Skip to Content

Colonial Cases

Yah Chee v. Butterfield and Swire, 1897

[balance of account]


Yah Chee v. Butterfield and Swire

Supreme Court for China and Japan
Hannen CJ, 5 November 1897
Source: North China Herald, 12 November, 1897




Shanghai, 5th November.

Before Sir N. J. Hannen, Chief Justice.


   This was an action to recover the sum of Sh. Tls, 4,962.69 and interest at the rate of eight per cent per annum, balance due on accounts of the sale of 33,000 cases of kerosene all shipped to Tientsin by the plaintiff and sold by the defendants on his behalf.

   Mr. J. P. Wilkinson appeared for the plaintiff, and the defendants were represented by Mr. E. Nelson (Messrs. Johnson, Stokes and Master.)

   Mr. Wilkinson having opened the case for the plaintiff,

   Yu Ya-ching, the plaintiff, was called and said that his hong named was Yah Chee. In November last year he bought oil from the Standard Oil Co. Altogether he bought 40,000 cases, which he wanted to send to Tientsin. The delivery orders for the oil were made out in the name of Yah Chee. Plaintiff shipped the oil in a steamer belonging to Butterfield and Swire.  There was no written contract with the defendants; the arrangement was a verbal one. Plaintiff went in company with a native ship-broker to Butterfield and Swire and there saw Mr. Tomlin who arranged that the oil was to be shipped to Tientsin in three steamers, freight to be Tls. 3,000 odd, at so much per case. Defendants were to make an advance of Tls. 1.50 to witness, and defendants were to get a commission of one per cent from plaintiff. Plaintiff paid for brokerage. 

   Some arrangement was made by the plaintiff with the Standard Oil Co. as to the storage of the oil in Tientsin, and he sent a letter to defendants at Tientsin, which he obtained from the agents of the Standard Oil Co. in Shanghai, after first showing it to Mr. Tomlin. The advance was made to the plaintiff, in the presence of the broker, by Mr. Tomlin by cheque in the name of the broker. Plaintiff asked why the cheque was drawn in the name of the broker, and was told that as the oil had been shipped by the broker, the cheque was drawn in his name.

Plaintiff asked for the name to be changed but defendants declined to do so, but said they would write to Tientsin and instruct the firm there to pay the balance to the holder of the bill of lading. An employee of plaintiff went to Tientsin with the oil. Witness received a remittance of T. Tls. 1,500 from defendant's compradore at Tientsin. The money was remitted direct to plaintiff. He had received an account sales from Tientsin but had not received the balance due. The bill of lading was taken to Tientsin by plaintiff's employee. The broker became insolvent just before last Chinese New Year.

   Cross-examined - Witness was the only member of the firm Yah Chee. There were nine Chinese, of whom he was one, engaged in buying oil.  Witness bought 40.000 cases of oil from the Standard Oil Co.  for this partnership. Woo Chong-ching was the broker, and was also a partner in the syndicate and plaintiff paid him nothing for brokerage. Witness only knew that Woo 



Chong-ching traded in oil for the past two years. He had carried on a general trade for many years, and to witness' knowledge had had many transactions with Butterfield and Swire. Witness had not done business with the defendants until the affair which had led to this action. Witness saw Mr. Tomlin twice in connection with the shipment of the oil. On the first occasion the shipment was settled upon. The first advance was made on the 21st of the 10th Chinese Moon, (25th November,1896) about 8 or 9 days after the first lot of oil was put on board. The first shipment was made on board the Paoting, the second on the Szechuen, and the third by the Wenchow. The first shipment was made on the 24th of November. The chop on the mate's receipt (produced) was that of Woo Chong-ching. The receipt was dated 23rd Nov. Woo Chong-ching looked after the Customs business and witness made all the arrangements for the shipment. Witness was to pay the freight through Woo Chong-ching. 

   At this stage the Court adjourned until 10.30 on Saturday morning.

6th November.

   Upon resuming,

   Yuen Chi-hsien was called and said that he went to Tientsin during the 10th Moon of last year to dispose of the 30,000 cases of oil.  He took with him a letter of instructions from the defendants. Witness also took the bills of lading and delivered them to defendants' compradore in Tientsin.  The oil was all sold and witness received T. Tls. 1,500, which he remitted to plaintiff at Shanghai. He did not receive the full amount for the oil. The defendants' compradore at Tientsin gave him an account, which he delivered to the plaintiff. He did not know who the members of the plaintiff's firm were.

   This concluded the case for the plaintiff.

   In opening the case for the defence, Mr. Nelson said he would take the case on two points, one as regarded freight and the other as regarded a balance of account of the transaction in question.

   Mer. Wilkinson pointed out that no claim for freight was made in the answer.

   Mr. Nelson said Mr. Wilkinson had put in an account showing a certain balance, and he (Mr. Nelson) would show what that balance was made up from. 

   In November a man named Wang Yee-foo, trading under the name of the Wo Chong-ching, came to defendants and discussions took place, the result being an arrangement similar to the one set forth by the plaintiff. Mr. Tomlin would tell the Court that he did not know the plaintiff in the matter at all, and the arrangement was only with Wo Chong-ching.  The oil was shipped to Tientsin, and the details of the defendants' story were exactly the same as those of the plaintiff. 

   There was a balance due, which was partly made up by freight, Tls. 3,000 odd. There was another balance of something like Tls. 1,000 and Wo Chong-ching having had several transactions with the defendants, the latter suggested that that balance should go against the debt he, Wo Chong-ching, was then incurring. Wo Chong-ching agreed; the account was settled between them, and was put into another account. 

   Plaintiff had first told the Court that he owned the oil, then that he was a member of a partnership of which Wo Chong-ching was also a member. Upon that, Mr. Nelson held that Wo Ching-ching was the principal in the matter. After quoting from authorities on the relations of agent and principal the learned advocate said that in the present case Wo Chong-ching simply represented himself and nothing was told to Butterfield and Swire that there was any other partner in the transaction. As a matter of fact the existence of the partnership was only disclosed yesterday. The cheques were made out in the name of Wo Chong-ching and the name of Yah Chee had never appeared. Wo Chong-ching was simply the principal and the other people were the undisclosed partners. There was a balance of Tls. 1,0o21.76 due for freight which defendants had never been paid and he thought they had a perfect right to detain anything that came their way.

   Mr. Tomlin, manager of the shipping department of the China Navigation Company, said he remembered having dealngs last November with Wo Chong-ching about shipping some oil to Tientsin. He had had dealings with Wo Chong-ching for very many years. In connection with shipments of kerosene he was always treated as a principal. He saw witness about the middle of November and told him he wanted to ship 30,000 or 40,000 cases of oil to Tientsin an wanted an advance against it.

   One day Yah Chee came in  with Wo Chong-ching when the first shipment was made. Witness had never seen Yah Chee before and did not know his name.  He knew nothing of the partnership at the time. He did not remember plaintiff nor Wo Chong-ching bringing a letter from the Standard Oil Co. 

   There was some conversation between witness and the Oil Company with regard to the oil and upon that the letter from Butterfield and Swire was written. The Oil Company stipulated that the oil shipped should be only their own brands. The bills of lading (produced) were the bills for the oil, and were made out in the name of Wo Chong-ching. So far as his recollection served the cheques were handed to Wo Chong-ching personally, but plaintiff might have been present. This class of business was normally with Chinese.

   The brokerage of 1 per cent. and commission of 1 per cent was for brokerage to the Chinese and commission to the China Navigation Co. as agents. The freight was one or two candareens per case, or Tls. 3,762 in all; this was never paid by Wo Chong-ching or Yah Chee. It was deducted on receipt of the account from Tientsin. Subsequent to the shipment and prior to it the China Navigation Co. had transactions with Wo Chong-ching which very considerably exceeded the Tls. 1,051.76. The balance was applied for from Wo Chong-ching several times, but he declined to pay. He was told the freight had been deducted and the balance was put to his account outstanding. He raised no objection. Plaintiff came to see witness once or twice, but he was informed that the transaction was entirely Wo Chong-ching's and he declined to deal with him. All the negotiations were made by Wo Chong-ching. Plaintiff had nothing whatever to do with them.

   Cross-examined - Did not advise Tientsin about the freight not being paid, but had not the freight been paid no money would be paid to any one in connection with any matter that Wo Chong-ching had to do with. Wo Chong-ching was asked for the freight before the telegram  was sent to Tientsin stopping money to be paid.

   Wo Chong-ching's liability to Butterfield and Swire was very heavy.  Did not believe he was insolvent. His liability might at the time of the transaction referred to have been over Tls. 15,000. Did not know whether all the oil shipped was Wo Chong-ching's own, as defendants put up nearly all the money.  Did not think Wo Chong-ching  was the largest broker in Shanghai. He was a ship broker in an extensive way. Did not fear Wo Chong-ching was going to fail when the business was being transacted. Wo Chong-ching got a commission at the end of the year on shipments. If a man shipped his own goods direct it was not usual to pay him a commission except under exceptional circumstances. If Wo Chong-ching or any body else acted as a broker for a similar transaction, the commission would not be paid into the account sales. He was paid a general commission to cover the expenses of his staff, officer work, etc. 

   When Wo Chong-ching came as a broker he alone was recognised. When he shipped goods through his own hong he got commission. His commission was not a fixed sum, it was paid annually according to results. Cheques paid out by Messrs. Butterfield & Swire were always "to order." Did not see the cheque handed to Yah Chee. The letter written to Tientsin was written at Wo Chong-ching's request.  It made no difference to defendant whether he was paid in Shanghai or Tientsin. Wo Chong-ching often passed goods of other people through the Customs. No account having been settled up with Wo Chong-ching he was not credited with brokerage.

   Re-examined - The commission to Wo Chong-ching would be paid him whether the goods shipped were his own or not.

   Wong Yi-foo, trading under the name of Wo Chong-ching, said he remembered the shipment of the oil. It was made by the hong in which witness held five and Yah Chee held two shares. He asked for advance from Mr. Tomlin and got Tls. 1.500 per case but wanted more.

   Cross-examined - The Hing Li Oil hong commenced business in Nivember,1896. The oil was purchased after this. Witness had paid Tls. 24,000 into the company in cash. Had ceased to be a member of the hong when some cheques (produced) which were drawn by him were dishonoured by a native bank. The company went to pieces eventually. It only lasted for a little over a month.

   Mr. Nelson, in summing up, said it had never been proved, if the company had broken up, that the assets had been transferred to the plaintiff; but now it was sought to prove that Yah Chee was the Chinese liquidator of the company. Mr. Tomlin knew nobody in the transaction but Wo Chong-ching, and the latter bore out the evidence. Yah Chee never mentioned the partnership before and Mr. Tomlin never believed there was any other principal in the transaction than Wo Chong-ching. He asked for judgment for the defendants.

   Mr. Wilkinson pointed out that Yah Chee proved he went on more than one occasion to Butterfield & Swire in connection with this transaction, and, further, he (the learned counsel) held that defendants well knew dealing with him as acting for a principal. He thought there was no difficulty in believing that Yah Chee was the principal in the transaction. 

   There was also the evidence that Mr. Tomlin wrote a letter to Tientsin saying that the balance of money due in this transaction was to be paid to the holders of the bills of lading, whoever they might be. As regraded the question of freight, if defendants considered Wo Chong-ching good enough for the freight it did not matter to them whether he got the money from the freight firm. Their mental attitude would be that he had got his money and was going to settle up in six months.  He (Mr. Wilkinson) contended that defendants well knew Wo Chong-ching was a broker and that the principal might appear at any time. He asked for judgment for the plaintiff.

   His Lordship reserved judgment.

11th November.

   Mr. Nelson, in addressing the Court, said his Lordship had decided to hear some argument upon the point raised by Mr. Wilkinson, as to whether the holder, mentioned in the letter from Messrs. Butterfield and Swire, of Tientsin, was entitled to receive the difference between the advances made by Messrs. Butterfield and Swire, to Wo Chong-ching, or whether they were entitled to deduct their freight and their claim against Wo Chong-ching as against Yah Chee.  The paragraph in the letter was:

"The bills of lading are made out to your order, and on disposal of cargo please hand over differences, after deducting advances and all charges, to the holder of the bill of lading."

   As to the interpretation of the word holder in the letter, it must be construed either strictly according to the law, i.e., the legal holder of the bill of lading or must be construed simply on the wording of the letter. If the former, then the plaintiff could have no claim, as the defendants were the holders of the bill of lading, and they only could endorse over.  If the latter, then the word holder must be construed in connection with the facts of the case.  He contended that these showed that Butterfield and Swire were factors for the sale. If the word holder meant agent then Butterfield and Swire as factors had clearly a right to stop delivery.

   Having quoted extensively from legal authorities, Mr. Nelson said that if the word holder meant assignee, then the claim fell to the ground as there was no assignment in writing produced. If it were contended that the holder was a contracting party with Butterfield and Swire, where was the privity of contract, and first in whose name must the holder sue Butterfield and Swire; in his own or that of Wo Chong-ching? If in the latter then of course he took exactly the same positron as Wo Chong-ching, and consequently the defendants would be able to set off the claim against him. If the holder sued in his own name then it was contended that there was absolutely no privity of contract between the parties. 

   By the letter of agreement with Wo Chong-ching, Butterfield and Swire agreed to pay the balance to the holder - the person named by Wo Chong-ching, who would be the agent.  If not paid, must not the holder sue Wo Chong-ching and not Butterfield and Swire, as the contract was not made with the holder, who was not named specifically, and would not Butterfield and Swire be liable to Wo Ching-ching if liable to anyone? 

   The facts of the case, he contended, supported the view that the man who went with the bill-of-lading was simply an agent of Wo Chong-ching, who had gone up with another man to attend to the disposal of the oil and it was not correct that the letter amounted to an assignment of the bill of lading.

   Mr. J. P. Wilkinson briefly replied, his contention being that the letter amounted to an assignment of the bill of lading. A bill of lading to order or assign could be goof title to the goods in the hand of the assignee otherwise than by endorsement. He held that Butterfield and Swire, in writing the letter to Butterfield and Swire, of Tientsin, made a valid transfer and assignment of their rights to the holder of the bill of lading.  Practically, the letter was an assignment in writing accompanying a bill of lading, which had the same force as an endorsement in blank.

   His Honour, in reserving judgment, said he wished to thank counsel very much for the able way in which the cause had been argued. It had been quite a treat and enjoyment to have a question of pure law so well argued.

North China Herald, 19 November,1897

Shanghai, 18th November.

[As above.]

  His Lordship delivered judgment in this case which was to recover the sum of Sh. Tls. 4,962.69 and interest at the rate of eight per cent per annum, balance due on account of the sale of 30,000 cases of kerosene oil shipped to Tientsin by the plaintiff and sold by the defendants on his behalf.

   Mr. H. P. Wilkinson appeared for the plaimtiff and the defendants were represented by Mr. E. Nelson (Messrs. Johnson, Stokes and Master).

  His Lordship in giving judgment said - In this case Yah Chee, a Chinese merchant, sued Messrs. Butterfield and Swire, as the owner of certain kerosene oil, for the balance of money, the proceeds of the oil, which he says they owe him. At the trial it was proved that the defendants wrote a letter to their Tientsin House which directed the Tientsin House od Messrs. Butterfield and Swire to hand over the differences, after deducting advances and all charges to the holder of the bill of lading.

   It appeared to me then that if this was, as was contended by the plaintiff's counsel, a contract by Messrs. Butterfield and Swire with the holder or bearer of the bill of lading to hand over those differences, there would be an end of the matter. There would be no question then as to the payment of freight, because it appeared plainly, from the letter and from the account sales, that freight was not included in charges, and that therefore there would be nothing to be determined by the court except what was the difference after deducting the advances and charges and whatever payments had already been made. I therefore directed that question to be further argued because I did not think that Mr. Nelson had had proper opportunity of meeting it the point having been received by Mr. W. in his reply.  In consequence of the argument, and of my examination of the cases I have come to the conclusion that the letter does not constitute such a contract.   

   For the purpose of all contracts there must be a proposal and an acceptance, and besides the cases that were quoted to me as bearing upon this subject I have endeavoured to find others. It seems to me that the nearest approach to this letter is a letter of credit, and I find a case ex parte Asiatic Banking Corporation (L.R. 2 Chan. 391) the particulars of which are as follows:

"You are hereby authorised to draw upon this bank at six months' sight, to the extent of £15,000 sterling, and such drafts I undertake duly to honour on presentation. This credit will remain in force for twelve months from this date, and parties negotiating bills under it are requested to endorse particulars on the back hereof. The bills must specify that they are drawn under credit No. 304, of the   31st of October,1857."

Now there was a proposal, as it were, to invite anybody seeing that letter of credit to pay money upon it, and there arose then a contract between the givers of that letter of credit and whoever acted upon it, and upon that contract it was right that whoever did pay money to Dickson, Tatham and Co. should afterwards have their bill, drawn upon the Agra and Masterman's Bank, duly honoured. Lord Justice Cairns said that the letter shown to a person advancing money constituted, when money was advanced on the face of it, a contract by the Agra and Masterman's Bank to accept bills, or rather he agreed with the contention, and he held that the letter amounted to a general invitation to take bills drawn by Dickson, Tatham and Co. on the Agra and Masterman's Bank on the assurance that the Bank would accept such bills on presentation. He was of opinion that upon the offer in the letter being accepted and acted upon by the Asiatic Banking Corporation here was constituted a valid and binding legal contract against the Agra and Masterman' Bank. Now, there, you see, there was a proposal, an acceptance, and consideration given.

   In the present case I do not see that there is either a proposal, acceptance, or any consideration, and I do not think upon that letter, - although the letter itself has an important bearing upon the case in other aspects, - I do not think upon that letter a contract arose between Messrs. Butterfield and Swire and the holder of the bill of lading, Yah Chee. 

   I now come to the rest of the case, which is simply that Yah Chee alleges himself to be the owner of the oil which has been sold, and he says that he is entitled to the proceeds. I think that the evidence showed this: first of all Wo Chong-ching, whom the defendants allege they treated throughout as principal, was known to them as a broker. They were in this position that they knew that he might be either the principal or the agent. Then it appears from the evidence of Yah Chee that he actually was the owner; that he bought the oil; that it was delivered to him on delivery orders made out in his name; that he paid for it; and that he has remained, as he says, the owner of it to the end. Then it appears from the evidence that Mr. Tomlin, who acted for Messrs. Butterfield and Swire says that he did not imagine that Wo Chong-ching was the owner of the whole of the oil. Wo Chong-ching himself says that Mr. Tomlin knew that this oil belonged to a syndicate.

We do not know the particulars of this syndicate. It may well be that it was some kind of syndicate, which agreed that its members should purchase oil and sell it, and, when the results had been worked out, if there was a profit the syndicate should share in it, and, if there was a loss the syndicate should share in that. We do not know what the constitution of that syndicate was and the only distinct evidence I have got is the evidence of Yah Chee himself that he was the owner of the oil, that the delivery orders were made out in his name, and that the sellers of the oil treated him (Yah Chee) as the owner, and stated practically that he was the owner in the letter which they addressed to Messrs. Butterfield and Swire in Tientsin.  I consider that it is proved that he was the owner, and the next question that arises is - Did the defendants know anything about it?

   Then comes the importance of the letter from Messrs. Butterfield and Swire to their agents. At the end of that letter they say: "We enclose copy of Standard Oil Company's letter re storage," which shows that the writer of that letter, or whoever directed that letter to be written, knew the contents of the letter from the sellers of the oil to Messrs. Butterfield and Swire at Tientsin.  Mr. Tomlin says that he does not think he saw it. I think he must be forgetting.  It is quite impossible, it seems to me, that anybody should enclose a letter of which they summarise the contents, without having seen it. He may not have thought it important at the time, and it may have slipped his memory. The conclusion I come to is that Mr. Tomlin and Messrs. Butterfield and Swire did not at the time think it mattered to them in the least who was the real owner of these goods. They had the goods; they knew that the proceeds of the goods would recoup them not only their advances but their charges, and they did not seem to think it mattered what became of the balance - and, no doubt it did not matter to them in the least at that time. At that time they believed Wo Chong-ching to be perfectly solvent; they never anticipated that they would have to set off any money or goods against any amounts owing to them, and they did not think it mattered at that time who the owner of these goods was, and I think that they must be taken to have known that Yah Chee was, as stated in the letter from the Standard Oil Company, the owner of these goods, and, if they did not know it, it was simply that they shut their eyes to the fact. They considered that Wo Chong-ching was the person they were dealing with and they persistently shut their eyes to the fact that somebody else might possibly be the owner.  I think the position is this. Yah Chee has proved, I think, sufficient knowledge on the part of Butterfield and Swire, and I think therefore, that Messrs. Butterfield and Swire are bound to pay over the balance of this oil.

   But there comes the question of freight. Ass I said before, this would not have arisen had I now found that they were bound to pay this balance under the letter which they wrote to their agents in Tientsin. Now a different question arises. First of all they are entitled to the freight prima facie and prima facie the owner of the goods is liable to them for the payment, and it seems to me that the only way in which thhey would lose that right would be if they elected to charge the agent with it and give up their right against the principal, the owner of the goods, and I imagine that Messrs. Butterfield and Swire have throughout taken up this position:

"We consider that the owner of these goods is liable for the freight: as long as we treated Wo Chong-ching as owner so long we considered Wo Chong-ching owed us the freight, but if now the Court says we must consider Yah Chee as the owner, we still say just the same as before - the owner of these goods owes us the freight, and it is he, Yah Chee, who should then pay us."

   Inasmuch as Yah Chee has never paid over any money, it does seem to me that the abstract justice of the case is undoubtedly met by Yah Chee, upon whose goods the work has been done, paying to the people who did the work, namely, carrying it to Tientsin, the amount of the freight. Let us see whether, according to the cases, the defendants have done anything which precludes them.  I have looked at several cases on the subject and I found this strong case. A firm charged the agent, knowing the principal. The agent being bankrupt they proved against his estate. They got an adjudication of bankruptcy against him, and yet the Courts held that that was not a sufficient election, so they could still sue the principal. The case, I think, of most importance is Curtis v. Williams (L.R. 10 Q.B., 57). The headnote is:

The mere fact of filing an affidavit of proof against the estate of an insolvent agent to an undiscovered principal is known to the creditor, is not a conclusive election by the creditor to treat the agent as his debtor."

It is more the remarks of Mr. Justice Quinn which appear to me to be of importance, because he there shows what the Courts considered conclusive election such as to preclude - in this case it would be the defendants - from proceeding against the principal if they had taken some steps to show that they debited the agent with the amount due to them. He says:

"There is no doubt that in the absence of any alteration of account to the prejudice of the principals, the plaintiffs, on discovering that Boulton was merely an agent for the defendants, had a right within a reasonable time to elect to proceed against the defendants: unless in the meantime, with full knowledge as to who were the principals, and with the power of choosing between them and the agent, they had distinctly and unquestionably elected to treat the Agent alone as their debtor.

   Principals and agents were equally liable upon the contract, and the vendor had a clear option as to which of them he would hold responsible. The question is - what is sufficient to constitute a binding election in point of law? In general the question of election can only be properly dealt with as a question of fact for the Jury, subject to the direction of the presiding judge."

Now, I may say, that as I am sitting here as judge and jury, I find as a fact as a jury that Messrs. Butterfield and Swire did not elect to proceed against the broker and give  up their right against the plaintiff. And he goes on to say:

"There may no doubt be cases in which the act of the contractee in regard to his dealings with or proceedings against the agent, with full knowledge of the facts and freedom of choice, may be such as to preclude him in point of law from afterwards resorting to the principal. Whether in regard to proceedings taken against the agent by action at law anything short of judgment and satisfaction would be sufficient to preclude resort to the principal was the point raised in the case of Priestley v. Fenrie, which was cited on behalf of the defendants. There an action had been brought in the Supreme Court of Melbourne against the captain of a ship for the non-delivery of goods pursuant to a bill of lading, in which the plaintiff recovered judgment. A fresh action was afterwards brought upon that judgment in the Court of Exchequer at Westminster, and upon the judgment which was then recovered against the defendant (the captain) a ca. sa. was issued, upon which the captain was arrested and detained until he was subsequently made a bankrupt, and was discharged under the Bankruptcy Acts. 

   An action was then brought by the same plaintiff for the same breach upon the bill of lading against the shipowner (the principal) to which was set up, by way of defence, the previous proceedings against the captain, which were relied upon as a conclusive election in point of law to hold the captain alone responsible and discharge the shipowner. It was argued, on behalf of the plaintiff in that case, that generally resort might be had to the principal unless the agent had been so dealt with as to render such a course unjust, and that so far as legal proceedings against the agents were concerned, nothing short of a satisfaction as well as recovery of judgment would have that effect, and it was pointed out that the discharge of the captain by force of the bankruptcy law, and without the plaintiffs' consent, did not amount to satisfaction.

 The Court, however, there held that where an agent has made a contract in his own name has been sued on it to judgment, even withour satisfaction, no second action would be maintainable against the principal; but it is clear from the language used by Bramwell, B. in delivering the judgment of the Court that whilst it was considered that judgment against the agent, even without satisfaction, would constitute a conclusive election, yet that no legal proceedings short of judgment would have that effect, for he distinctly points out that by the word "sue" he means "sue to judgment." 

   Therefore it seems to me the mere fact of having debited this man Wo Chong-ching with the freight does not amount to an election.  I therefore think that the judgment of the Court must be for the plaintiff for the amount claimed, less the freight, and I believe that the amount for which judgment should be given is Tls. 1,200.96. 

   Now as to costs. The general costs of the cause, of course, go to the plaintiffs, but, inasmuch as the point with regard to that letter was raised by the plaintiff's counsel at a late period, when, in order to consider it it was necessary that there should be further argument and upon that further argument, Mr. Nelson succeeded, I think Mr. Nelson is entitled to the costs of that day, and therefore those costs will be set off against the general costs of the cause.

   Judgment accordingly.

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