214
Kai (instructed by Mr. Ho Wyson) appeared for the defendant.
The following jury was empanneled-Messrs. J. McCallum, D. W. Craddock, A. O. Gutierrez, G. C. Fullerton, J. M. G. Manuk, F. Baretto, A. J. dos Remedios.
Mr. Francis, in explaining the facts of the case, said the action was brought by plaintiff as the widow and administratrix of the estate of her husband, who died on 25th October, 1879.
Counsel then read the pleadings, which stated that the plaintiff was a widow residing in Victoria, and she was married to Wong Tui | Yau on 25th April, 1873; at that time she was fourteen years of age. Her husband's survivors were, in addition to plaintiff, two children. At the time of his death he was possessed of or entitled to a leasehold house at 42, Staunton Street. He died intestate, and letters of ad- ministration to his estate and effects were issued on 1st December, 1879. The plaintiff, being young and wholly inexperienced, entrusted the entire care and management of the property and affairs of her husband to the defendant, and as her attorney and agent he took possession of the house on 8th March, 1880. But the de- fendant fraudulently and improperly caused the house and premises to be registered in the Land Office in his own name and as his own property, and had remained in possession thereof as owner and in receipt of the rents from the date of registration. He had always refused to account to the plaintiff for the rents and profits and to deliver up possession of the house. Plaintiff left the colony on 8th March, 1880, and was absent many years,
The answer of the defendant stated that on 8th March, 1880, he purchased from the plain- tiff the estate of her husband, together with the house at 42, Staunton Street, for the sum of $2,100. The consideration money was fully paid to the plaintiff, and the transfer of the property to the defendant was properly and legally made by an indenture of assignment dated 8th March, 1880, and registered at the Land Office. The assignment was executed by the plaintiff before two competent witnesses. The defendant denied that he had been entrusted with the entire care and management of any property and affairs of plaintiff's late husband and that he had acted as plaintiff's attorney or agent. The defendant further denied that he obtained the transfer and possession of the said property by any frandulent or improper means, and further denied that the plaintiff was absent from the colony for many years.
The replication of the plaintiff contained a denial that she had sold the property to the defendant, and a further denial that she had received any money from the defendant on account of such sale or that she had ever entered into the assignment of the property.
Mr. Francis, proceeding with his address, said the plaintiff was 14 when she was married and 20 when her husband died. As she was ignorant and inexperienced she was unable to attend to her own affairs, and she entrusted them to the defendant. After everything had been settled the defendant persuaded her to go to Canton as her mother was ill. She went, and left with him a copy of her letters of administration and other papers connected with her husband's property. About four months afterwards her mother died and she returned to the colony and found defendant in possession of 42, Staunton Street. He told her she ought to be with her own friends and relatives in Canton as Hongkong was a dangerous place for a young women to be in. He would look after Fr pro- perty collect the rents, and send her the honey. She remained here only a few months and then returned to her father's house in March, 1880. She was educated by missionaries, and from time to time she was, in answer to her inquiries about the property, put off by the defendant, who said that as she did not want money the rents were being saved for her and her children. It was for this reason that she had not brought the action at an earlier date. There was a deed recording the transfer of the property to the defendant, and it was witnessed by Ng Choy, formerly a barrister here, and his clerk, who was dead. She denied signing that deed and the only supposition was that some other woman was taken to Ng Choy's office, who put her mark to the deed and it was registered in due course. The plaintiff was
THE HONGKONG WEEKLY PRESS AND
| totally ignorant of the fact that, as far as the records were concerned the property had passed out of her hands.
Plaintiff was then called and gave particulars of the various transactions which took place on the death of her husband, and denied that she had sold the property to the tlefendant or that she had signed a deed of assignment.
In cross-examination witness said she did not know Ng Choy was one of her father's friends. The deed, bond, and petition for administration were then handed to witness and she said she did not sign the deed. She was not certain whether the signatures on the other documents were hers, because they were attached so long ago. She was not quite certain whether she put her signature or cross to the bond.
Hon. Ho Kai said the defence was that con- tained in the pleadings and he called the defen- dant, who distinctly said that the plaintiff sold him the property, and the deed of transfer was signed in his presence by the plaintiff on 8th March, 1880, in Ng Choy's office.
In answer to Mr. Francis defendant said he was agent. at 1, Winglok Street, for a master who is dead. He had no other little agencies like this. No. 42, Staunton Street was the only house he owned. He was a teacher in the Government school, but had never taught in the London Missionary Society's school; he was an elder in the Chinese Union Church.
The case had not concluded when the Court
rose.
13th September.
Additional witnesses were called for the defence and they all spoke of the sale of the pro- perty by the plaintiff to the defendant.
At the conclusion of the defendant's case Hon. Ho Kai addressed the jury. The property was sold to the defendant, plaintiff signed the deed and other documents, the whole of defen- dant's family knew of the transaction, and was it likely that the family would conspire against the woman to defraud her of her property? Counsel submitted that the woman's story was not worthy of credence, and drew attention to the fact that many years elapsed before she said a word about the property.
Mr. Francis, in reply, said the plaintiff had no real necessity to sell the property. She had brought a charge of deliberate fraud against the defendants. There was nothing easier than to get another woman to come to Hongkong to sign the documents, and there had been no evidence of the plaintiff's signature to the docu- ments except that of the defendant himself.
His Lordship, in addressing the jury, said the whole question was, Did the plaintiff sign the documents If 80 was there a bona fide sale of the house by the plaintiff, and did she receive the consideration money from the defendant? She said she did not sign the deed of asignment Of course if she had come to the Court and committed deliberate perjury she was not entitled to the suggestion that she had been defrauded, and she was not entitled to belief in the rest of her evidence. It was a question of one story against another. The plaintiff had got to face this fact, that the the deed was not executed in a hole and corner way in a Chinese house, and in the presence of unknown witnesses, but it was executed in a lawyer's officer and the signature of the plain- tiff was witnessed by the lawyer, and his clerk Counsel for the plaintiff had therefore to make some explanation to the jury as to how the signa- ture was there, and the suggestion was that the transaction was carried through with the aid of a dummy assignor. If the jury were satisfied that the plaintiff's statements about her signa ture were false, that she was saying what was untrue with a view to misleading the jury and strengthening her case by making them suppose that she could not possibly sign the deed of assignment because she could not write Chi. nese-if she was deceiving the jury and they were satisfied she could write her name, there must of necessity be a doubt about the woman's evidence in other particulars. She had admitted to the Court that she signed the petition for letters of administration, so that, according to her story, the real plaintiff was taken away during the course of the administration proceedings on one occasion, and on another a second woman was taken. The jury would have to consider
|
[September 18, 1895.
whether that was likely; they would have to apply their common sense to the question. If plaintiff, in stating that she did not sign these documents, had said what was untrue, how could the jury believe her in regard to her other evidence? His Lordship then referred to the evidence in detail and said that the two sides were as far apart as heaven and earth. In conclusion he said that fraud, conspiracy, perjury, forgery, and serious offences against the Registration Ordin- ance were involved in the case, and the jury must remember that the suit was brought after a lapse of fifteen or more years. The questions for the jury were-Was the agreement signed by the plain- tiff; was the memorial signed by the plaintiff, if so was there a bona fide sale by plaintiff to- defendant; and did the plaintiff receive the consideration money?
The jury retired and after an absence of a quarter of an hour answered “yes to all the questions.
His Lordship-Is the plaintiff here? Tell her to come forward as I want to speak to her.
The plaintiff stepped forward, and his Lord- ship said to the interpreter Tell her the jury have found that she came here to tell a string of lies, and I have not the slightest doubt the jury are perfectly correct. If it was not for her family, and that I do not wish to bring dis- grace and trouble upon them, I should have no hesitation in sending her to prison. I am satisfied that the defendant's witnesses gave their evidence honestly and truthfully through. out.
Judgment for defendant with costs.
11th September.
IN SUMMARY JURISDICTION.
BEFORE ME. A. G. WISE (ACTING PUISNE JUDGE).
TAI SIN FO0 V, HOPKINS, KUM HING
AND CO. ··
Plaintiff sued for $347.80, the value of food supplied on behalf of the defendant firm. Mr. Ho Wyson appeared for the plaintiff, and the defendants did not appear, neither were they represented.
Plaintiff spoke to supplying food of the above mentioned value to coolies on board the Pro- pontis to the order of the defendant firm.
His Lordship gave judgment for the plaintiff for the full amount with costs.
12th September.
In re KAN CHEONG SHOP. Four writs of foreign attachment against the Kan Cheong shop came on for hearing. The plaintiffs and the amounts of their claims are as follows-Yee Cheung firm, $400, Wa Hing, Bank, $1,000, Kwang Mi Cheung, $308.03, Min Yuen Tong $852.80.
Mr. Gedge (of Messrs. Johnson, Stokes and Master's office) appeared for the plaintiffs, and Mr. Mounsey was for the defendant.
Mr. Mounsey said he had two objections to the writs, as the whole of them were bad. If, however, his Lordship was against him, he would have nothing more to say. His first ob- jection was that no writ of foreign attachment could issue against a firm. All the affidavits referred to the defendant firm as the defendants; they did not refer to the partners by name. The plaintiffs must show that the defendants themselves were leaving the colony. The second objection was that there was no mention of a garnishee. Within the last month the Chief Justice had expressed the opinion that any writ of foreiga attachment in this colony was bad unless the garnishee was mentioned in the writ.
a case in which the garnishee was not men- tioned a new writ was ordered and served on the defendants.
His Lordship-Suppose I take that view and order fresh writs to be filed at once and taken this afternoon, what good does your objection do you?
Mr. Mounsey said that proceedings in bank- ruptoy had been filed against the debtors' estate, and if the costs were piled up there would be nothing to pay the creditors with.
His Lordship-There is nothing now, is there ?
Mr. Mounsey-There is about $5,500 in