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THE HONGKONG WEEKLY PRESS AND
Mr. Slade, in opening, stated that Cheung Shi was one of the wires of a man named Li Tio-pan alias Li Choi, who was dead.
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[ March 4, 1907.
Mr. Pollock-We are statisking the
hate.
His Lordship-I should like authority. Mr. Pollock quo‘el various cavaq nnd sail this was pur-ly and solely a quistion as to whether Li Fak died on a osrtain date.
It was not a question of probate at all.
His Lordship-Here you are virtually attack- ing the probat».
Mr. Pollock-We are not attacking the probate.
plend what I may call " newspaper defences'
or at all. It was not trus that the plaintiff was Mr. Pollook-Obviously it woull nɔt be any and that so far as the plea of justification is appointed execatrix of uis will, or that probate | de'euce for him to my that he hal probate concerned, it bad been put forward at the of the said will had' at any time been granted | granted by the registrar on ex parte affi lavits, instigation of the actual writers of the libel. But
10 plaintiff. Further the defondant said that His Lordship-Bat if the law provides it now transpires that the newspaper takes the men whom he bona fid's believed to bg Li procedure for attacking probat.— fall responsibility for the publication of the Fak, the owner of the property, executed on libel; that it is run for the purpose of advocate: March 28th, 1906, an indenture of mortgage of ing a political doctrine that the lib 1 was de. the said property to the d-fendant in considera. liberate, and that the justification is intended to tion of a sum of $10,001 which was lent and paid be pushed home to the utmost : "The plaintiff over by the defendant on March 29th.. This is a acoundrel and we hope to prove him in be a mortgage, which defendant claimed to be valid soon drel." From which I have not the slight-aid subsisting, was duly registered in the Laud
at de ubt that all or some of the shareholders, Office. who in fact edit the newspaper, are themselves the actual libellers, Another thing is perfect | ly apparent that the fnds for the defence, without which it was frankly admitted the defruce ould not be conducted either by solicit. org or conusel, will be provided by the parties who wrote the libel, Therefore I arrive at this result, The libel ers will find the funds for defending the action, but in the case of the de- feudant failing the plaintiff, save for the secu- rity which he has, will find himself blocked by the liquidation In o her words the libellers | desire to make use of the liquidator as a screen to save themselves from the consequence of their libel; in the event of judgmeut going against them and more, they desire in this way to make 080 of the procedure of the tourt for the advancement of their political aims. Such
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course it is imposible for me to sauction; und the order I make is that the liquidator do not continue the d fence in so far as concerns the plea of justification, unless and until he has A sum deposited in his bands sufficient, to the satisfaction of the Registrar, to cover all costs of both sides. I am strongly of opinion that where a special jury is in the opiniou of the Court rential to the trial of the plea of justi. fiction, it is the defendant's jury, and that the necessary deposit should be made by him. But in the absence of authority I do uot propose to insist on this, and therefore if the trial should come on, it may be bef re a common jury. It was pressed on me that I ought not to sympathise with the plaintiff, but rather the r-verse, because on the evidence before him, the liquidator, or rather bis legal advisers, think the case of justification overwhelming. But I have no sympathy with either side; the law is that the falsehood of all defamatory words is presumed in the plaintiff's favour (Odgers on Libel, p. 173), and that is all I have to consider at the present moment, What the result of these directions to the liquidat r may be to either party, it is not for me to say. The liquidator's | costs of this motion, which think is a priper one, may le pid out of the funds in his bands.
CHEUNG SHI ". MA FU-BAM,
Cheung Shi, otherwise 11 Cuenng-shi, proceeded against M u-sam to have al indenture of morig ge alleged to have been made by the defendant on sec ion B of ariue Lot 163 declared null and void.
Mr. M. W. Slade, instructed by Mr. I. V. Sleavenson (of Messre. Deacon, Looker sod Deacon) appeared for the plaintiff the defendant being r presauted by Sir Henry Berkeley, K.C.. and Hon. Mr. H. E. Pollock, K.C., who were instructed by Mr. . F. Dizon (of Mr. John Hasting's offic-)
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Sir Henry Berkeley--A concubine Mr. Slade-I don't know whether my learned friend is well up in the Chinese marriage laws or not.
Sir Henry Barkeley – She is third canoubine. Mr. Slade-At any rate, whatever she was, she had that relationship to Li Tin-un who, while he was alive, was a partner in the 'ung Shing Wah oil shop at 207 Des Vosur Road. This na diel in 1903 aud Li Fok was the eldest son of the plaintiff by him. In 1889 Li Choi, the father of Li Fuk and another sou called Li Ling, assigned to them as tenan's in common the remaining portion of Marine Lot | No. 163 on which were houses Nos. 111 and 113 Wing Lok Street. The two BOUX We ra small children at that time. In 1905 these two boys purport to have executed cross assignments to each other whereby Li Ling assigned his moiety in house No. 1 1 to his brother Li Fak, and Li Fuk gave up the whole of his interest in the other house so that -ach had a house to
himself. What the effect of that assignment was it was a little difficult to see because the brothers were children at the time,il was made,
The case was adjourned.
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Tuesday, February 26th.
IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE),
CHEUNG SHI # MA FU-SAM.
The case was continued in which Chenng Shi, otherwise Li Cheung-hi, proceeded against Ma Fu-sam to have an indenture of mortgag· alleged to have been made by the defendant on section B of Marine Lot 163 declared null and void.
Mr. M. W. Slade, instructed by Mr. D. V Seavenson (f Messrs. Dmcos, Looker and Deacon) appeared for the plaintiff. the defendaut being representel he Sir Henry Berkeley, K.C.. and Hoo. Mr. H. E. Pollock, K.C., who were instructed by M». ^. F. Dixon (of Mr. John Hasting's officu).
The case for the plaintiff having oncluded, his Lordship remarked that the granting of probate would appear to be sufficient evidence of the death of Li Fuk, but Mr. Pollock can'ended that this was not so,
His Lird-hip->upposing you p'ta man in The statement of claim set out that ne Lithe box who s‹id this was Li Fuk, and suppo ing Fuk ceceased, died in (auton on November 12th, a dozen witnesses identifi-d him, I could not 19), leaving property in Hongkong includin‹ upset the probite. a leasehold property kuown an registered as section B of Marie Lot N. 163; and, having by his will appointed the plaintiff executrix - n April 27th, 19 6, probate was grauted to the plaintiff. On March 18th some person, t the plaintiff unknown, impersonating Li Fuk deceased, execu ed an indenture of mortgage
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the skid leasehold proper y for 810, 00, and оп March :9th the said mortgage was registered at the Land Office. The plaintiff therefore claimed a declaration that the said mortgage was null and void; delivery up of the said indature to be cancelled; an order that the registration of the mortgage in the Land Office be expunged; and such further or other relief as the Court thought t
The statement of defence set forth that Li Fuk was, and, so far as the d-fendant knew, is still, subject to a mortgage, the owner of certain leasehold property in Hongkong known and registered as section B of Marine Lot 163, 1 he defendant further denied that Li Fuk died on November 12th, 1901, or on any other date,
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Mr. Pollock-But your Lordship o a d cer. taiuly say, as judge of this Court, whether or not in this action you are satisfied that a certain link in the chain-the death of Li Fuk – bas been proved.
Hi Lordship-Let us ree what the conwe- yance would be. Supposing you got judgment the net result would be that probate was wrongly granted.
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His Lordship -I should think if you do not attack the proate, it will stand.
Mr. P lock-I don't see how your Lordship can possibly deoline jurisdiction to inquire into the question of the man's death simply because probate has been granted,
His Lordship-The plaintiff claims on the probate.
Mr. Pollock-The plaintiff says the man died in 1901. That is the issue; did Li Fak die in 1901 or did he not?
His Lordship-I don't think so. The issue 00 the proceedings is that probate was not granted. You challenge the probate.
Mr. Pullock-We call upon them to prova the claim; we are not the p'aintiff. In the statement of claim they say that Li Fak died at Canton on November 12:b, 1901.
His Lordship-And that probate was grant-- ed. Therefore the ex-cutrix is entitled to have this mortgage set aside.
Mr. Pollock-Ocles your Lordship hold+ that probate is proof of the death, I don't see how you can d cline to go into the question.
His Lor.lship-That is a question of law which arises in the case, and I don't see in any of the 08388 cited that the action was brought by so executrix.
Mr. Pullock - We are not attempting to show that the will is false. The orucial point is, did this man die in 191 ?
His Lordship deferred the points raised for consideration.
Mr. Pollock then asked his Lordship to say whether the plaintiff was entitled, on the svid. ence she gave, to have the mortgage set aside. The extraordinary thing in connection with her evidence was that she was very pat and very clear on all the points his learned friend asked her--she was perfect. But she could not explain how it was she first cum to bear of these alleged dealings with the property. That was a point which should weigh very havily with the Court. If she was to be silwed relief it should be reasonably shown that she had no suspicion of what was going to tak place. ounsel asked his Lordship to contrast the celerity with which she found out about the dealings with the property, with the extraordinary delay in registering the will, a delay which simply and solely enabled this fraud to be committed. The pro- risions of the local ordinance for the registration of wills and deeds were then referred to, and Mr. Pollock pointed out that in the case of the will of a person dying out of the Colony, twelve mouths
was the Lima allowed for registration.
After aridauga for the defenc; had been called, judgment was reserved.
Wednesday, February 27th.
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IN ORIGINAL JURISDICTION,
BEFORE SIR FRANCIS Progott (ChirY JUSTICE).
CHED G SHI r, MA FU-SAM The case again cam, bofore the Court in which Cheung Shi, otherwise Lí Cheang-shi, proceeded against Ma Fa-sim to have sa indenture of mortgige alleged to have beu
mide by the defradagt on section B of Marine Lot 163 declared null and void.
Mr. Pollock -That may be, but that would be a matter for wo other Court. Surely it would open for your Lordship to say, assuming you thought so that the death has not beni sufficiently proved. In some criminal cases the question of the date of a man's death would become a very important point. In * grest mauy famous cases there have been mistakes in Mr. M. W. Slade, instructed by Mr. D. V. identity
Stonreusa (uf Musses. Digon, Looker and Deacon) appeare·l for the plaintiff, the defendant being represented by Sir Henry Barkaley, K.C.- and Hon. Mr. H. É. Pollock, K.C, who were instructed by Mr. C. F. Dixon (of Mr. John Hasting's offices).
His Lordship -Take the strongest Casa possible. Supposing the man, whoever he is, has been prosecuted for impersonating Li Fak, and one of the points at issue was the death ́of Li Fuk, what would be the position?
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