London, 23rd November, 1877.
On the Appeal of Joux Samvrt Swine AxD mens v. Rowent Fuancis, from H.Af.
Supreme Court for China and Japan, at Shanghai, Present:—Sir James W. Colville, Sir Barnes Peacock, Sir Montague E. Smith, Sir Robert P. Collier.
The facts material to the decision of this may be shortly stated. The Plaintitts were general agents at Shanghai of the China Navigation Company, and employed local agents at various places in China, their local agent at Riakiang Ueing Mr. Robert Francis, the defendant. In paragraph 4 of the case it in stated:—''It was part of the business of the general agents, that is, the Plaintiffs, (on their own account as a firm, and not as agents for the Company,) to make' advances through the Company's local agents to Chinese merchants upon goods intended for shipment, or in course of shipment, by the Company'ssteamers, Buch advances were from time to time made through Messrs. 1%, Francis & Ca. to. merchants and others shipping, or intending to ship, from the port of Kiukiang. They were made either with ayonoremittel for the pur. Proceeds of drafts drawn in respect of them by the general agents, or with the Mesers, Francis & Ca. upon the general on sycee. The case goes on to state, in pararaph 9, Early in April, 1876, and while r. Francis was still in Kiukiang, the general agents received from Kiukiang a final cash account from Messrs. R. Francis & Ca,, under date of 3st March, and signed pr. pro. R, Francis & Ca., W. Hy. Shaw, Agents, N. Ca.' In thie account Messre, R. Francis & Ca. credited themselves with the following itema 1876, March 26th: K. Ts.
By advances, Yocksing, on paper... 2,600 Loong'kee,—... 3,200
Kiukiang Tis... 5,800 bad in the ordinary course of business This in effect was a representation that,
vanced the sums named upon two parcels of spor which were awaiting chipment by one of the Company's steamers, and the general agents were entitled to assume that the goods in the Company's hulk or godown, or rwise under the control of Company. For the purposes of this ease it is to assumed that no such goods were ever received or stored in the aforesaid hulk, nor were the goods ever under the control of the said Company, or the said Messrs, Fr Ca, At the came time that the account mentioned in the last paragraph was rendered, Mr. W. H. Shaw, in the name of Mess R. Francis & Ca., drew upon Messrs, Butt field and Swire for the balance and the draft was duly honoured.
lordships have to observe that the appear letly upon what day it or when it became duo and was eventually paid, or what was the amount of it. Only this Appears, that it was drawn for the balance of the account, and that balance was improperly against the Plaintiffs by the eum of 5,800 tael The case goes on to say that the date of the payment must be taken to have been made on the 2nd, April, 1876, probably. the date on bill was drawn. "here follows been advanced only inference propriated them to hi Chi in November Their Lordships are of opinion that it was within the scope of the authority of Mr. Shaw, as that expression has been defined i many cases, to make out the account which spoken of in paragraph 9; to insert in it the advances made on goods on account of the Plaintiffs; and to draw the bill for the purpose of covering the balance of the account. All thia was in. th course of business, try of the ad would have been within the #00 authority to make an advance of that kind, and to enter it in the account when mad the case, therefore, in their Lordships' opinion, falls within the' principle which is well stated by Mr. Justice Willes in the case of Harwich v. The English Joint Stock Bank, 1, Law Reports, 2 Ex.. 259, where he observes—''In all these cases it may be said, as it was here, that the master had not authorised the act. Ibis true he had not authorised the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in whi agent has conducted business which it was th Plage him fu." This doctrine has been also laid down by this Board in the case of Mackay v. The Commercial Bank of New Brunswick, 5, Law Reports, Privy Council Appeals, 412.
Their Lordships are disposed to infer from paragraph 14, that Shaw, instead of advancing the 5,800 taels, which he pretended had been advanced to merchants upon cargoes to be shipped, in reality appropriated so much of his master's money to his own use, and having 80 misappropriated it, drew a bill in the name of his master and in the course of business upon the Plaintifis for replacing that money, and that the Plaintifis have repaid to Mr, Francis the money of his own, which had been misappropriated by his agent. But oven if it be assumed, as perhaps it was in the Court proceeds of the drawn haw appropriated onl) ill which had been Tegal bearings of the case. The bill was drawn by him in pursuance of a general authority which he had to draw on behalf of Francis and Ca., whose sole representative he was in the business which Francis carried on at Kiukiang; it was paid by the Defendants to the account of Francis and Ca. for. a general balance, which was improperly creased by the amount of 5,800 taels, The proceeds of this bill belonged to Francis and taels paid to Francis and Ca. by th Ca,, and the case comes to this, that 5,800
Plaintiffs without any consideration wha ever, and that Shaw fraudulently misapprothat money. In either aspect of the case it appears to their Lordships to fall within the authority of the case which been referred to of Barwick v, The English Joint Stock Bank, as well as within the authority of Mackay v. The Commercial Bank of New Brunswick, Their Lordebips have only further to observe that it would appear to them that the Court below was somewhat mised by the asoumpconcerning the relations of applies to this case, If the in had arisen with respect to an actual mission of bullion which had been rations of the Court it appenra to is governed by other considerations, to which they have ree ferred.
Under these circumstances their Lordehij humbly adi judgment of the Court below be that judgment be entered for the Plaintiffs for 6,0734 rela. (Shanghi currency) in addition to the sum for which it entered, together with culated, in the Supreme Court The Appellants will have the costs of the appeal.
Text read from the printed page and cleaned; old type leaves the occasional error.