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Colonial Cases

Raeburn v. Guedes, 1900

[spousal immunity - shares]

Raeburn v. Guedes

Portuguese Consular Court, China
30 April 1900
Source: The North-China Herald, 2 May 1900



Shanghai, 30th April.

Before J. M. T. VALDEZ, Esq., Consul-General.


In this action plaintiff sued for the delivery of certain Langkat shares mortgaged to the defendant who is alleged to have disposed of them.

Mr. E. Nelson appeared for the plaintiff, and Mr. C. J. da Silva, of Macao, appeared for the defendant.

Mrs. Sophia Raeburn was the first witness called.  On being sworn she said that she was the wife of a British subject and the wife of the plaintiff in the case.

Mr. Silva said that he had already put in his objection to this witness being called.

His Honour said that according to Art. 2511, par 4 of the Civil Code her evidence was not admissible.  She said that she was married to the plaintiff, so according to the law quoted she could not be a witness in the case.

Mr. Nelson said that he was aware of the inadmissibility in criminal cases but not in civil cases.  He wished the Court to make a note of his protest, and he reserved his right to discuss the point.

His Honour held that no protest was legal.

Mr. Nelson remarked that the other side had had plenty of time to object and only chose to do so now.

His Honour said that even if even Mr. Silva had not objected, he would have to rule that the evidence of the wife was not admissible.

Mr. Silva objected to both Mr. Raeburn and Mr. Nelson's presence in Court as they had been both named as witnesses.  Mr. Nelson could not appear in a legal capacity and as a witness at the same time.

Mr. Nelson said that Mr. Raeburn would go out while he gave his evidence.  He was not informed that the witnesses would be called according to the list.  Two of his witnesses who were brokers would not be able to be present that morning.  This was the last day of the month, a busy day with the brokers.

Mr. E. Nelson was then sworn.  He said that he was a resident in Shanghae and was on the roll of solicitors of H.B.M.'s Court.

Mr. Silva said that he objected to this witness as he was the plaintiff's lawyer and it was obvious that he had a direct interest in the case and therefore his evidence was not admissible according to Art. 2511 of the Civil Code.  There was also another forcible objection.  Mr. Nelson appeared to be a partner of Mr. Platt who was also the plaintiff's attorney and had stood security for the plaintiff's costs in the present case.  According to Art. 2511 of the Civil Code he submitted that Mr. Nelson's evidence should be excluded.

Mr. Nelson said that he was not a partner of Mr. Platt and had no direct interest in the case.  He was an employe of Stokes and Platt and as such, was in receipt of a monthly salary.

Mr. Silva said that there was no evidence of that before the Court.

Mr. Nelson said that he would give his evidence and leave it to the court to deal with as it thought proper.  It seemed to him that the other side was very much frightened\ to receive any evidence at all.  He thought he had the right to give his evidence which could be recorded together with the objection.

His Honour said that a lawyer represented a party in every sense of the word.

Mr. Nelson wanted a declaration from the Court that his evidence was not admissible.

His Honour said that he could not admit Mr. Nelson's evidence.

Mr. Nelson said that he was entitled to address the court on the point whether his evidence was admissible or not.  He had had no opportunity to address the Court.

His Honour said that Mr. Nelson was as much interested in the case as one of the parties.

Mr. Nelson said that Stokes and Platt were paid for the case.  He received nothing, so he was not interested in the case at all.  He had already sworn that he had no interest in the case.  Stokes and Platt signed the petition.  He was sorry that the Court would not take his word that he had no interest in the matter.

His Honour: According to law you must prove it by witnesses.  You can appeal against my ruling on the point.

Mr. Nelson said that it was a ruling on no evidence at all.  The argument was all one-sided.

His Honour said that no doubt the same objection would be made to Mr. Raeburn's evidence.  It would therefore save time by not calling him.

Mr. Nelson asked for an adjournment so that he might argue the point whether Mr. Raeburn could be admitted as a witness.

His Honour said that a party to the case could only give evidence when he was called by the other side.

Mr. Nelson said that he asked for time to argue the point.  The objection had never been made before.  He asked for an adjournment to a convenient day.  That was a courtesy extended by all the Courts.

Mr. Silva objected to the adjournment.

Mr. Nelson said that Mr. Silva could talk all the morning while the Court would not hear him.  It seemed ridiculous not to take Mr. Raeburn's evidence.

His Honour said that the law was never ridiculous and he was not presiding at any ridiculous proceeding.

Mr. Nelson said that he did not intend to apply the observation to the Court.

Further argument having been heard, the case was adjourned.

Source: The North-China Herald, 18 July 1900


Shanghai, 10th July.

Before J. M. T. VALDEZ, Esq., Consul-General.


Plaintiff in this action sued for the delivery of certain Langkat shares mortgaged to the defendant, who is alleged to have disposed of them.  The case was last heard on thee 30th of April.

Mr. E. Nelson (Messrs. Stokes & Platt) appeared for the plaintiff, and Mr. C. J. da Silva for the defendant.

The first witness called was Mr. W. Bates.  His Honour requested Mr. Nelson to ask questions in conjunction with the case only.  This Mr. Nelson agreed to do, saying he had only a few questions to put to Mr. Bates.

Mr. Bates, in reply to Mr. Nelson, said he remembered selling certain Langkat shares for Mr. Guedes, on the 6th June `858, by Mr. Guedes' orders.  They consisted if 9 old and 9 new Langkat shares.  The net amount they were sold for, less commission, was Tls. 2,405 7 mace.  They were paid by cheque, Tls. 2,227.50 on the 6th June, and a few days after the balance of Tls. 178.20.As far as he could remember, he received for his money twig scrips and two transfers.  He knew there were 18 shares, but could not tell how many were on each.  He did not know in whose name the shares were, but in the company's books the name was P. L. Raeburn.  The shares were transferred into his own name.

Mr. Nelson asked witness why the money was paid on different dates.

Mr. Silva objected to this question being put, and His Honour agreed with him.

Mr. Nelson said he would put it in another way - D\id Mr. Guedes request that a certain sum of money was to be paid on the 6th of June, 1858?  He explained that he wished to show where the money came from to pay a dishonoured cheque given by Mr. Guedes to Mr. Raeburn as mortgage money for the shares, and which was only paid on the 6th June, and quoted Article 4 of the petition where it said defendant paid plaintiff by his own cheque.

Mr. Bates said Mr. Guedes asked him to pay a certain sum of money that afternoon, and he did so, although it was not the usual course, as payment should have been made the next day.  This concluded Mr. Nelson's examination of thr witness.

Mr. Silva wished to know Mr. Bates' opinion as to certain hypothetical cases.

Mr. Nelson objected and s aids it was really a question of law and argument.  The shares were not to be transferred without Mr. Raeburn's consent in writing.  The question was out of order and a written document governed the transaction, which could not be upset by Mr. Bates' opinion.

His Honour said the question must be answered by the witness.

Mr. Nelson suggested, with deference to the Court, that when he questioned the witness and Mr. Silva objected he was compelled by the Court to quote the articled in the petition he was questioning about, and he certainly thought that Mr. Silva should be compelled to do the same.

His Honour insisted upon taking Mr. Bates' answer.

Mr. Silva asked Mr. Bates if he sold shares of Raeburn's name for Guedes, and if Guedes delivered on due date other shares whether he would consider the agreement carried out.

Mr. Nelson objected, stating that no shares had been delivered and none had been offered by Guedes.

His Honour requested Mr. Nelson not to interrupt.

Mr. Nelson said he understood he was entitled to object.

His Honour said the cross-examination was not on the petition, but on Mr. Bates' answers.

Mr. Nelson said that Mr. Silva's questions did not arise out of the petition or Mr. Bates' answers.  There was no question of redelivery of the shares.

His Honour said Mr. Nelson could ask questions of witnesses on the other side, and Mr. Silva was privileged to do the same according to Portuguese law.

The question and answers of witness were recorded by the clerk to the Court, and at this time Mr. Bates signed the document containing, this upon the assurance of His Honour that they were verbatim.

Mr. L. E. Waller was called, and Mr. Nelson asked him if he sold certain shares for Mr. Raeburn to Mr. W. J. Clarke in December, 1858, and how many.

Mr. Silva objected, and wished to know if the question was in order with the petition.

Mr. Nelson said he was claiming damages of Tls. 2,000, and he asked the question according to Article 2 in the prayer of the petition.

Mr. Silva said damages had not been proved.

Mr. Nelson replied that the petition clearly proved damage.  If he did not prove it in Court the claim would fall to the ground.

His Honour said that if there had been damage it must be proved afterwards.

Mr. Nelson requested His Honour, with due respect, in order to save trouble, to take Mr. Waller's evidence now, and if not in order the question could be discussed afterwards.

His Honour thought no benefit would be gained if Mr. Waller's evidence was taken.

Mr. Nelson said evidence must be given to prove his claim for damages before judgment could be given.

His Honour would not admit this witness' evidence at present.

Mr. Nelson stated he was sorry he had brought witness, but he had done sol according to all the law he knew, and regretted it was against Portuguese law - it was due to his ignorance of it.

Mr. Waller complained that he had lost a very important sale of Langkat shares, and wished to know to whom he was to present his bill for damages.  He was a professional man and could not afford to throw his time away.

Mr. Nelson explained that Mr. Waller had appeared, as it was saving trouble to the Court to have to write to the British Consul to have him brought here, and he (Mr. Nelson) asked the Court's opinion whether if his client plaid a certain sum to Mr. Waller and he was called again, would his Honour consider him an interested witness.  He quoted the fact that he himself had been considered an interested witness.

His Honour said he would not be considered so.

The case was adjourned pending the appearance of an important witness on defendant's side.

Source: The North-China Herald, 12 September 1900.


Shanghai, 7th September.

Before J. M. T. VALDEZ, Esq., Consul-General.


The resumption of the hearing of this case (a claim for the delivery of certain Langkat and Sumatra shares mortgaged to defendant who is alleged to have disposed of them) came on on Thursday, Mr. E. Nelson (Messrs. Stokes and Platt) appearing for the plaintiff.

Mr. Nelson said that at the last hearing a Mr. Silva had been there ands he asked was he still in the case.  His name was on some of the documents with that of Mr. Guedes.  Mr. Silva had abandoned the case and he had only asked as a matter of form.  A document was then put in by Mr. Silva saying he had resigned.

Mr. M. F. Dzouk was then called and examined on oath.  He said he had no interest in the case and was not a friend of either party.  He was often at defendant's office, at least once a day.  He had seen Mr. Raeburn at the office once or twice.

Mr. Nelson objected to a question begun by defendant, saying that he had been bound down so strictly by Mr. Silva that he now asked for the strict letter of the law.  He had been bound down in all sorts of troublesome ways.  The question was not allowed.

Plaintiff admitted that there was a letter which had been filed after being shown by him to Mr. Guedes.

Mr. Dziouk said that the question of margin on loans on shares was entirely a matter of agreement between the parties concerned.  He knew no reason why there should be a special margin on Langkats.  Mr. Nelson asked no questions.

Chu chi-sang, living in Hongkew, said he was a friend of Mr. Guedes and was his bank shroff.  He had no direct interest in the case, but was doing business with Mr. Guedes and went to his office on matters of business.  Witness, in reply to Mr. Nelson, declared he was speaking the truth.

Mr. Nelson objected to him as not being a competent witness, as his interest with Mr. Guedes was so great as to prevent him speaking the truth.

His Honour said that if Counsel had any allegations against witness he would have to prove them.

Mr. Nelson. - Then I would have to take him to the Mixed Court.

Eventually the examination was resumed.

Witness said he had lent Tls. 5,800 to Mr. Guedes.

Mr.  Nelson objected to some further questions asked witness by defendant, as being in an improper and leading form.

A long discussion then ensued regarding the legality of certain questions and answers.

Witness, continuing, said hjis master wrote to Mr. Guedes in June last demanding the money lent.  His master was Un  Yo-cheng.  Mr. Guedes asked him to go to Mr. Raeburn about the money and Mr. Guedes authorised him to sell some Langkat shares.

To Mr. Nelson - He lent Mr. Guedes Tls. 5,800.  It was Chinese bank money, not his.  He was shroff of the bank.  Mr. Guedes gave him 40 Langkat shares and 70 Sumatras as security for the loan.  This was entered in the bank books.  The Chinese did not give or take paper in a contract, and the bank gave no receipt for the shares; they made no record of the numbers of the shares.  Some were sold to Chinese brokers and others to Mr. Thorburn.  Mr. Guedes asked to have the shares back in five months, but he had said he had not got the money.  At present Mr. Guedes still owed him Tls. 200.

The case was then adjourned sine die.

The North-China Herald, 20 March 1901


Shanghai, 19th March.

Before J. M. T. VALDEZ, Esq., Consul-General.


Plaintiff in this case sued for the delivery of certain Langkat shares mortgaged to defendant who is alleged to have disposed of them.  The case was last heard on the 7th of September last.  Mr. E. Nelson (Messrs. Stokes and Platt) appeared for the defendant.

A number of documents which had been filed in reference to the case were first read by the interpreter and His honour proceeded to ask plaintiff and defendant several questions for his guidance in forming a decision.

Mr. Nelson said he had come to the Court expecting to hear judgment.  He was not prepared to go into any further argument.  He understood all the documents had been closed.  His client was quite willing to hand over the money in exchange for the shares.  He had never refused to do so.  His client claimed the amount of the mortgage, the interest and the calls due on the date when the shares were due.  He thought it was a matter for some prominent member of the Sharebrokers' Association.

Mt. Guedes rose and wished to read some documents.

Mr. Nelson objected saying he had come for judgment and if the case was to be re-argued it was no judgment.  However, he was prepared to leave the matter entirely in the hands of the Court.  He further said that in that Court he had, according to Portuguese law, delivered documents a little more than in an English Court.  He thanked His Honour for the assistance rendered to him in a law not his own.  It seemed to him that his client had done his best to carry out a legal contract.  He was aware at the time of the transaction between his client and Mr. Guedes that Mr. Guedes was seriously involved and could not pay on certain Langkat shares, and his client when he offered the money found the shares he had mortgaged had been sold.  Before that Mr. Guedes had never given the slightest intimation to his client.  His client was an honest man of business and it only showed dishonesty on Mr. Guedes' part.  He had read the whole of the quibbling defence put forward by Mr. Guedes and it did not contain one paragraph or one word of a man of honour.

Mr. Guedes was permitted to read a statement setting forth is action in the transaction showing that Mr. Raeburn had asked for a little time longer.  He had finally consented if something was paid on account.  This Mr. Raeburn promised to do, and he then called on Mr. Raeburn who told him that he could not pay as he had no money.  Mrs. Raeburn handed him a cheque which she said was her own money.  Plaintiff then said to him that it would be better to draw up a new contract and he had that contract in plaintiff's own handwriting, and plaintiff said that if the shares fell Mr. Guedes could use his own discretion.  He defied Mr. Raeburn to say different, it was before Mrs. Raeburn.

Mr. Raeburn here interrupted by saying he was prepared to swear that the statement was untrue.

His Honour permitted him to take the oath.

Mr. Guedes went on to show that he had obliged plaintiff in another matter.  He then quoted a paragraph from the Portuguese Code of 1860 showing he had a right to sell the shares without any notice before six months and he thought that sufficient for his Honour to decide in his favour.  He claimed Tls. 1,500 expenses, which he had had to pay for a lawyer, besides another sum of Tls. 934.

The proceedings at this stage were adjourned.

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