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Colonial Cases

Barnard v. Wilkin, 1870

[commercial law]


Barnard v. Wilkin

Supreme Court for China and Japan, at Kanagawa
Hornby CJ, 20 September 1870
Source: Japan Weekly Mail, 24 September 1870, 452-454


In H. B. M. Supreme Court.

Kanagawa, 20th Sep., 1870.

Before Sir Edmund Hornby, Kt.,

Chief Justice.

Barnard v. Wilkin.-This was a suit to recover an assignment of land alleged to have been fraudulently obtained by defendant from the plantiliff, and possession of certain property, alleged to have been wrongfully removed from Mr. Barnard's house during the time that the defendant held a Power of Attornev to act for him. Mr. F. J. Barnard conducted his own case. Mr. Johnson appeared on behalf of of [sic] the defendant, his clerk.

The evidence as will be seen was decidedly conflicting-so much so, that on one side or the other, direct perjury must have been committed, and the Judge felt inclined to send the question of credence to be decided by a jury.

Plaintiff's opening statement was neither concise nor lucid. From it, it appears that Defendant was connected with him, and entrusted with a power of attorney by him during his absence at Shanghai under which he disposed of a number of plaintiff's goods; afterwards on his return he found the defendant had a quantity of property at Mr. Johnson's chambers which he had not disposed of amongst other things are rug, some books, curiosities, pillow-cases, some brandy, etc.

He went up one night to Mr. Johnson's chambers to leave a note for Wilkin, the door was ajar and does he came to know that his property was there. He had asked him several times to give an account of what he had; defendant offered to give them, if plaintiff would pay some money he said was due to him, and had tried frequently to compromise the affair even on himself paying money which he (plaintiff) had declined to do. To secure defendant certain money which he was to pay for him he agreed to give him a deed of mortgage on certain property and thought he had signed such a deed, instead of which the defendant took advantage of his confidence to place before him for signature a deed of assignment, thus committing a gross breach of trust. He thought that his Lordship, taking into consideration the evidence he should offer, would decide that the deed was a fraudulent one and that the defendant's whole proceeding would show his consciousness of wrong doing. Wilkin rushed in to him at Driscoll's with the deed to be signed and plaintiff foolishly signed it without reading it. He had never had it in his possession and never heard it read except once before Mr. Robertson, when he first learned he had made an absolute deed of assignment. Wilkin now claimed $779 of him, which sum was made up of fictitious amounts. One was balance on contract for No. 160 for which plaintiff alone was liable, whilst other sums for which he had taken credit had never been paid. He had sold a saddle which had just cost plaintiff $40 to his employer Mr. Ross Johnson for $10, who in reality, plaintiff thought was worse than defendant. Mr. Barnard here went through a bundle of letters. The first was one written to him when he was at Shanghai on the 4th July. It stated that funds did not come in and Mr. Campbell declined to "cut his throat" for him, that Mr. Shand was very much annoyed at the reports which had appeared in the Herald, had become very thick with Ross Johnson, and declined to make further advances. The Japanese creditors used to come in crowds, in regiments, with and without chits, and the Saibansho had taken the matter up, so the writer borrowed some money of a friend and paid of the most clamorous.

As Kirby and Johnson were pressing for their claims (the latter's bill of $l80 had been reduced on taxation to $116; though as he objected to the writer's appearing on Mr. Barnard's behalf, the writer had to employ Mr. Mark's service) he had no alternative but to put the goods up to auction-as would be seen, with very bad results. He forwarded an account. The articles marked in red were sold at the sale of Mr Hoyt's furniture. There then followed advice to Mr. Barnard to stay in Shanghai (when he might get forwarded from his rents about £5. 5s., per week,) and not to come back, as Johnson was fast becoming a favourite, and had shown him retainers from Jardine. Walsh, Aspinall, and other principal houses. If Barnard would only decide to stay in Shanghai his personal effects and library should be sent him. There were pressing creditors here who threatened all sorts of things, and if he came back summonses would pour in from all sides. He should speak to friends and look at things in a proper light.

On this letter Mr. Barnard observed that the pressing creditors were about $100, the only one who pressed him was Mr. Kirby: but Wilkin desired to keep him back with the object of using his property as he liked. The account furnished on the 19th July showed claims for freight on a carriage, which not he but Mr. Kirby, had paid, salary for himself, though plaintiff had never engaged him, as he was suspended from practice, and an amount of $25 for legal expenses. The other debts he should have repudiated. He had sold property value $255, which was more than enough to pay these pressing claims. After his suspicions of Wilkin were aroused, he went to see him at No. 61 and asked for his title deeds. Wilkin said "I haven't got them "-" Then you ought to have them: Has Johnson got them?''-'' No."--Who has?" Wilkin replied "Mr. Townley. I put them in a little box and asked him to take care of them in his safe." Plaintiff immediately went to Townley and asked if he had them? Mr. Townley replied that he had not. Plaintiff went back to Wilkin, reproached him for deceiving him, and wrote a letter demanding restoration of the goods. After some delay defendant replied that the amount of his liabilities on defendant's account were $779, upon payment of which sum, and the execution of a proper deed of release to be approved by Mr. Ross Johnson at plaintiff's expense, he would give up the goods in his hands. Any further communication must be in writing, care of Ross Johnson Esq. In this bill he had charged $35 for "Solicitor's cost." Plaintiff asked who was the solicitor. Defendant replied "myself." Plaintiff wrote in reply on the 30th July that he would accept the offer and pay what was claimed as due on a list of the goods held being furnished him. After further correspondence, on the 8th August he wrote saying that he would with withdraw the charge against Wilkin at the English Consulate, if the deed of assignment were cancelled, (which defendant was aware had been obtained from him without consideration) the title deeds returned, and a list of his chattels detained by defendant. Then if any claim were due he would discharge it.

Mr. Johnson said that the greater part of the prayer of the pleading was already complied with. The presence of the plaintiff itself cancelled the power of attorney, and the only issue was the deed: whether the plaintiff read it or not was a matter of no consequence, though, as his Lordship would see, the blanks, were filled up in plaintiff's hand-writing.

Defendant being sworn, said he was clerk to F. J. Barnard at a monthly wage of $80. When he left for Shanghai he left a Power of Attorney with him to sell a portion of his goods and pay certain debts here due to tradesmen. The intention of the assignment meant that Barnard sold the lot to him for $500 which did not appear in the account, $300 were paid at different times and $200 at one time-either the day before or the day the deed was signed. The $200 were in two notes of $100 each. The rest were paid before the 29th July at different times. He thought he had a witness who could prove the payment of $200.

Mr. Barnard answered that it was perfectly untrue. He never had any cash of him.

The Judge asked witness if that amount of $500 had nothing to do with the general amount, why did he put it in to the credit of the plaintiff, when he had already paid it over to him?

The witness said that it was in order to explain to Mr. Barnard that if he paid the amount for which he was liable, he would then only have $100 in return for the $500 which he had advanced. The land was not pledged to him but sold.

The Judge: Then why do you bring it in on the credit side of the account?

Witness: Because he said it was worth more than the $500 I paid for it.

Mr. Barnard said this was utterly untrue.

After long querying about this account the witness said he could prove payment of the money by witnesses,-Mr. Rangan and Mr. Symes.

The Judge ordered them to be sent for.

E. Powys deposed that he remembered Wilkin coming into his shop at about 5 p.m., asking him to sign a paper. Mr. Barnard asked his partner to witness his signature, but as he was not a British subject witness witnessed the signature. It was not read. Witness was sure that there was nothing more done to it. Witness did not see the date and amount then written in by Mr. Barnard, only the signature put. His partner asked what the document was, he said he did not know. As he was reading it Wilkin put his hand over it and said "we only want on to witness the signature." He did not remember whether Wilkin said "Mr. Barnard knows all about it, there's no necessity to read it." When they were in the shop Wilkin promised to pay an account next morning. From conversations which passed he understood the object of the deed was that Wilkin should pay other accounts owing by Mr. Barnard. Mr. Wilkin had the document in his hand when he came in. Witness told his partner he thought it was a mortgage as security for the money to be paid by Wilkin. The latter did not pay the bill, and they had to sue for it. Mr. Barnard also left his watch and chain as security. Plaintiff said to defendant that he was going to make the mortgage, and Wilkin would pay his debts, and on that witness withdrew the summons. Wilkin came in next morning, and said he would let him know whether to go on or withdraw the summons. The amount of the debt due to witness was $129. Witness sued for it in accordance with plaintiff's request. When Wilkin was living in plaintiff's house he said he could not pay the account, as he had no money in hand. No money was paid to plaintiff in witness's presence.

Defendant's examination resumed: He distinctly swore that he paid $500 for this lot of land and could prove the greater part of it. He was aware of the penalties of perjury, and still distinctly swore he had paid the money. The date of that deed was before Mr. Barnard went to Shanghai, but it was not signed till after he returned. The date of the deed and the amount and signature were in Mr. Bernard's hand writing. Mr. Barnard instructed him to draw the deed in those terms. When he made it out he was not aware the land was mortgaged. He knew the Hongkong Bank had the deeds, but not that they had a mortgage upon them. On that account there was still $158 owing to him. If Mr. Barnard paid him he would give him up some jewellery and curios that were still in his possession. He did not take away any wines or spirits from the house, but took away all the things not included in the bill of sale. He left the premises because bailiffs were in possession for 8360. There was a claim against him for $500 from Mr. Shand and $1,600 from Mr. Aspinall. Johnson asked him to buy a saddle for him, and on Mr. Townley's valuation sold Mr. Barnard's to Mr. Johnson for $10.

Cross-examined.-When he came to Yokohama he slept upon a bed-not a mat. He paid $25 per month for a small three roomed house from Leibermann. He paid the $300 in more than two sums; he paid $100 to defendant the day after he returned from Shanghai. Mr. Rangan could prove the payment of $200 to him, The $100 was paid in Mr. Barnard's own house at No. 23. He thought it was the day after he returned from Shanghai. Plaintiff was crying like a ohild behind the door. There was a lot of Japanese creditors outside. Witness had a banking account. He commenced it some time in June. His wages with Mr. Johnson were $100 a month. He had been with him about a week when he paid half the $100. He did not get a receipt for it. Plaintiff was too excited, crying like a child, because he could not pay the men. He gave the money in two $50 notes. He did not enter everything in his diary, it might be there. He could not save what the next amount was. It was either $50 dollars or $75. Plaintiff acknowledged the receipt of it a note, which witness has destroyed. He had about $400 letter from Mr. Barnard. He sometimes kept on account of what amount be paid him. He could not save what the next amount was. He thought it was paid in Mr. Symes' presence-another clerk of Mr. Ross Johnson's. He could not remember the dates, nor the amounts, nor did he keep a diary. He brought £500 from New Zealand. He opened a banking account from the middle of June, but did not put £500 in.

To the Court:-The £500 in his account rendered at nothing to do with the debts he had paid. After the deed was signed Barnard went with him to the place and told the tenants to leave, as witness had bought the property. A man named Loxton, another named Bell, a saddler, and some other person were then there. Plaintiff gave them notice to leave. saying he had sold the property to witness, who wanted possession (Mr Barnard denied this.) Witness thought the two $50 notes were paid on the 20th July. The whole of the money, $500, was paid between Mr. Barnard's return from Shanghai and time time the deed was signed. The deed was not signed on the day it was dated: for some reason or other Mr. Barnard wanted to put in a fictitious date. The deed was signed about the 20th.

Mr. Barnard said that he returned about the 25th July.

Witness said it was about a week after he had come up. At that time Mr. Barnard had paid his passage to San Francisco in the Joachim Christian and took his baggage off from the ship. The $200 was paid to Mr. Barnard. It was to have been paid to Driscoll, but Barnard received it himself.

Plaintiff:-When will this perjury end? It's enough to make one's blood boil.

Mr. Symes said he could not say he had ever seen Wilkin pay any money to Mr. Barnard, but he believed it had been done whilst he was in the same room. His reason for believing this was that when Wilkin came to Yokohama he was worth a considerable sum of money. He was not now; and witness did not know what he had done with it except pay it to Mr. Barnard. He believed Wilkin once left his house to go to Mr. Barnard to pay some money, but about what date he could not say. When he came to Yokohama he went with Wilkin to a small house of Liebermann's. They paid $20 rent for it. He once saw Wilkin give plaintiff some money one day at No. 23. He heard the chink of it in his hand. He saw certain property of his sold in New Zealand, and saw the money in sovereigns in his possession in Hongkong. There was about £200 taken there in a lump. They had no bedstead when at Liebermann's. They had three little rooms there. Could not say where Wilkin changed his sovereigns. He could not tell how many law books there were at No. 61. There might be fifty-not fifty that came from Mr. Barnard's place. He would not swear there were not twenty. He thought there were a few curios at 61 which belonged to him. They were removed from No. 28 before plaintiff's return from Shanghai. He did not know whether Wilkin kept an account, or diary. He kept several books he did not know anything about-they might be accounts. There might be such a thing as a white carriage rug, at No. 61, which belonged to Mr. Barnard.

Mr. Barnard stated that Mr. Hill held him responsible for the books, of which Mr. Johnson had secured about fifty of the best. Mr. Hill had bought all his library, and Wilkin, privily to him, removed a large quantity of the best, of which he or Mr. Johnson was still possessed.

The latter handed in a letter from Mr. Shand asking him to hold them till authorized by him to deliver them up.

Mr. Rangan deposed that he had seen Wilkin pay Barnard money on two occasions, but did not know the amount. He never remembered a letter coming with dollar notes in it. Mr. Barnard several times wrote notes to Wilkin about the latter's paying amounts for him.

The witness Symes recollected Wilkin telling him he had sent the $200.

Witness Bangan continued. When bills came in he often saw Mr. Barnard write chits to Wilkin, saying he had got his land and would pay his debts.

Witness Wilkin re-examined:-He never told plaintiff that Mr. Townley had the title deeds. Barnard came up using very abusive language to him and he threatened to kick him down stairs if he didn't go. He must have been mad if he wasn't drunk. He had accounted for the $500 as fully as he could do and considered the deed quite sufficient receipt for the $500. He had advanced about $150 on the jewellery, which he believed was worth $50. Witness could not say whether he had the contract with the Japanese contractors, unless he looked amongst his papers. He had been served with notice to produce them. He engaged with Mr. Barnard at $80. He left when his month was up. Mr. Barnard wrote from Kobe, to say he was going home to England, and wanted him to raise $500 for him. He believed he had the letter and showed it to Mr. Johnson when he entered his service. He became liable to Mr. Kirby for Mr. Barnard's debts in this manner. He borrowed $200 on the bill of lading of Mr. Barnard's carriage under the power of attorney, and would have to make up any deficiency if the amount realised by its sale fell short of the sum borrowed. He brought the money from New Zealand and changed £50 at the Oriental Bank on arrival, and had changed altogether about £182 at different times. The Chinese there changed them for him. Mr. Symes changed the greater portion of them--he supposed at the same place. He asked Mr. Barnard what authority he had for going to Mr. Townley and asking if he had the title deeds there. He wrote all the letters to offer to compromise the matter because it seemed to be such a frivolous matter. He offered to refer it to arbitration, but Mr. Barnard refused "unless the title deeds were given up which he had stolen from the Honking Bank."

Mr. Barnard sworn: He filled in the blanks of the deed, but did not believe it was a deed of assignment. Mr. Wilkin knew that the property was security for a promissory note of $400 held by the Hongkong Bank. Wilkin promised to pay the Bank the amount of this note. Wilkin asked him to get the title deeds from the Bank that he might investigate the title, and Wilkin kept them. The Bank did not give them to him to use for the purpose of a further mortgage on it, and having confidence in Wilkin defendant made out a deed which plaintiff believed to be a deed of assignment, but was in reality the mortgage, he said "if you give me this I'll be able to pay all these small debts and have a balance in hand." Wilkin registered it unknown to him and charged him with the cost. The deed was a fraud upon him, and defendant was just as well aware of it as he was. "I did not pay the money that is why I would not compromise, I wished to put myself right with the public and the Bank." Witness had gone round to every man he owed money to, and got them to sue him. He kept accounts: with regard to these things there were only a few small items not amounting to $60. He had not paid anything since. He had paid $100 for his passage to San Francisco in a sailing vessel, and sacrificed about $25 to get the rest back, which had since gone in the form of hotel bills. He never thought of engaging Wilkin as a clerk. He had come into the Court as a friend under the power of attorney. In point of fact it was false that Wilkin ever paid him at the time he mentioned the various sums; and true that he never got a penny of them. The deed was to be by way of mortgage; because defendant said if he gave him that security it would enable him with the assistance of Mr. Johnson to pay of these small claims and provide sufficient money for him to go home. He never at any time saw any draft of the deed until it was brought into Driscoll's shop by Wilkin and was there executed by him without reading, his confidence in defendant being unlimited. Defendant knew that he owed a promissory note to the Hongkong Bank held on the security of these deeds, and that he (plaintiff) never intended the Bank to be prejudiced by their temporary loan of the deeds to him. He refused to compromise the case, because he wanted to be set right with the Bank and the Public. He then contended that the accounts were fictitious, and declared that he never had money from Wilkin, except when he might have borrowed two or three dollars for Court fees. Wilkin was comparatively a pauper when he came to Yokohama. Witness gave him a seat at his table, but told him he was debarred here and could not enter into any contract for his services till he was allowed to practice. According to his own account it was distinctly shown that there was no intention on the part of the defendant that there should be an absolute assignment. Witness then proceeded to account for two $500 bills of fictitious dates on the ground that they were intended for the Defendant to get discounted, and the latter suggested they should be antedated.

An offer of compromise on the lot being handed over was here made. The Judge observed that the terms that Mr. Bate should settle what was owing to defendant would place the Registrar in the same position as he himself then was. All the dates to the documents appeared to be fictitious and he felt inclined to send the question to a jury to decide.

Mr. Johnson said in answer to his Lordship that he was present when the former application was made. The clear understanding then was, most unquestionably, that this deed was made to enable Wilkin to pay off the debts. It was the first time he had heard of these fictitious dates. He considered these glaring improprieties, disgraceful to either side.

In reply to the Court, Constable White stated that he had offered Mr. Barnard $800 for the lot, but the holder wanted $1,000 for the adjoining lot-of the same size. Mr. Marks wanted $1,200.

Judgment reserved.


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