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bankrupt had suspended payment. He was also understood to say that four firms were reaping the benefit of the estate to the exclusion of the other creditors, and the object of the petition was to put all on the same footing.
Mr. Wakeman said it seemed a legitimate application.
His Lordship-What would the costs be in a proceeding like this?
Mr. Wakemen-Between $300 and $400, The application was granted.
Re Tin Po Lan firm exparte Leung Shan Kuo. Mr. J. Hays, for the petitioning creditor, applied for a receiving order stating that debtor had suspended payment.
Mr. K. Harding opposed the application, and a discussion arose on the question of procedure. His Lordship announced that he would give his decision to-morrow.
Re Hau Fuk Cheung exparte Hung Yuen Bank. Mr. Beavis for the petitioning creditor called a olerk to prove notice having been adhibited to the entrance at the Court buildings. His Lordship-Posting a notice should be done by the court officials. I don't know whether there is any rule or not, but in future such posting should be done by the court officials.
Mr. Beavis added that defendant had left the Colony.
The application was granted.
APPLICATION FOR A NEW ISSUE.
Re Lai Hung firm exparte Ma Lung Ko. Mr. H. P. Hett gave notice of motion for a new issue, the question raised being whether a certain man was a partner or not.
His Lordship said the issue would be directed. Mr. Hett then made a motion for the arrest of the man who was said to be in hiding. His Lordship reserved his decision,
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. WISE (PUISNE JUDGE),
A CLAIM FOR COMMISSION.
The case in which Chan Yun Shang, broker, sued Lai Sui Tang for the recovery of $200, being commission agreed to be paid to com- plainant for obtaining a mortgage of $20,000 on certain premises, again came before his Lordship. Mr. C. F. Dixon appeared for plaintiff and Mr. Thomson for defendant.
His Lordship held that plaintiff had secured a man who has willing to advance the mortgage but the transaction fell through owing to defendant's title being bad. Plaintiff performed his part of the agreement and judgment would be entered for him with costs.
IN ORIGINAL JURISDICTION.
Friday, 24th November.
BEFORE SIR FRANCIS PIGGOTT (CHIEF
JUSTICE).
A DISHONOURED BILL.
His Lordship delivered judgment in the case in which the Russo-Chinese Bank claimed from the Sam Yee Company, Ltd., late of 275 Des Voeux Road, and Chow Tit Sai the sum of Rupees 40,000 due on a dishonoured bill of exchange.
THE HONGKONG WEEKLY PRESS AND
the bill being on the understanding that the signature of another reputed wealthy person should be added. It is clear that this understanding applied to all the previous hills. They were drawn to the order of the compra dore of the Bank, and by him endorsed to the Bank. The Sam Yee Co. in Hongkong, as also the establishment in Bombay, have failed. The defendant alleges that the signature of Chow Tit Sai is a forgery.
The first point raised by: Mr. Sharpe was that the plaintiff had not proved that the signature of Chow Tit Sai was genuine; that this ouus was on the plaintiff, and therefore that the defendant was entitled to judgment. It is unnecessary to consider the abstract question whether when a bill is purchased, in the ordinary course of business, the burden of proof as to the genuineness of the signature lies on the holder of the bill, for in this case, the evidence of the compradore was that he had seen Chow Tit Sai's signature on the other bills, and that so far as he could tell the signature in question was his; and further, that when he told him that the bill was dishonoured Chow Tit Sai had said "all right, I'll make it good, you need not be afraid," and that he had asked if there had been any trouble about the others. I am of opinion that this is sufficient evidence to support the case of the Bank. There is, however an allegation of forgery, and if it is proved it would naturally destroy the compradore's evidence on this point. This being the state of the case, the burden of proving that the signature is forged lies on the defendant who alleges it. This question of onus seems to be an important one, as none of the previous bills were forthcoming. If they had been, the question of the genuineness of the signature would have been easier to solve, as they would have furnished a means of comparison with the signature on the bill on which this action is brought. But they are not according to the custom of banking retained by the Bank; they pas-ed into the possession of the drawer or the acceptor, and thus the Bank, were the onus oc the plaintiff, would be deprived of an important test of genuineness. I agree, however with Mr. Sharpe that their production, even if the signature in question had been shown to be identical with those on the other bills, would not necessarily have concluded the question, as it might have been possible for all the eight signatures to have been forged. But clearly this would be for the defendant to prove.
The defendant then in order to prove his allegation of forgery, has produced a great deal of evidence of bandwriting, which reflects much credit on the ingenuity of his solicitor who got it together, and which was made the most of by his learned counsel. If he has failed, as I think he has done, it is through no fault of his; if the signature is in fact forged, the result that the estate must pay this bill is an unfortunate circumstance, the consequence of death, which often comes at a time when many things which the deceased alone can attend to are in an unfinished condition, and which his representa- tives are unable to deal with properly. It is a misfortune; but I cannot for that reason depart from what I conceive to be the principles of law applicable to the case. The first princi- ple relates to the reception of a statement made by the deceased in an affidavit filed in an inter- locutory proceeding in the action. On the hearing of a summons for judgment on a specially indorsed writ, Chow Tit Sai, then being alive, filed an affidavit in which he denied the genuine. ness of his signature, and obtained leave to defend the action. Section 338 of the Code of Civil Procedure was referred to as authorising the reception of this affidavit | at the trial. I think this section refers only to cases coming within section 338, and applies only when there has been a previous permission to take evidence by affidavit. I was then referred to the English practice under- Order 37, rule 1; and certainly some of the cases seem to warrant the proposition that the Court has a discretion to depart from the well- established rule that a dead man's statements are only admissible when they are against his interest. I have not examined the cases at any The evidence of Mr. Taylor, the former length, because it was conceded that if this manager of the Bank in Hongkong, was may be done, it is purely a question of discre- to the effect that as the Company was tion, and in this case I could not exercise such Chinese Limited Company, one signaturea discretion in favour of receiving the state- was not considered sufficient, the purchase of 'ment as evidence. For I must either believe it
Mr. H. E. Pollock, K.C., (instructed by Mr. J. Hays) appeared for the plaintiffs and Mr. E. H. P. W. Sharp, K. C. (instructed by Mr. Goldring) represented the second defendant.
His Lordship said-The Russo Chinese Bank as holders for value sue the defendant, who is the executor of the original defendant Chow Tit Sai, on a bill of exchange for R 40,000 drawn by the Sam Yee Company in Hongkong on the Sam Yee Company in Bombay and accepted by them, which Chow Tit Sai also signed as drawer. The bill was the last of a series of eight bills drawn in a similar fashion, for various large amounts at intervals of about three weeks.
f
November 27, 1905.
altogether or reject it altogether. Having in view the circumstances under which it was made, I cannot give it entire credence, for that would be to conclude the action at once. Partial credence is impossible; and, therefore, if I' admitted it with no intention of accepting the statement as true, I should be adding what is of itself of no weight to a mass of evidence which is not of itself conclusive. I therefore reject it altogether.
The second principle affecting the case is that such an allegation, as of fraud or forgery, must be proved up to the hilt. There must be left no possible loophole of escape from the conclusion that what is alleged to be a forgery is in fact a forgery; no possible hypothesis that it may be in fact genuine.
Now the peculiar feature of this alleged for- gery is its apparent stupidity. The defendant's case is that Chow Tit Sai never did write, and never could have written the signature on the bill, because he never did write, and never could have written, his name in any other way than he did on the documents produced which undoubted- ly did bear his signature. If this be so, the forger has been reckless in the extreme, for he has produced something which, to the eye and at first sight, in no way resembles those genuine signatures. The comparative examination made by Mr. Au Fung Shi, the Chinese writer in the Registrar's offloe, was only elaborate on the Such an examination, to be con- face of it.
clusive, would have to be carried much further; it would have involved an almost scientiflo re- search into the consequences on the form of every stroke in the three characters, of using a fine brush in a confined space by a man accus- tomed to use a thick brush and writing freely. It must be borne in mind that in a large number of cases expert evidence of this nature is used to prove the positive rather than the negative. Its true value depends on the fact that however much a man may endeavour to are certain conceal bis handwriting, there tricks or twists which he cannot avoid, and which makes detection easier.
I should have been disposed to attach more weight to the n-expert evidence, for most of the witnesses relied almost entirely on the palpable dissimilarity of the signatures one of them saying, almost without consideration, that Chow Tit Sai did not sign this bill: that he never wrote so small: that he could not do it. And others said in effect-Compare this signs. ture with his signatures admittedly genuine : one is fine and cramped, the others are thick, bold and free. But this non-expert evidence falls short in one essential. None of the witnesses had ever seen Chow Tit Sai sign a bill of exchange, or had ever seen his signature on such a document. Their evidence is consistent with the fact that he had a commercial signa- ture which differed in many essentials from his usual signature, caused probably by the use of a fine brush. The evidence of Mr. Wong, the Court Translator supports this possibility, for he said that the signature on the bill seemed to be written by a very steady hand; which I think bears this interpretation: that the hand which wrote it was writing in its customary manner; was certainly not the hand of one who was copying or forging another man's signature.
The only reasonable explanation of this is Mr. Sharp's theory that Chow Tit Sai's signa- ture was forged on all the series of bills. It may be that they were. But then we come back to the evidence of the compradore which is unshaken; the forgery of the whole series of signatures is inconsistent with Chow Tit Sai's, apparent auxiety when he heard that this bill had been dishonoured, as to the fate of the”. others. The evidence of forgery adduced, there- fore, does not satisfy the test which I have laid down; it does not close the door to every other reasonable explanation.
I must ald that both aspects of the case-the possibility of the signature having been forged, and the assertion that it was forged-is yet another illustration of the remarkable facility with which the Chinese mind, when it is inclined to fraud, deteols the weak spots in our systems, whether of banking or of law, and utilizes them to the best and most fraudulent advantage. I hold that it has not been proved that the signature on the bill is not Chow Tit Sai's. The plaintiff Bank is therefore entitled to judgment with costă.
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