William Broughton (Bolton) SPRATT [1827-1884]

SUPREME COURT.

IN APPELLATE JURISDICTION.

(Before the Hon. Sir G. Phillippa, Chief Justice, and his Honour E.J. Ackroyd, Puisne Judge, sitting as the Full Court.)

Monday, August 10.

A.E. SPRATT v. CHARLES CAIRNS AND CREASY EWENS.

This was an appeal from decree made in Chambers by the Puisne Judge.

Dr Ho Kai appeared for the appellant, Mr Creasy Ewens, who instructed counsel on his own behalf.

Dr. Ho Kai said he appeared on behalf of the defendant, Creasy Ewens, in Suit No. 41 of 1885, in the matter of the estate of the deceased William Bolton Spratt, in which Anna Eulalia Spratt was the plaintiff, and Charles Cairns and Creasy Ewens were defendants, to mode the Court that the decree or order made by Mr. Justice Ackroyd on the 13^th July, be reversed, and that it might be adjudged that the plaintiff’s summons should be dismissed with costs. The notice of motion had been served on the Registrar and also on the plaintiff, through her solicitors, and the hearing of the motion was fixed for to-day. Dr Ho Kai said that before he went into the arguments it might be as well for him to give a summary of the case. The suit was begun, on a judge’s summons, on the 3^rd July, made returnable on the 6^th July. On the latter date Mr. V.H. Deacon, who was solicitor for the plaintiff, filed the following affidavit in support of the summons: -

I, Victor Hobart Deacon of Victoria in the Colony of Hongkong, solicitor, make oath and say as follows: -

1 – I have the conduct of this matter on behalf of the above-named plaintiff.

2 – On the first July instant I ascertained by a personal search at the Probate Registry of this Honourable Court that an inventory of the Estate of the late William Bolton Spratt aught to have been filed on or before the thirtieth January last but that no inventory had on the said first July instant been filed.

3 – In the petition for Probate the Estate is mentioned as

Kowloon Garden Lots Nos. 35 and 53 purchased in September 1881 for……..$7,000.00

Inland Lot No. 360 and Section A of Inland Lot no. 584 upon which houses were being constructed of the value of about…18,000.00

Four houses in Mosque Terrace valued at…..24,000.00

---------------

$49,000.00

The above properties were subject to charges amounting to 17,000.00

--------

$32,000.00

Balance at the Chartered Bank 3818.12

Variety Store valued at 3000.00

Promissory Note of Eça da Silva payable in five and ten years 20,000.00

Household furniture and effects valued at about ….1,000.00

Total value….$59,818.00

and the total Estate was sworn as under the value of $40,000.00

4 – On the twenty-eighth May last acting on the instructions of the Reverend Father Guillermo Burno, an equitable mortgagee of part of the said Estate, I wrote to the defendants asking for payment of a sum of $12,000.00 due on the security of the houses charged to Father Burno’s favor and in reply I received a letter from the defendant C. Ewens that the Estate of the said William Bolton Spratt had been transferred to Mr Eça da Silva and that he (Mr Ewens) had discontinued acting in the matter.

With this affidavit was filed another by Mrs Spratt, which runs as follows: -

I, Anna Eulalia Spratt of Victoria in the Colony of Hongkong, Widow, the above-named Plaintiff, make Oath and say as follows:-

1. – The above named William Bolton Spratt, late of Victoria aforesaid, Trader, was my husband and by his will dated the 11^th June 1884 he gave and confirmed to me all the jewels, trinkets and personal ornaments worn and used by me during his life-time, and he gave all his plated articles books pictures and prints unto his Trustees (being the above named defendants herein) in trust to permit me to use the same during my life and from and after my decease upon certain trusts therein mentioned, and the testator also bequeathed to me one third share of the residue of his personal estate and effects.

2. – The said William Bolton Spratt died on or about the 4^th July 1884 without having altered or revoked his said will which was duly proved in the Supreme Court of Hongkong in its Probate Jurisdiction by the defendants the Executors named therein on the 6^th August 1884.

3. – I have had no accounts of the estate offered or shown to me by either of the executors or any one else nor (with the exception of $1000 paid to me and a Bill of Sale for $2500 given to Mr da Silva) has my share of residue been paid or accounted for to me. Mr Alexander Amador Eça da Silva, who married my sister Andreza Maria da Silva has always told me that the management of the Estate had been handed over to him and that my share only amounted to $5000 and from his connection with my family I believed him and trusted him. I had no independent advice or assistance throughout the whole matter. In the month of May or June last Mr da Silva told me that the other two shares were selling for $5000 each and that therefore ‘I must sell’ for the same price. I replied that I did not want to sell, but he said that I must as the other two shares had sold. I then said ‘if I must sell you attend to it for me’ and I then asked for an account of the sale of the property wanting to know for how much the property was sold. He said in reply that Mr Ewens had gone to Japan and that Mr Holmes’ wife having gone home he (M Holmes) had no time to attend to it. A few days after that in consequence of Mr da Silva telling me that I must sell I signed a deed in Mr Holmes’ office. I understood that the deed I was signing was a document handing over my share in the property to Mr da Silva to sell for me. Mr da Silva said to me that the two other shares had signed the deed and that I must also sign it, except saying this he did not explain to me what the deed was about. Upon that I asked no more questions believing Mr da Silva and I signed the deed at Mr Holmes’ office. Mr Holmes called his Portuguese clerk to explain the deed to me, but Mr da Silva said ‘Oh never mind, she has been married a long time and understands English,’ and so the clerk went away and I signed without reding it over thinking it meant what I have before explained.

4. – About seven or eight days ago Mr Holmes sent for me to come to his office and I went. He said to me ‘What have you had this row with Mt da Silva for you have sold your share to him.’ I said ‘No, I have not.’ Then Mr Holmes called his Portuguese clerk and I said to him that I had not sold my share. The Portuguese clerk replied that the reason why I did not understand was because Mr da Silva had not explained the deed. Then the interview terminated.

The case was heard in Chambers on the 7^th July, and on the 8^th August, Mr Ewens filed the following affidavit: -

I, Creasy Ewens, one of the above named Defendants make oath and say as follows: -

1. – In reply to the Affidavit of the above named Plaintiff filed on the 6^th instant I say that she has now no interest in the estate of William Bolton Spratt the Testator in this suit as she has received all the articles specifically bequeathed to her and by an Indenture dated the 14^th of May 1885 she assigned her one-third and all other her right share and interest in the residuary estate of the said Testator not already by her received to Alexandre Amador Eça da Silva for the sum of $5,000.

2. – I saw the said Plaintiff sign seal and as her act and deed deliver the said Indenture, and previous to her so executing I heard Henry James Holmes who was acting as her Solicitor in the matter ask the said Plaintiff of she thoroughly understood the deed and that she was giving up all her interest in the estate to the said Alexandre Amador Eça da Silva and she replied that she did.

On the same day, the plaintiff also filed an affidavit: -

I, Anna Eulalia Spratt of Victoria in the Colony of Hongkong, widow, the above-named plaintiff, make oath and say as follows: -

1. – That I have had read over to me a copy of the affidavit herein of Creasy Ewens filed to-day.

2. – I say that I did sign a document in Mr Holmes’ office, but I understood it to be a deed giving the management of my share of this estate to Mr da Silva. I did not understand it to be an assignment of my said share to Mr da Silva for $5000 or any other sum. Mr Holmes did say something to me at the time I signed, but I did not understand what he said and never thought the document was for any other purpose than that above mentioned. If Mr Holmes asked ne if I understood the Deed I did not know that this was what he was saying to me, and I swear positively I did not know nor had any idea that the deed was an assignment of my said share.

3. – I have never received the above sum of $5000 or any part of it.

4. – I never engaged Mr Holmes as my lawyer in the matter. Mr da Silva told me ‘he must have a lawyer’ and I raised no objection but nothing further than this passed.  

5. – When English is spoken to me very slowly and distinctly I can follow it, but I cannot do so when it is spoken quickly or when the words are not ordinary English words in use.

Dr Ho Kai then said that the arguments he intended to submit might be classed under two heads; first, as regards the irregularity of the proceedings which led to the granting of the decree, and secondly, that the decree was granted not in exact accordance with legal procedure. In the first place he submitted that the suit ought to have been commenced not on a Judge’s summons in chambers but by a regular writ of summons, and in support of this contention he quoted the first paragraph of Section 9 of the Code of Civil Procedure, the third paragraph of Section 13, and Section 4, which he contended made distinct provision for the commencement of every form of suit, and that this suit, which was one of account of partnership or executorship ought to have been commenced by the ordinary writ of summons. His second contention under the first heading was that the summons had not been served upon one of the defendants, Charles Cairns, who, as was plainly shown by the plaintiff’s own affidavit, was one of the administrators. He argued that it was absolutely necessary that the summons should have been served on Charles Cairns, and in support of this contention referred their Lordships to Williams’ Law of Executors and Administrators, 8^th edition, page 202. Dr. Ho Kai next remarked on the affidavits which had been filed. With regard to the one by Mr Deacon, in which it was alleged that no inventory had been filed, he would submit that that was a matter which could not be raised in Chambers. It ought to have been raised in the Probate Court. On this point counsel quoted from Coke’s Practice, page 226. Besides this, however, he pointed out, that the Executors had filed an inventory with their petition for probate, and they had also filed an amended one with the account. As regards the disclosure in the plaintiff’s affidavits, it seemed to him there had been a disclosure which ought to have been made in open Court, especially as the affidavits contained matters of the gravest kind and had a great deal to do with a third party whose evidence had not been taken. He submitted, therefore, that the case ought to have been heard in open Court, so that every one might have been represented. Under the second heading, he submitted that, granted that the Judge’s summons was properly issued and served, the decree was improperly made. The objection he took to the decree was on the ground that the plaintiff had now no interest. She had by her own showing signed a deed under which the Executors had been acting, and which appeared to be an assignment by her of her own interest under the will to a third person. How she signed that deed, or for what consideration, they were not in a position to judge, but a deed had been registered purporting to convey her interest to a third person. And the Executors, acting in accordance with that deed, had rendered an account, and now they were asked to administer an estate which had passed out of their own hand, and ordered to render a accounts at their own expense and risk. They were ordered to do a thing which they could not do without opposing that deed which had been made by the plaintiff, and if they did oppose it, who was to pay the costs and damages arising therefrom. On this point he directed their Lordships’ attention to the cases of Clegg v. Fishwick, and Pearce and Crutchfield. If the deed were bad plaintiff’s remedy was to move to have it set aside, and if her motion was successful she might then call for an account. In this case no collusion was averred. If there had been collusion this must fail, because the executors would then be a party to this collusive assignment, but unless collusion was proved against the executor, then the executor was made an innocent third party. Dr Ho Kai further argued that where the issues were difficult and complicated the case ought to come before the open Court, and quoted the cases of Caster v. Anderson, and Weat v. Lang. He concluded by asking for a rule absolute or nisi.

The Chief Justice said they would look over the affidavits, and also consider the questions of principle, and if they should come to the conclusion to grant his application, they wpuld let him know.”

 

Source: The China Mail, page 3, 10th August 1885

Thanks Ann for your research - what a surprise the middle name is subtly different! I noticed her sister was married to da Silva hence I did not think that was her maiden name but I see your point that researching the sister may lead to the true surname. Thanks!