154
Mr. Hardi g-It does not settle the father's claim.
His Lordship -- He must hare known she was making this c aim.
The Couri. then ros.
Tuesday, 29th August.
IN SUMMARY JURISDICTION,
BEFORE. MR. A G. WISE (Puisne' JUDGE).
MOORDEEN V. MOOSDEEN.
The plaintiff, Mrs. Zaharab Moosdeeu, of No. 124 Wanchai Road. claimed from the defendant, A. R. Moosdeen, of Messrs. Arnhold, Karberg and Co., Canton, the sums of 3110 due for the months of April and May, and 3160 due for the months of June and July, for alimony, after the agreed rate of payment.
Mr. E. A. Bonner (of Messrs Dennys and Bowley) appeared for the plaintiff, while the defendant, who was absent, was not represented. Mr. Bonner stated that the plaintiff's claim in the first action was for 380 for the month of May, and $30, arrears for the month of April, at the agreed rate. In the second action she claimed 880 for the month of June, and 80 for the mouth of July. The writ was served out of the juri-diction of this court, and he would prove service thereof.
Chan Fuk, an interpreter in the office of Messrs. Dennys and Bowley, and a British subject, stat d that on the 19th August he went to Messrs. Arnhold, Karberg's office, at hameen, and saw the defendant. He said to him Here are two writs for you." Defendant refused to take them and took witness to the British Consul. The Consul told him he had no right to serve the writs, and to clear out of hameen, at the same time saying "If you are beateu you must not come here and complain." Witness agan went to the office of Messrs. Arnhold, Karberg and Co. on the 21st when he found defendant sitting at his desk. He put copies of the writs thereon and walked out on to the verandah. Defendant took the wiits, ran on to the verandah and threw then at witness. He then caught hold of him and said "You take the writs back or I He then told the will put you under arrest."
THE HONGKONG WEEKLY PRESS AND
After hearing the evidence His Honour gave judgment for the defendant with costs.
Wednesday, 30th August.
IN ORIGINAL JURISDICTION.
BAFOR SIR FRANCIS Pinsort (CHIEF JUSTICE).
JUDGMENT IN IMPERSONATION CASE.
is
[September 4, 1905.
in law of registration, which does not make due provision for a proper investigation by the Land Officer of the identity of the prties by comparison of their Chinese signatures. This. cmission it was which made what is really a clumsy fraud possible.
reference to costa, I
Mr. Pollock-With shoul I like to say a few words.
was
His Lordship I have not mentioned costs. Mr. Pollock-A point which occurred to me was that this brother, who His Lordship delivered judgment as follows
more or less crazy, Was left pretty much in the case in which Lo Kwong Chui, a student to himself. He is a brother of the plaintiff of Macao, brought an action against Vincenzo in this case and I submit, my Lord, al- Pietro Mu-so di Peralta to have a mortgage thongh the deed must be sat aside in accor set aside and its registration cancelled :- dance with your judgment, it does not follow The mortgage on which the defendant relies the plaintiff would be entitled to costs. I sub. in this case a palpable fraud. It is
mit the plaintiff is not entitled, inasmuch as quite possible that owing to the use of the forgery was carried out by such a near name which was not the name of the relative, who was admitted to be crazy and who true owner of the property mortgaged, the case was not properly looked after, to costs. There might not fall strictly within any of the defini- are circumstances in the case which would tions of forgery given by Stephens in his Digest justify your Lordship in exercising the dis- of the Criminal Law; though I have lit le doubteration which you have under the code of cost+ that such a case as the present, if it had occurred and make an order that each party should bear in England, would have b en added to the list their own costs. of cases giveu in Article 356 of the Digest illustratie of what is meant by making a false document." But even if this were not so, the offence of obtaining money by false pretences
a.
was committed.
י.
:
The argument of the defendant's counsel, pressed to its logical conclusion, comes to this that although the maker of the deed had been found guilty of one or other of these offences, yet the true owner is not entitled to have it cancelled or set aside if he comes to the Court under circumstances which raise suspicions as to his documents of title: in other words, that the deed found to be a fraudul ut deed is to remain of full effect in favour of the non-fraudulent party who has benefited by it. This argument is said to be supported by the fundamental maxim of equity that he who comes into equity must come with clean hands." The attempt to make this principle applicable to the present case shows how carefully the maxim must be appli d. The suspicions circumstances connected with the deed of assignm nt by Lam Sui Man to the five sons of Lo Chuk Chi ar-, that the purchase money was paid to the fathr: that he retained control of the property as evidenced by the re-transfer by his orders of one of the sou's alares
to his mother that he received the reuts: that he had made similar arrangements Witness-Yes. I told him they were writs. with regard to other property of his in Macao; and he remarked-I suppose. they are about and that the whole transaction looked very like
I said they were.
an arrangment made with a view to d-fraud my wife?
Mr. Bouur-Did he say a wit had been creditors in the event of his going into bank- sent to t'e Consul to serve on him?-Witness-rupter in Hongkong. The trus motive may, of course, have bee to make provision for his sons, the consideration being natural love and affection. But for the purpose of th argement I assume that the other assumption is the
compradore to call a policeman and, on One arriving, witness was eventually forced to take
the writs back.
His Honour--Did Moosde n know what the papers were?
Yes.
Mr. Bouner, in support of his couteution that the service was good, referred His Lordship to Dowling's crse in the Annual Practic: wherein it was stated that if the depocent iuformed the defendant of the nature of the process, and the copy was thrown down, that was sufficient roof of service.
His Lordship'd that the service was good. The plaintif sta ed that she had been married to the defendant for 24 years. He told her he was getting a salary of $175 a month. She left hita because he would insist on haring a Chinese woman in the house, They had five children, She left him in Norgul r of last year, and la':r went to Canton with her brothes to settle with him about Ler maintenance. He agreed to allow ber 880 per month, and bad paid her from November until the following March, and $:0 for the month of April. Since then defendant had not paid her, and had advertised in the papers that he would not be responsible for any debt she contracted. The agreement as to maint at co was a verbal one.
His Honour-I think $80 out of $175 is a large order, and the only evidence is that he pomised her the amount.
Mr. Bonner-Possibly the plaintiff is mistaken a! out his salary, as he is in a very goed position.
His Honour gare judgment and costs in bth cases.
WONG KER . SIK LEUNO KIT.
The plaintiff claimed from the defendau the sum of $236.35 being on account of goods sold
and delivered.
Mr. S. W. Tso represented the plaintiff and Mr. F. X. d'Almada e Castro appeared for the
defendant.
#urrect one.
Now in the text books the maxim is illus. If a person seeks trated by the following case. to cancel an instrument ou the ground of fraud. equity will not interpose on his behalf if he has been guilty of wilful participation in the fraud But, the books continue, the maxim must be under tood to refer to misconduct iu regard to the matter in litigation, and not to any misconduct, however gross, which is unconnectad with the matter in litigation, and with which the opposite party in the cause his no counec. tion. Applying the maxim thus explained to the suggestion made as to the true signification of the father's method of d aling with his with the iden property, it is clear that
of defrauding creditors the def ndauf in this case has no bàng to do: that question could only arise in the Court of Bankruptey. I bold, therefore, that the maxim does n ́t app'y to the present case. The defendant, however. is entitled to little sympathy; for he acted in the face of the warning given to him by his solicitor, and, as it s ems to me. under the very
pe uliar circumstances of the ca e, with no- reasonable h ste in; pressing the mortgage through without a proper investigation of file. elttough Mr. Bonner did the best he could for hiru. be advising hini of the risk he was run- ing. The plaintiff is theref re, entitled to the relief he asks and judgment must be entered for him in the terms of the prayer for relief. I propose to draw the attention of the Govern ment to what seems to be a very serions emission
His Lordship-I am somewbat impressed by what you say, but under the circumstances I think, as I have said already, that defendant acted most rash'y and not in accordance with the advice which bis solicitor Mr. Bonner gave him. If it had not been for that I think I might have made an order somewhat as you sugg st. I think and r the circumstances I cannot.
Mr. Pollock-Another point I am instructed to bring before your Lordship. It is hardly necessary for plaintiff to employ two counsel.
His Lordship-That is for taxation.
Mr. Pollock-Would your Lordship gare an intimation?
-i
His Lordship-It is a legitimate point to raise, but it is simply a question of taxation.
Mr. Pollock It would probably save time if your Lordship gave an int mation.
-
His Lordship-I don't think so. Subsquently his Lordship asked how the judgment was to be communicated to the Land
Office.
Mr. Follock said there wou'd be no difficulty about that.
Mr. Sharp thought the simple way would be to register that judgment.
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. WISE (PUISNE JUDGE).
A CHINESE PROMISSORY NOTE. The case in which Lik Yik Tak of Canton sued the Ya Wo Chung firm of 64 Bonham Strend East for $100 claimed on a promissory pote
Court. came before the
The point to be debated
whether the document was a promissory note or not.
Mr. O. D. Thomson appeared for plaintiff and Mr. R A. Harding for defendant.
WHE
Mr. Thomson suggested that the case should stand over pending the decision in another case before the Full Court. That course would not injure the pocket of any of the parties.
His Lordship did not think the case should he adjourned at present, and indicated to Mr. Thomson that he had better appeal.
Mr. Thomson replied ti at he would appeal. His Lordship asked if Mr. Thomson wished for an adjournment as there was another case to be heard.
Mr. Them: ou said he did not press that.
His Lordship held the document was not a promissory note and granted stay of exécution ou condition that $50 was paid inte Court, making the total security for costs $150.
LITIGATION VER A LOAN.
Li Hing Lau, of 35 Stanley Street, Hong- kong, sued the Po Yik Company and another for $400. money lout by plaintiff to defendants. Mr P.W.Goldring conducted the case for plain- tiff and Mr. Holborn w acted for defendants.
laintiff deposed to having been asked it January of last year for a loan by Ho Tang
Sok, and he recollected going. accompanied by a friend, to the Po Yik Company's" shop, where he sa * man whom Le informed that he had brought the money. He gave the money to Yue Yan Ya, defendant's brother.
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