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spondent that the books of the Fu Shun Tong were saved and kept by the accountant of that Tong, Taoi Hon Shing, and three of these books were produced at the hearing.
It was in these circumstances that the transactions in question in this case took place. The story told by the Appellant is simple enough in its main features. The Appellant is a Chinese banker and Californian dealer carry- ing on business in Hongkong. His banking business is carried on under the name of Kwong Tai and his Californian business under that of Kwong Mi Un. He said that he had known Tso Cheong, also called Tao Chik Chan, for three or four years, and that, on the introduction of Tso Cheong, he became acquainted with the Respondent on the 10th October, 1896. He was then informed by the Respondent that he (the Respondent) was a partner with Tso Cheong in the Fu Shun Tong, which was connected with the Wai Sing Lottery Farm. In his examination in chief the Appel- lant said that between that date and the 16th February, 1897, ho lent to the Fu Shun Tong, through the Respondent, the sum of taels 4,000. In his cross-examination he went further and said that in the 10th moon be lent $1.000 and about the same time $1,500; that each of these sums was repaid a month after it was lent; and that about the end of the 11th moon he lent the taels 4,000, which were repaid in January, 1897. On the 16th February, 1897, the Appellant was called to the family house of Tso Cheong in Hongkong. There he saw the Respondent aud Tso Cheong. The former said he wanted a loan for the Fu Shun Tong of $5,000 for twenty days. It was ultimately agreed that the Appellant should advance the money in ten days' time, and the Respondent said that if he could not come himself, he would send Chan Tai Shang, a foki of the Fu Shun Tong, to fetch it. Accordingly, on the 26th February. 1897, Chan Tai Shang, who was known to the Appellant, came and received from the Appel. lant the sum of $3,000, for which he gave a receipt. On the 1st March, 1897, he came again, got back his receipt, and delivered to the Appellant a promissory note for the $3,000, bearing the chop of the Fu Shun Tong. On the following day the Appellant handed to Chan Tai Shang the further sum of $2,000, and either at the same time or shortly afterwards received from him a promissory note bearing the Fu Shun Tong chop for that amount. The Fu Shun Tong was closed on the 4th March, 1897, and the Appellant has not recovered any of the amounts lent or any interest on them. The Appellant said that Tso Cheong was indebted to him in the sum of $33,500 for money lent.
This story of the Appellant was corroborated by Tso Cheong, who said he was present when the arrangement for the loan was made; that he saw the second sum of $2.000 brought by Chau Tai Shang; that the chop on both pro- missory notes is the chop of the Fu Shun Tong and that in the case of the second note he saw the chop affixed,
Further corroboration was afforded by Chan Tai Shang, who declared that he was sent by the Respondent to fetch the two sums of money lent by the Appellant; that he received them and delivered them to the Respondent at Can- ton; and that the Respondent banded to him the two promissory notes which he delivered to the Appellant. He also said that these notes bore the chop of the Fu Shun Tong.
ward.
THE HONGKONG WEEKLY PRESS AND
lent money to the Fu Shung Tong and have received promissery. notes in acknowledgment of the loans, but that the Respondent was not responsible in respect of these transactions be- cause he held no pecuniary interest in the Fu Shan Tong. The issues, then, which were raised by the pleadings were very simple, and there was no indication furnished to the Appel- lant by the pleadings or by interrogatories that other grounds of defence would be brought for- But at the hearing, while the original defences was adhered to, several other defences were pressed upon the consideration of the Court below. It was alleged that the whole case of the Appellant was founded in fraud and supported by forgery; in other words, that there was no debt due from the Fu Shun Tong to the Appellant, but that the Appellant and Tso Cheong had conspired together to put forward this claim against the Respondent with a view of making good, to that extent, the hopelessly bad debt of $33,500 due from Tso Cheong to the Appellant. It was not denied that the two sums of $3,000 and $2,000 came from the Appel- lant to the Fu Shuu Tong at Canton by the hands of Chan Tai Shang, but it was said, first, that they were in repayment of a loau made to the appellant by the Fu Shun Tong, and, secondly, that they were taken to the Wing UI as a fictitious loan from the Appellant to that firm. It was asserted that the promissory no es pro. duced by the Appellant were forgeries; that they did not bear the inner counter chop of the Fu Shun Tong, as they would have done if they had been genuine, but the outer counter chop; and that they had been fabricated with the aid of Tso Cheong, who had possession of the outer counter chop of the Toug. The same was said with regard to the promissory note produced by Li Tsat. A number of promissory notes of the Fu Shun Tong which were alleged to be genuine were produced by various witnesses.
The only other witnesses called for the Ap pellant were Mr. Ro Wyson and Li Tsat The former gave evidence tending to show that the Respondent was a partner in the Fu Shun Tong Li Tsat was called to produce a promis- sory note alleged to have been given to him by the Fu Shun Tong and similar in character and chop to the promissory notes put forward by the Appellant.
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The case thus made by the Appellant was traversed at every point and in every conceiv- able way by the Respondent. It will be remem- bered that bis answer was confined to the setting up of the defence that he was not a partner in the Fu Shun Tong; that the Appellant never lent him any money; and that he never made, either through the Fu Shun Tong or other wise, any promissory notes in favour of the Appellant. It appears to me that the mean- ing of this defence was that the Appellant might, as alleged in his petition," have'
Such is the substance of the oral evidence on the principal issue as to the alleged lending of the money by the Appellant to the Fu Shann Tong. On a consideration of that evidence I find it exceedingly difficult to make up my mind as to which side is speaking the truth. especially as I have not had an opportunity of seeing and hearing the witnesses give their evidence. The Judge in the Court hele w pressed a doubt as to a statement of the Respon dent and said that in other parts of his cross- examination also his evidence was somewhat shaken. On the other hand he said that “* Tso Cheong in the witness box was a very unsatis- factory witness and did not impress him favour ably," and he commented adversely on the evid- ence of Mr. Ho Wyson. Of the demeanour of the other witnesses he did not speak. It is necessary therefore to examine carefully the documentary evidence with a view of fiuding what light is thrown by it upon the matters in dispute. Even here it will be seen that there is considerable difficulty in drawing satisfactory
conclusions.
On the 15th September, 1896, the Respondent at Canton writes to Tso Cheong-Exhibit AA1 to inform him that "the whole concern is now in a settled state and that he was merely waiting for him to bring money to Canton, so that the same could be paid in, together with other sunis of money.' Then he adverts to the difficulty and delay in getting the shares taken up, and suggests that it would be desirable for him to raise a few thousand for the purpose of meeting the engagements of the Canton House at the time of commencing business," even if he could only obtain the loan for a short time and at a high rate of intorest. It is cer- tainly clear from this letter that there was a want of money for the Fu Shun Tong, but on the other hand it will be observed that the lefter was written before the business had commenced and fees had been received.
[August 20, 1898.
refers to applications for assistance to Wa Chuen and the Appellant, apparently already made or pending, and asks that negotiations with them should be completed on the 26th or 27th for loans repayable in a month or at the most 20 days, such repayment to be made from the proceeds of the tickets for the Chew Fü Examination. It suggests that Wa Chnen, the Appellant, and Sheung will each be able to accommodate them with 10,000 or 8,000 (sic.) It does not appear what stops, if any, were taken by Tso Cheong to comply with the directions contained in this letter. Ao- cording to the evidence of the Appellant, be had already, when this letter was written, lent to the Fu Shun Tong two sums of $1,000 and 1,500, which were either still owing or had been repaid at the date of the letter. But I think the idea conveyed by the letter is that no loan had yet been made by the Appellact; and that the application to be made for one was the first of its kind. On the other band it is to be re- membered that the loan of taels 4,000 is said by the Appellant to have been made about the end of the 11th moon, after this letter was written, although he says it was asked for, not by Tso Cheong, but by the Respondent. Yet it is clear enough from this letter that in December, 1896, the Fu Shun Tong was eager to borrow money from the Appellant and there is nothing to show that at that time the Appellant was desirous to borrow money from the Fu Shan Tong.
The next letter-Exhibit 2-dated the 7th day 11th moon, the 11th December, 1896, is favourable to the Appellant's contention. It was written by the Respondent at the Fu Shun Tong to Tso Cheong at Hongkong. It de- scribes the great difficulty which the writer had experienced is raising a sum of miney required by the authorities to be paid on the 4th of the mouth, and it presses earnestly on the addressee the necessity of his taking part in the effort to find the money required for the distribution of prizes on the 25th or 26th of the month. It
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But the next letter-Exhibit I-shows that the case was changed in January, 1897. This letter is made up of an envelope and two sheets. It was put to Tso Cheong in cross-examination as having been written by him to the Respond- ent. He admitted that both sheets were in his handwriting but said that they did not form one letter but were parts of two separate letters. Both the evidence of Mr. Mok Man Cheung, the translator of the Court, and external examination support his statement on this point. It is no doubt iu a high degree unsatisfactory that a litigant should place before the Court garbled or composite letters, and such conduct induces a strong suspicion that the suppressed portious of the letters contain passages which tell against his case. But, however this may be in the
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ent instance, the meaning of the portions of atters put in evidence is sufficiently plain. The envelope bears date the 28th day,' uo month or year being mentioned. T80 Cheong said that the second part-Exhibit `Ib
forwarded before the business was actually started," and that the second part- Exhibit Ia-was written in the 10th moon of the 22nd year (November-December. 1896). On the other band the Respondent said that he received the letter on the 2nd January, 1897. Exhibit. Ia is in the following terms:
"I clearly mention the amount of $50 as remuneration to Li Shui Shek and he was exceedingly pleased on hearing this and he said
he had a comrade and that this sum must be partly given to him so as to avoid any difficulty. He said again that he did not know whether the money collected for lottery tickets at Canton had been paid, or in any way disposed of, that if there was any surplus he would request that $10,000 should be sent to the Kwong Shing Lung jade stooo shop. Lower Lau Yan Gate Street. That of this $10,000, $6,000 was to be regarded as money deposited with Kwong Shing Lang with the request that a receipt might be given stating what date the money was to be withdrawn, the remaining $4,900 should be, treated as payment to Li Shui Shek, and received on his behalf by the Kwong Shing Lung. There is no need to state in writing when this money was to bo withdrawn. Why Shui Shek wanted all this to be done in this manner, he had a certain ob- ject in view intending to hoodwink his col- leagues, .nd by so doing he could prevent any dispute that no money had been paid in. When the prizes came to be distributed not only the money could be repaid, but he would also be able to give assistance to some extent. Now this is a matter consistent with reason and human feeling and I have perfect confidence in him, but when the time came how much assis- tance he would give us I do not know. ́As to these several thousand dollars there would not be any failure or default. I have been a friend of his for a long time and I can somewhat