Page
March 20, 1905.]
dacing the broker's written authority to sell. Mr. D'Almada added that he speaks Chinese but cannot real or write that language but he keeps clerks who do both. He did not however call one of the clerks in to translate the do- onment becAUSE he accepted the defendant's statement. Later in the same day there was a meeting at Mr. D'Almada's office between the plaintiff and the defendant which has a most important bearing upon the question I a now discussing to which I will refer later. In the meantime I will deal with the question -hat effect should be given to what took place at the morning's interview. First it is to be observed that though Mr. D'Almada cannot read Chinese he keeps clerks who can and that while he does not read Chinese he speaks the language. Is it likely that the defendant would have produced to such a man the broker's authority in support of his statement that the houses were rented for $650 if the words which bear out the statement had not been on the face of the document? How was he to know that Mr. D'Almada did not read Chinese or that he would not call in one of his clerks to read the document to him? Next it is to be remembered that according to the plaintiff's evidence the defendant then knew that the houses were not let for $650 but that the majority were unlet and only two let for $196. The suggestion is that the defendant, though he was then under no obligation to enter into the agreement to purchase, and though he was well aware of the evil reputation of the houses and consequently of the probably worthless cha:acter of his bargain WSS yet of so recklessly speculative a character as to be ready and willing to risk 361,500 on the chance that if he subsequently found it impossible to re-sell at a profit he would be able by means of a for- gery to repudiate his bargain, and that to enable him to sustain his case to repudiation he in vented his statement to Mr D'Almada respect ing the rental which his purchase was then bringing in! That theory of the plaintiff is however undoubtedly open to the criticism that the whole fabric of the intended fraud would have been destroyed had Mr. D'Almada called one of his clerks to transla'e the document which the defendant handel or showed to him to support his statement as to the rental. The risk in that respect would have been so great that it must be assumed that the defendant spoke truly when he said that the broker's authority would bear out his assertion as to the rental; and that if the defendant is guilty of the crime imputed to him he must have added the words previously to going to the office of his solicitor Mr. D'Almada. The probabilities appear to me te favour the view that the added words were on the document at the time of the defendant's visit to Mr. D'Alamada on the morn- ing of the 27th May 1903. I do not think the defendant would have ventured to make the assertion he did to his solicitor with respect to the document he produced, unless that document bad at the time contained the words "Reat for each month $650." I assume therefore that those words were on the document at the time of the
CHINA OVERLAND TRADE REPORT.
he heard the plaintiff talking to the
agree to
185
was made to him by the plaintiff through the
broker, and that he as a fact sigued the agreement to purchase relying upon that representation; and that he made no inde- pendent examination of the property until after he had bought it, when he discovered the misrepresentation that had been made. The property was easily accessible, and the defendant could have made an inspection had be pleased before signing the agreement; but I find as a fact that he did not. The fact that he had the means of discovering the fraud is therefore immaterial. (Redgrave Hard 20 Ch. Div. 1).
I therefore hold that the defendant is entitled to rescind the agreement of the 28th May 1903. mide between himself and the plaintiff for the purchase of the property described therein; and that the defendant is entitled to receive back from the plaintiff the sum of 86,150 paid as bargain money with interest thereon at eight per cent. per annum from the 28th May 1903.
Judgment therefore is for the defendant with costs.
Saturday, 18th March.
IN CRIMINAL JURISDICTION.
BEFORE SIR H. S. BERKELEY (CHIEF
JUSTICE).
REFUSING BANISHMENT.
Mr.
Chang Mun was charged with refusing the order of banishment that had been made. E. H. Sharp, K.C. (Attorney General), înstructed by Mr. Morrell (of the Crown Solicitor's office), prosecuted. The prisoner, who pleaded not guilty, was not legally defended. The following jury was empanelled-Messrs. J. D. Kinnaird, C. L. Bruckner, J. Benjamin, F. W. White, L. P. Glessman, C.M.G. Burnie and D. Datan.
On the 7th January prisoner was discharged from Victoria Gaol, where he had been imprison- ed for larceny. Shortly afterwards the Governor in Council made an order for the man to be banishe Prisoner was taken to a Canton steamer but returned, and was re-arrested on the 22nd January.
defendant endeavouring to rise the price from 861,500 to $63,000; that the defend ant refused to
the rise; and that ultimately producing the same doon- ment which he had produced in the morning in support of his assertion that the rental was $650, the defendant showing it to the plaintiff said "No! Your order is for $61,50). 13 not that your order?" Mr. D'Almada says that the plaintiff looked at the document produced to him by the defendant aud said "Yes," and the agreement was thereupon signed; and the bargain money paid on the following day.
Now the importance of that evidence lies in the fact that the plaintiff on the document being shown to him by the defendant made no reference to the words "Rent for each month 8650 assuming, as I think I most, that those words were at that time on the face of the docu- ment. The explanation offered for him is that if they were there he did not see them; that the question between himself and the de fendant was then confined to the amount of the purchase money which he wished to raise from the amount stated in the document, and so he may very well have overlooked the words relat- ing to rental. However that may be, it is hard- ly conceivable that the defendant assuming those words were there and known to him to be added forgeries placed there by himself for cer- tain possible future contingencies, would for a second time that day have deliberately incurred the risk of detection and exposure. On the other hand it is conceivable that the plaintiff may have seen the words "Rent for each month $659" and yet not repudiate them; for on the theory of the defence the time for his so doing had not arrived, and it must be remembered that he knew nothing of the conversation between the defendant and his solicitor at the morning interview when the defendant had produced the document in support of his assertion regarding the rental he expected to receive from his projected purchase. On the theory of the defence for the plaintiff to have repudiated the words then would have been to destroy his chance of selling the pro- perty and would have defeated the very object he had in view in inserting them. The inter- view just referred to had taken place at Mr. D'Almada's office on the 27th May. On the 15th June the defendant consulted Mr. D'Almada as to his right to rescind the agreement. He had, he says, in the meantime after the signing of the agreement and aying the deposit, discovered the fraud that had been per petrated on him. On going to see his purchase he had for the first time become aware that four of the six houses were empty and two only let at sums which aggregated $196 a month. On the 15th June the defen. dant again produced the broker's authority to sell. and Mr. D'Almada says it appeared to him identically the same document which he had produced at the two interviews already referred to. The defendant left the document with his solicitor, and next day on the plaintiff's arrival at the office for the purpose of completing the defendant's visit to his solicitor on the morning sale and receiving the balance of purchase of the 27th May. The question is were those money, the document was handed to the defend-
REFUSING TO PROCEED TO SEA. words inserted in that document by the defendant, who producing it said he refused to
Twelve of the crew of the British Steamer ant for the purpose of furthering the nefarious complete the bargain as the rental was not as
Boscombe were charged by Captain Mackay, design imputed to him by the plaintiff, or were represented on the broker's written authority. Master of the said ship, with impeding the they on the document when it was handed to the According to Mr. D'Almada the plain-progress of the ship by refusing to proceed to defendant by the broker on the previous evening. tiff then said
Let me see the order," sea since the 14th inst. in Victoria Harbour. It seems to me that what took place at the that on its being shown to him he examined Robert Mackay stated: I arrived in port interview between the defendant and the plaintiff it and declared that the portion relating yesterday afternoon, and received ordera at Mr. D'Almada's office on the afternoon of to the rental had not been inserted in the through my agents to proceed to Sasebo in the 27th will throw the light that will enable document by him; that the defendant then Japan. I informed the crew of this through me to come to a proper decision on that ques- said "You "admitted the document to be the mate. The defendants informed the mate tion. In order to understand the attitude of written by you at the time I signed the agree.
that they would not proceed to Japan. I the plaintiff on that occasion, and to appreciate ment to buy the property; now you deny that brought the men on shore this morning when the value of what he did or said, or omitted to
you wrote all of it.* Plaintiff replied-Yes, but they were interviewed by Your Worship. say, it is necessary to bear in mind the fact I did not then carefully examine it." With re- that he was not present at the morning interference to this reply Mr. D'Almada said "I view between the defendant and Mr. D’Ålmada.
was present at the time. I saw plaintiff then He did not know that Mr. D'Almada had looking at the document. He appeared to me expressed a doubt as to the wisdom of the to be then reading it." The upshot was that defendant in making the purchase, nor did he the defendant refused to complete, and in Octo- know that the defendant had justified his action ber of the same year. some five months later, the by stating the large rental he would receive. plaintiff commenced these proceedings. No ex- At the interview in the afternoon there were planation of the delay is given, but it has had no present only the two parties and their weight with me in the consideration of the sharp solicitor Mr. D'Almada says that while he issue joined in this case between the parties. It was perusing the title deeds of the property seems to me for the reasons I have given that which had been brought by the plaintiff the probabilities are on the side of the defendant. preparatory to preparing the agreement I believe that the representation as to the rental
Prisoner was found guilty. His Lordship said :--We do not want men of your description in the Colony.
After being ordered to depart therefrom and remain there out for five years you returned, and are liable to imprisonment. I am going to send you to prison with hard labour, and you will be banish- ed again. China is a vast country, and there is plenty of room for you to look for work there. One year's hard labour.
The Court was adjourned till Monday.
MARINE MAGISTRATE'S
COURT.
Tuesday, 14th March.
BARNES-
BEFORE HON. CAPT. L. A. W.
LAWRENCE, R.N. (MARINE MAGISTRATE).
By the Court: My cargo is ooal, which was shipped at Cordiff. I was to take same to Hongkong to await orders. I have received orders to deliever the coal at Sasbo.
The agreement was here produced and read over to the defendants, who said they under- stood it.
i
E. Vance, A. B. stated: I have no knowledge- of this charge that has been brought against me. The mate only asked us if we wished to go, implying that the choice lay with us as to whether we went or not.
Robert Smith, Chief Officer of the s.s. Boscombe, stated:—Lost evening the Captain