31-1896.1
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CHINA OVERLAND TRADE REPORT
Drummond's request, the words "a substitu security were inserted in lien of the words
an additional security from Cheong Koon Sing As a last reason which has influenced my mind in deciding this question of the rela tive truthfulness of these witnesses, I may say that the evidence of Mr. Darby as to what was said and done at the interview of the 27th March, 1892, is borne out by the subsequent conduct of the parties, while the evidence of Cheong Koon Sing on the same points cannot be reconciled with such conduct.
Before I proceed to consider that conduct it may be well to mention two or three facts in the case.
cong Koon Bing's that Mr. Darby further liability in eed to accept the iven by Kan Sing Toi
iscordant versions I believe. Darby as against that given Koon Sing, and I propose to state the reasons which have weighed with me at this conclusion. In the first I have formed the opinion that Mr. more, truthful and candid witness ong Koon Sing: It is true that I have an opportunity of seeing Mr. ander examination, but the Registrar, Both Mr. Darby and Cheong Koon Sing was examined' de bene esse, in say that they saw Cheong Kai on the 27th orms me that, although his memory seemed to March, 1892, but Mr. Darby does not often at fault, yet he gave his evidence speak of any conversation taking place with parently truthful manner. His evidence him. At the interview of the 27th March and that of a man not in any way desiring on the following day Cheong Koon Sing de rain the truth. But I cannot say that I livered to Mr. Darby Chinese promissory notes was favourably impressed with Cheong Koon and other securities which he had obtained from Sing as a witness. He appeared to me to be an the Tsau Shing; Kwan Yu, and Kung Tại exceedingly astute and intelligent man who Banks and which amounted in value to abont carefully weighed his answers to the questions $100,000. These doonments were merely kept put to him and was anxious that they should by the Bank for safe custody and were realised with the case put forward for the de- from time to time by Cheong Koon Sing His evidence was given through an and the proceeds paid by him to the Bank in rpreter and I am inclined to think that he discharge of his liability on the bills and knew English sufficiently well to be able, gener-note. The whole amount was got in with the ally speaking, to know what the question was be- exception of some few thousand dollars-Mr. fore it was interpreted to him. I have already Darby says "inside of $5,000." adverted to the subject of the relative interest of the two witnesses in the result of the suit. Then, to come to the subject-matter of the agreement ad alleged by Cheong Koon Sing, it may be asked why should Mr. Darby have made such an agreement? It is not disputed that Kan Bing Toi was expressly liable on the Wing Tang Yan bills as a party to them and ultimately liable on the Kwong Fuk bills as a
reads to:
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The ten bills were all dishonoured in con- sequence of the failure of the drawers at Shanghai. The banks in Hongkong by which they were drawn also suspended payment from time to time, the latest about two months after the 27th March, 1892. The promissory note of the Kwan Yu Bank was not paid. Kan Sing Toi absconded from the colony one or two months after the same date.
I come now to the considération of the con- duct of the Bank and of Cheong Koon Sing as throwing light upon the proceedings at the interview of the 27th March.
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had conversati
him on
that was affairs from time time Cheong Koon Sing in the losses on the Kwong Fuk and Wi bills at so early a date after the in the absence of fraud on th Bank which is not alleged by the consistent with Mr. Darby c events of that day but is in Cheong Koon Sing's ren
The next event of importance t the same day as the opening of account, namely, on the 80th Mr that day the following letter in the ing of Mr. Darby and signed by M was addressed to and signed by Cheong Sing :-
oon
The Bank of China, Japan, and the Straits Ld. Hongkong 80th March, 1892. Mr. Cheong Koon Sing, Compradore, the Bank of China, Japan, and the Straits, Ld., Present, Dear Sir, I have the regret of confirming to you my verbal statement of the 27th inst, that the drawers of our Chinese remittances on Shanghai would not meet their acceptances if the drawers of the hills failed under the pressure of the “run. whic taking place on the four Chinese banks –
Wing Tung Yan Kwan Yu
Kung Tai Kwong Fook
I have been since informed by wire that the Yuen Loong Hong has been closed and that the Shid Tai Hong has failed.
می
In other words, I have to look to you for payment to us at once of the following drafts purchased direct from you: [Here follow particulars of the bills, not including those of the Tsau Shing Bank, which have already been given in this judgment. The Teau Shing Bank was apparently not included because it was thought that, as Lo Hok Pang was not connected with that Bank, it would not close its doors.].
You have recourse against Yek Mow for Tls. 20,000 and this security seems to be good.
The last bill for Tls. 20,000 on Shiu Tai has not been accepted.
the
I shall be glad of an answer as soon as possible, so that I may take the necessary steps Bank's interests.--I am, dear sir, yours faithfully,
CHANTREY INCHBALD, Manager
I would also remind you that you have not yet credited the cash with the Bank's local advance of $10,000 to Kwan Yu guaranteed by Lo Hok Pang on demand, which I instructed you to cash on 27th inst.
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This letter of course made it perfectly clear that the Bank held Cheong Koon Sing, liable for the losses occasioned to the Bank by the dishonouring of the Kwong Fuk and Wing Tung Yan bills, and, if the idea of fraud is excluded, it is entirely inconsistent with the fact of the Bank having in any way released him from that liability. It was written by Mr. Darby, who is alleged to have given that In cross-examination Cheong Koon release. Sing was asked whether he had made any re- presentation to Mr. Darby as in acting in this way and he mitted that he had not. Then he was asked why he had not done so, but he could make no answer purpose. He says that when he red latter he got a Portuguese clerk of to explain it to him, and he was in his mind when he found that the of the Kwong Fuk and Wing bills, which had been settled Darby, Kan Sing Toi, and 27th March, 1892, was accordingly took Kar Iuchbald, and he relates a which took place bety going into details, conversation throws no
tner in that bank. Why then should Mr. rby, merely for the sake of the Bank being ranted an easy way of bringing home this bility, surrender its right to call on Cheong Koon Sing to make good the losses in respect of those two banks? In answering this ques- tion we must remember that the margin made available under the alleged agreement was, at the last
valuation of the securities, nearly $30,000 short of the required amount, and also that Mr. Darby must have known that the value of the shares held for the account would probably fall in consequence of the financial crisis. Again, it is easy to understand that Mr. Darby, should conclude such an arrange- ment as that described by himself without reference. to Mr. Inchbald, but it is far from being easy to understand how he could make such an arrangement as that alleged by Cheong Koon Sing without such a reference. It may also be pointed out that, as regards the documents written at the interview, the internal evidence supplied by the documents themselves is more consistent with the story told by Mr. Darby than with that told by Cheong Koon Sing W "for instance, should Kan Sing Toi have given, at one and the same time, an express permission in writing in the case of the Kwong Fuk bills and only a verbal permission Case of the Wing Tung Yan bills? T have already referred to the absence of cross
ination of Mr. Darby with respect to the eement. It is true that Mr. Darby hether Cheong Koon Sing took him at the interview, but I do not understand question was not followed by the material question whether he spoke to Koon Sing the words which are set up ress release of the latter's liability. It or observed by Mr Francis that the ant sanswor did not set forth any express this allegation could not be sustained and that | question in controversy in this
indeed any specific agreement at all Mr. Darby and Cheong Koon Sing, difficult to conceive how or why Cheong should not have furnished them nation on this point at any rate in the framing of the amended para
which were not filed until It may deserve men- that in one of these t'originally tood the the plaintiff bank
On the 30th March, 1892, the Bank opened an account in their books called the Com- pradore's Liability Account." In this account they debited Cheong Koon Sing with the amount of all the dishonoured bills, including those of the Kwong Fuk and Wing Tung Yan Banks, and the unpaid note, and with interest and other charges in respect of them, and credited him with payments made in reduction of his liability. Mr. Darby says that Cheong Koon Sing was not furnished with a copy of the account, but that he knew of the existence of the account and could have seen it at any time or obtained a copy of it. This statement is both reasonable in itself and consistent with what I take to be the characters of the men concerned. It must be remembered that Mr. Darby speaks of Cheong Koon Sing as a cap able and efficient servant of the Bank, while Cheong Koon Sing on his side speaks of his always finding Mr. Darby straightforward in his dealings with him. It must also be remem. bered that he was at the Bank every day en- gaged in the performance of his duties, and no doubt in constant intercourse with Mr. Darby, In these circumstances it was only natural that Cheong Koon Sing should be made acquainted with the particulars relating to such an impor- tant transaction, in regard to which he and the Bank were co-operating towards the reduction of his large liability to them. In the plaintiffs' petition it was alleged that detailed accounts of the transactions and of the moneys due by Cheong Koon Sing were furnished to Cheong Kai during his lifetime, but at the hearing it was admitted on the part of the plaintiffs that the accounts were only furnished to his execu tors, the defendants. This, no doubt, was an omission to do something which it would have been better for the Bank to do; but it may be pointed out that the bond of Cheong Koon Sing and Cheong Kai contained an express stipulation that it should not be necessary for the Bank to notify any such entries to Cheong Kai or to inform him of any losses sustained by the Bank through Cheong Keon Sing Further, Mr. Darby says that Cheong Kai know of the existence of
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count; that he often came
the hearing at Mr. connexion with this business, that he frequently
namely, whether the arrangen Kan Sing Toi's account wit Kwong Fuk and was not accompanie Koon Sing from bills. In other sistent with either thinking it atr did not take Ka who
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