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146
THE HONGKONG WEEKLY PRESS AND
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who had not quite recovered his coolness and collectedness when asked with reference to the entries and blurted out the truth that
they were entered before tiffin. Counsel further argued that the method adopted by the defendants in their transactions with Polishwalla put them in a position to effectuate a fraud when they thought fit, for the jury had to bear in mind the fact that the books were habitually falsified and that the actual buying and selling price was not entered. This was not a matter of sentiment. The quotation from Shakespeare made by his friend was a very pathetic appeal to the jury's feelings, but there was no question here of filching. Mr. Gorham was not even seeking to recover damages, he was simply asking the jury to give him a statement of the transactions put through for him, showing the name of the buyer and purchaser, so that he might go round and verify the accounts. Counsel asked the jury to do justice and, however much they might sympa. thise with Mr. Potts and the difficult position in which he was placed, to consider the question of fact wholly and entirely irrespective of the effect to either party that might follow the verdict.
the case.
It Was
[February 26, 1898.
His
guilt which could be attributable to Benjamin,
tion in which they would be held by the mer- Kelly, and Potts, because really it was a more
cantile community in Hongkong, so that it was serious matter to Gorham than to Benjamin,
a matter of very serious import to their reputa- Kelly, and Potts. The charge made against
tion and standing. Speaking of the remark the plaintiff was that he had deliberately and
made by Mr. Drummond respecting the cross- out of hatred for Mr. Potts concocted the whole
examination of the witnesses, his Lordship did not think that Mr. Francis had of this story from beginning to end; that he
exceeded the never laid any traps; that he never made the
right of cross-examining entries in his diary at that time; that the whole
counsel in regard to any of the witnesses. His of the case was the result of a vindictive feel.
Lordship then briefly dealt with the facts of the ing against Mr. Potts; that it was brought for
case and put to the jury the following ques- the purpose of ruining the defendants; and
tion-Was the transaction involved in the sale that the charges were verified by committing
of 100 Indo-China shares on the plaintiff's ac- perjury. If the charge made by his learned
count to Mr. Polishwalla and the re-sale of the friend was true Gorham must have acted with
same shares on Mr. Polishwalla's account on the the greatest malice. The case was equally as
6th November, 1896, a bona fide one; or was it important to the plaintiff as to the defendants.
fiotitions and done with the view of securing As a matter of fact their sympathy might go to
additional gain to the defendants? If the jury Mr. Potts, personally well known to most of
thought that Polishwalla was a mere crouture them; but it was not a question of sympathy;
of the defendants-a mere dummy in their it was a question of pure, simple business.
hands, and a man who was at their mercy—that Referring to the transactions between the
would involve a verdict for the plaintiff, if they parties counsel pointed out that the only im-
found that Polish walla was a genuine person, portant transactions between November and
that his account was a genuine one, they would March were those in Banks, and they were
still have to direct their attention to the ques- the mere continuation of contracts in force in
tion whether in this particular instance the September, when no suspicion whatever was
transaction was a genuine and bona fidë one. In entertained. The cash transactions were ex- His Lordship commenced his summing up at regard to the conflict of evidence concerning tremely few. He submitted that Mr. Gorham's 4.45. He congratulated the jury on having the visit of Mr. Potts or Mr. Kelly to the plain- case, as presented by himself in the witness box, at length arrived at the conclusion of tiff, one side was undoubtedly misleading the was simple, clear, and straightforward, and
The case had lasted a long time, but court. The plaintiff in his diary had noted that was supported by the evidence of Mr. Perry considering the importance of the issues in- Mr. Kelly had visited him, while Mr. Potts had and Mr. Master. In reference to the manner volved he did not think it had lasted too long. positively stated that it was he who visited the of entering the sale of the shares to Polish-The issues were important from the point of plaintiff and received the order to sell the shares. walla and to his friend Monshi counsel sug- view of the plaintiff, because if the verdict was The jury's conclusion on that point would go
the defendants it involved gested that they were made in that particular in favour of
a long way towards settling the case generally. form for the purpose of concealing the fact the position that he had formulated a very
Either the plaintiff had endeavoured to impose from anyone who might have to look at that grave charge against them without foundation, on the jury with a fictitious diary and false book that it was a mere nominal trans- and he would also be saddled with a heavy bill sworn testimony, or Kelly and Potts had com. action. 75 of Gorham's shares were eu-
of costs. Then again, if the verdict was for bined to mislead the court and therefore were tered as having been sold to Polishwalla, the plaintiff it involved conduct which, broadly men whose word could not be trusted. *and 25 were entered as having been sold speaking, was fraud ou the part of the Lordship could not see how any lapse of mem- to his friend-the name being left a blank, defendants.
always important ory could come in there; the matter was too although the name must have been known. to notice the manner, the demeanour, and the definite for that. Speaking of Polishwalla his What an absurd farce! What an intensely temper of a witness in the box. By observa Lordship described him as a very respectable ridiculous statement for a mau to commit tion of those points a right estimation was and a very well mannered gentleman, and he himself to, that a blank had to be left for arrived at of the truthfulness or otherwise of a was very clear and precise in the way he gave` the name of the friend! They had heard of no witness. The plaintiff certainly did strike one his evidence, and be impressed his Lordship by other friend but Mr. Monshi, of Bombay, and as being deficient in memory. He very fre- the way he handled the papers; he appeared to that name was known to Mr. Potts and Mr.quently used such terms as "I don't recollect," be quite familiar with them. It was, however,
I don't remember," So far as I can recol- Kelly. If Polishwalla was an ordinary, regular,
a remarkable fact that he never had any settle- sound, honest, independent constituent of the lect," and qualifying words of that descrip- ment with the defendants, although he specu- firm why was he not charged double brokerage tion. When a man frequently used words of lated so largely in shares. One would think that the same as anybody else? It was perfectly that kind it was due probably to one of he would have had settlements at certain periods probable that Polishwalla was
made use two causes, either that his memory was really by way of striking a balance and getting some- of by Benjamin, Kelly, and Potts for the defective or he did not like to commit himself thing out of the elaborate speculations, but ap- purpose of such transactions as the present one and wanted to be as general as he could. It parently he did not benefit at all by them. The jury Bo as to allow the firm to get double or quadruple was for the jury to say to which of these causes would whether that was a reasonable and brokerage out of the transaction. It was un- they ascribed the action of the plaintiff. The probable course of dealing-whether he was necessary for counsel to say that Polishwalla was plaintiff's counsel had admitted that the con- speculating fairly on his own account with them absolutely and entirely a figurehead, a dummy, duct of the plaintiff was not pleasant from a and occupied the same position as any other for Benjamin, Kelly, and Potts, that he was at moral point of view and that it might create gentleman who speculated with a broker, or that time in such a position that they could repulsion against the plaintiff.
whether he had placed himself in the hands of make use of him as they pleased, and that he think that the plaintiff did not go about the the defendants so that they could use him as could not have opened his month. He never business in a way that a straightforward. they thought proper, that is, as a mere tool in had a settlement, never closed the accounts, minded man would do. It seemed to his Lord their hands. If the jury thought that Polish- and never received a red cent from them. The ship that when the transaction about Indo- walla was merely a màu of straw. the verdict would be for the plaintiff. In regard to the question for the jury was not whether Polish- Chiuas was presented to the plaintiff's mind on walla was wholly and entirely a dammy in their the 7th November, 1896, the right course would first sale his Lordship put the following ques- tion to the jury:--Did the plaintiff assent to bands, but whether he was a mere instrument to have been to go to the defendants and say to enable them on most transactions to make double them, "1 have heard so and so, and I don't the charge of double brokerage on the sale by brokerage which otherwise they could not make. understand it. It looks strange; what have the defendants on his-account of 50 West Point However, the shares on the 20th November, 1896? There Mr. Gorham had entered in his diary that it you got to say about it?"
was a conflict of evidence on that point between . was Kelly who called on him about the Indo- plaintiff did not do that. According to his China shares. Potts said it was he. There own statement he kept the matter secret and the plaintiff and Mr. Potts, and it was clear endeavoured to trap the defendants in other that one or the other had made a false state- were very strong reasons why he should say so.
His Lordship did not know ment. A similar question relating to the sale If Kelly had admitted having received the in- transactions. structions it would have been useless for the whether that appealed to the jury's feel- of West Point shares on the 24th November was also handed to the jury, and His Lordship, in defendants to set up the story about the sale ings of loyalty and of honourable conduct. to Polishwalla, as Kelly could have concluded But as the plaintiff's counsel had said, that conclusion, said he supposed that the jury knew the transaction at 840 to Polishwalla there conduct could not effect the bearing of the case. the plaintiffs as well as the defendants, and and then. Mr. Drummond had said that At the same time, where the jury had a point therefore it was difficult for the jury to dis- on which they had to rely upon a man's straight charge their duty quite satisfactorily. If they counsel was very unfair to Mr. Potts in cross-
forward conduct, action of that kind might were sitting in London in all probability the examination. Would bis friend not deal with a hostile witness in the same way? He was quite affect them. When a man set himself to play plaintiff and the defendant would be utterly justified in calling attention to what Mr. Potts the part of an amateur detective as the plaintiff unknown to them, and it would not matter had done in the past. The jury found that Mr. had done in this case, he was perhaps a little apt a halfpenny to them whether their verdict went for the plaintiff or for the defendant, Potts had combined with others to improperly to make things fit in with the view he had taken raise the price of shares in which he was dealing. up. Therefore the jury had to consider whether They knew both the plaintiff and the defend- He was flatly contradicted in his evidence and the plaintiff, having undoubtedly got a suspicion ants in the present case; they saw them in in his mind and having laid a plan of campaign their daily avocations; they knew their busi- the judge asked the jury to take the other evi. dence in preference to that of Mr. Potts, to follow it up, had or had not strained the facts ness; they knew their relations one with the
did. It
so as to suit the campaign that he was pursuing. cther; and undoubtedly it was difficult for a they practice for a witness to go into the wit- Then of course the jury had to consider the jury in such circumstances as those to discharge ness-box completely primed with the story he position of the defendants. Broadly speaking, their duty satisfactorily, as personal feelings was going to tell. The course adopted by the plaintiff charged them with dishonest cou- would have some play. Therefore it was only counsel put the witness off his guard, and he duct in their dealings with him, and if that was right that his Lordship should tell them that suggested that that was the effect on Mr. Potts, true it would very materially affect the estima- it was their stern duty to decide the case
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