December 2, 1905.]
Greetings were received from kindred Societies at Shanghai, Tientsin, Yokohama, Singapore, Amoy, Manila, Foochow, Swatow and Wei-hai-wei.
SUPREME COURT.
IN ORIGINAL JURISDICTION,
Friday, 24th November.
A COMPRADORE'S CLAIM. His Lordship gave judgment in the action in which Yung Piu Lo, compradore to the Deuts- che Asiatische Bank, claimed from Yang Fan Kin, recently shroff of the same institution, the sum of $21,400 under and by virtue of an agree ment in writing dated 3rd October, 1903.
Mr. H. E. Pollock, K.C., instructed by Mr. C. D. Wilkinson (of Messrs. Wilkinson and Grist) represented the plaintiff, and Mr. E. H. Sharp, K.C., instructed by Mr. H. W. Looker (of Messra. Deacon, Looker and Deacon) appeared for the defendant.
CHINA ONERLAND TRÅDE REPORT.
I do see on my notes that Mr. Felix) Kiliau, the German clerk, said that he did not put his initials on a cheque for this amunt: but it is understood that he did not. One of he points in issue is whether the cheque was pai" without the initials, or whether they were forged.
There seems to have been an enquiry made into the matter of the missing cheque by the compradore that same evening, and I admittel evidence as to what took place at this enquiry. I admitted this as being part of the res gestas. I confess to having been rather alarmed at the amount of hearsay evidence which this decision sanctioned it included statements by a per- son who had since absconded as to the chop sad initials being on the cheque. It did not seem however to be necessary to have the point more fully argued, as aliunde there is a certain amount of evidence that the cheque was appar- ently in order. The counter clerk who handed over the notes to the person who had presented the cheque said that he did not remember whether the blue pencil initials were on the cheque though he was sure that the "Paid Chop" was on it. He said, however, that so far as his duties were concerned the cheque appeared to be in order, and his duty was to see that those blue initials were on it. The probabilities of the case are in favour of this being so; and I, therefore, have come to the conclusion that the initials of the German olerk were forged: and that these forged initials were on the cheque at the time it came into the defendant's hands, The question therefore takes this form: Is the defendant liable for having paid the cheque on forged initials: such initials having been put on by some clerk through whose hands the cheque passed before it came to the defendant.
His Lordship said-The plaintiff in this action is the compradore of the Deutsche Asiatische Bank, and the defendant is the banknote shroff. It is brought to recover on several grounds the sum of $21,400 paid by the shroff on a cheque adimitted to be forged, which sum the plaintiff had himself been required to pay, and had paid, to the Bank under this agreement as compradore with the Bank. The progress of a cheque from the counter where it is presented for payment, to the shroff in charge of the notes, and of the cheque with the notes necessary to pay it from the shroff back again I go one step further. It was explained that to the counter where the payee is waiting, was Mr. Kilian's initials were in fact a German described with great particularity. It is a long "f" and a "k"; but I cannot say that they system of checks and counter-checks-some were easily decipherable as such. They appeared Chinese, some European in their origin, devised to me, and must have appeared to a Chinese with much ingenuity to prevent frand. It had, elark, as a series of blue strokes.
But even however, one weak spot which was detected by taking them to be German characters, they were some fraudulent Chinaman who evaded all the easily to be copied; and I am of opinion that the precautions, passed a false cheque through and forger took care that what he put on the cheque obtained the proceeds. The question is whether should pass without difficulty as the German the shroff is liable to his compradore for hand-clerk's "well-known signature: that they were ing over the notes necessary to pay the cheque meant to, and did deceive, the defendant. Under on to the counter clerk, either under his agree. such circumstances can the defendant be held ment or on any other of the grounds insisted liable? on in the argument. No charge either of originating or of participating in the fraud was made against the defendant, but the stress of the case made against him was one of negligence in not detecting the fraud.
The stage in the Bank procedure which it is necessary to dwell on is the verification of the cheque by the European staff.
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After a cheque comes from the counter it passes into the hands of a Portuguese clerk who initials it if he is satisfied that the drawer's account is sufficiently in credit: he then passes it on to a German clerk who examines his own book and initials the cheque: he passes it on to the Chinese cask-book clerk, who makes an entry in his book, chops the cheque with what was called a "Paid Chop," and then passes it on the banknote shroff, that is, the defendant, who counts out the notes, and passes them on to the counter-clerk. 'The shroff's duty, before handing over the notes, is to see that the proper initials are on the cheque: that is, according to the plaintiff, the initials of the German clerk. This was corroborated by the Manager of the Bank who said that the authority to pay was the fact that these initials were on the cheque : and that the "Paid Chop" being on the cheque without the initials would be no authority. Instructions had been given to this effect, and it would seem that they applied to all the olerks through whose hands a cheque passed; they should take no further action if these initials were wanting. Whether the initials without the chop would be sufficient is a question which does not arise, as it was practically conceded that this chop was on the cheque in question. The probabili ties are also in favour of this: as if the fraud was perpetrated, as was suggested, by the Chinese cash-book clerk, it is not likely that he would have omitted this formality. The cheque was missing at the end of the day, although an entry appeared in the shroff's book that he had paid $21,400 on a cheque. There was no corresponding entry in the ossh-book alerk's book.
First, under his agreement with the com- pradore. A good deal of discussion arose as to whether the translation certified by the
Court Translator was accurate,
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"Should there be any shortage, mistake, “loss, embezzlement, absconding, or any other “such like ovils in respect of any bank notes " and monies paid or received through the hands of Young Fan Kin, and all other matters, the responsibility will solely rest with Fan Kin." It was contended for the plaintiff that me there was in fact a “shortage,” B mistake,' or a "loss," in the shroff's account at the and of the day in question, the case fell ernotly within the meaning of the above paragraph. I do not agree. These three words are followed by "embezzlement" and "absconding," which must clearly be interpreted to refer to sots of the shroff himself; and I am of opinion that the three preceding words must be governed by the same principle, and must refer only to
shortage," 'mistake," or loss"
resulting from the shroff's own sots. This interprets- tion is borne out by the reason of the thing. For otherwise, the shroff would become liable for the misfeasance of other people; he would in fact become a compradore: indeed, his liability might be greater than that of the compradore, for he would be liable in respect of a fraud committed by one of the European clerks. It is only assumed that this fraud was committed by the Chinese cash-book clerk: but it might have been committed by the Portuguese clerk. The compradore's liability is limited to misfeasances by the Chinese staff whom he engages, and Mr. Pollock admitted that the shroff's liability could not exceed that of the compradore himself. This interpreti- tion of the agreement is also borne out by the evidence of the plaintiff himself, who admitted in cross-eximination that if a loss were caused by the dishonesty of others, and there ware no negligence on the shroff's part, he could not hold him liable.
I entertain no doubt that such a certified translation may be attacked, for the Court translator cannot be infallible. A great deal was said during the argument which shows that the existing procedure for obtaining his translation of a document is unsatisfactory. It was suggested that he merely affixed his certi- floate to a translation supplied by one of the parties, and that it was therefore hopeless for the other party to put a translation before him. It is of course advisable that translations of Chinese documents should be agreed before putting them before the Court. But if agree ment is not possible, I cannot withdraw from the other party the right of challenging the translation. I will endeavour to put the ques- tion so far as it concerns the Court Translator on a more satisfactory footing in future. For the present, however, I must deal with the evidence given to rebut the trauslation of this document which was put in by the plaintiff. Mr. Au Fung Chi, the principal Chinese writer in the Registrar General's Department, was called. But the difficulty I have in placing much reliance on bis evidence is that he does not speak or understand English. His evidence had to be translated by the interpreter, and it was impossible to get a very clear idea of the basis on which his somewhat ingenuous para- phrase reposed. I know that occult meanings are often to be found in Eastern languages; but it is absolutely necessary, if the Court is expected to appreciate them, that they should be expounded by some one very learned in both languages. In order, therefore, to arrive at the meaning of this agreement recourse was had to the simpler method of obtaining from the interpreter a translation of each character used in the document. From this I have little doubt that its meaning is very fairly rendered in the certified translation; and I have therefore merely to interpret the following sentence ¿âm
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In construing the agreement I havə omitted to deal with the question of negligance. That was put forward as a separate ground of liability, which I will consider presently. What I have said as to the liability of the shroff for the fraud or mistake of others must of cours, be qualified by this: that it is a fraud or mistake which he himself should not have discovered, in which case his failure to discover it would become a mistake of his own, and he would be liable under the agreement. He is liable for negligence, whether under the agreement, or at common law. I propose, however, to deal with this aspect of the case as it was treated in argument, as a distinct ground of liability.
The second ground put forward in the statement of claim is that the plaintiff is
recover because entitled to
the amount paid by him to the bank was paid for and on account of the defendant, and at his request, such request being implied by law. Mr. Sharp contendel that no request is implied in law where the plaintiff pays money in dis- charge of his own liabilit, which he has not assumed at the instance of the defendant. I agree. This proposition is a variant of the one given in Chitty on Contracts (8th ed. at p. 43) that a voluntary payment of the debt of another, without request, and under no legal liability or compulsion, gives no claim for the money paid against the person whose debt is discharged. I admit that there is a vinculum juris between the Bank and the shroff but the legal lishi- lity, under which the compradore paid the bank was his own liability, and it was not assumed at the request of the shroff. This ground of liability therefore fails.
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The third ground put forward was that the money was due as on an account stated.
On the evening in question the defendant's accounts being short by $31,400, the cheque on which this amount had been paid being missing, the defendant wrote at the plaintiff's request a document which was translated by the plaintiff, as follows, "owe $21,40) în bank notes.” - The defendant contended that the Chinese word
owe translated " meant in reality "short": and as in the case of the agreement, the evidence of Mr. Au Fung Chi was taken. The result seems to be that it may mean either.
The meaning which I must give to it must depend on the intention of the parties at this time it was signed.
The plaintiff says that after the rearohi far the missing cheque as it was late and he had to hand in the money, the defendant agreed to give him a note of indebtedness for the amount. The defendant says that the plaintiff ssked him to