr. Drummond at the trial that the plaintiffs ought, as a matter of fact, to have taken proceedings in the Mixed Court against the alleged Chinese owner of the goods. Supposing such proceedings had been taken and judgment obtained against hi,m the question arose whether the American Trading Company would have any remedy. He contended, and the statement of Mr. Scott in the affidavit supported it, that the Mixed Court would refuse to make any order seeing that the goods were in a godown belonging to a foreigner, and if the Mixed Court did venture to make such an order it could not be carried out. The goods, however, might be attachable by some law; the Chinese was not in possession and therefore Messrs. Reid, Evans & Co., must be.

   Mr. W. V. Drummond first raised the question whether, under section 4 of the Order in Council 1878 either party could apply for a re-hearing at all. The section read:

Any party to a suit or proceeding wherein any matter or question is heard and determined by the Assistant Judge shall be entitled, as of course, to a re-hearing before the Chief Judge, sitting with the Assistant Judge, or, in the unavoidable absence of the Assistant Judge, alone.

He thought that clearly meant that any re-hearing of the sort could only be where the case had been heard by the Assistant Judge.

   His Lordship said he was distinctly of opinion that the application for a re-hearing could be made; whether it should be granted was another thing. He did not think that the article quoted repealed the clause of the original Order in Council which provided for the application for re-hearing.

   Mr. Drummond thanked his Lordship for the intimation. He went on to say that after the hearing of the suit he received notice from Mr. H. S. Wilkinson that it was intended to appeal to the Privy Council, but the next he heard was the notice of the present application.

   Mr. H. P. Wilkinson said he was sorry no notice was given, but the appeal to the Privy Council had been abandoned.

   Mr. Drummond, proceeding to reply to Mr. Wilkinson's argument, said that the affidavit of Mr. Jones really raised no reason for the granting of a new trial. The statement credited to Mr. Scott was what every foreigner of intelligence in China was aware of, viz., that the Mixed Court could have no effective control over the property of a foreigner. They should first of all have proved the theft of the goods, which they had not done, and should then have proceeded against the compradore in the Mixed Court for the return of the goods upon which he alleged he had lent money. But instead of instituting an action against the compradore in the Mixed Court, where the case would have been decided, the plaintiffs had chosen the roundabout way of proceedings against Messrs. Reid, Evans & Co.  In the event of the Mixed Court ordering the compradore to return the goods, it was hardly likely to be supposed that Messrs. Reid, Evans & Co., would resist the execution of the order, and if they did, then would be the time to proceed against them in that Court. The plaintiffs, however, seemed to assume that Messrs. Reid, Evans & Co., would not allow the judgment of the Mixed Court to be executed, in support of which idea there was absolutely no evidence.

   Mr. Wilkinson, in reply, said his point was that the Mixed Court would not make an order against the goods whiklst they were in the godown of a foreigner.

   His Lordship said he could not grant Mr. Wilkinson's application, for the simple reason that he had nothing to do with the Mixed Court. On the original petition he had determined that the goods were not in the possession of Messrs. Reid, Evans, & Co., and what the Mixed Court had to say upon that question could not affect his opinion. 

   He thought it was manifest that the plaintiffs could seek a remedy against the compradore in the Mixed Court, and then, if an order were made against him and he said he could not deliver the goods because they were in Messrs. Reid, Evans & Co.'s godown, the endorsement of the judgment by the Consulate would probably be sufficient. The plaintiffs had raised a lot of difficulties and seemed to think they were badly treated because the Court did not interfere in what was really a question between them and the Chinese. They seemed to have set about the matter in a roundabout way, which would have necessitated him (his Lordship) getting into the law of China upon the point. He should never grant a re-hearing except on the strongest possible grounds, and he did not think they were sufficiently strong in the present case. The motion would therefore be dismissed with costs.

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