72
noted on it to his own detriment then the proteo- tion of the infant is taken away except on condition that he himself redress the damage the granting him relief would cause.
I have left out the recent case of "Lodge v. National Investment Co.," which except for the intervention of the Money Lenders Act 1900, very much resembles this case in principle, though it was not a case of infancy.
The learned Judge referred to decisions under the old usury laws, and applied the principles of those decisions to the case before him, where the defendants, though money-lenders within the meaning of the Act of 1900, had not registered as the Act required.
The order made briefly was for recovery of the documents on which the money was advanced on payment by the plaintiff to the defendant of the money he had received: the principle is precisely the same as that on which Nelson v. Stooker was decided. He said "I do not think it is either aequam or bonum that the plaintiff, who has had the benefit of the £1075 and who is relying on the illegality of the contract and the exception enabling him to sue notwithstand- ing such illegality, should have relief without being put on terms by which both parties may be restored to the positions they occupied before the transaction commenced."
So much for the law.
The cases as I read them shew that the plain- tiff having falsely represented himself to be of full age cannot get the mortgage set aside with- out putting the person who has been misled into the position he would have been in but for the false representation. But that presupposes clean hands on the part of the defendant. Having come to the conclusion that there is no evidence which would justify me in holding the defendant to have been connected with the rascality which took place, I have to limit this part of the enquiry to what took place immediately prior to the advance of the money, and this requires very nice discrimination because it involves a criticism of the conduct of a solicitor of the Court.
THE HONGKONG WEEKLY PRESS AND usually implies, that it is complete evidence of | title, then a reference to the register is all that is necessary. But it does not mean this, and therefore the production of the title deeds is as necessary in the Colony as it is in a place where there is no registration and I think in this, though the result would have been so completely unforeseeable, the solicitor shou'd have exercised greater caution. On the whole therefore as there was a false representation by Li Leang as to his being of full age, and as there was nothing in his appearance to lead the lender to suppose he was not of full age, I think the utmost I can do is to make an order for the delivery up by the defendant of the mortgage upon payment to her by the plaintiff of the sum of $10,000: and in default of the plaintiff making this payment the aotion will be dismissed. I do not think viewing the whole circumstances cou- nected with the mortgage that I am justified in depriving the defendant of her costs. But as to the subsequent proceedings by Lui King Chi, I must hold the defendant, his wife, to be affected by them, and I order her to pay all the costs incidental to the proceedings consequent on the change of solicitors and restoration of the former solicitors to their original position on the file.
I have tried to make out what section 5 of 1856, The Usury Laws, means, but cannot do so. The plaintiff cannot get off without any interest, and the Court cannot encourage by enforcing an asurious rate. The plaintiff therefore to pay 8 per cent. interest up to judgment and the usual rate to run on the judgment. Six months for redemption.
LI LEUNG v. LI KI MAN.
[August 5, 1907,
else is shut out. But in this case it was under- stood that the whole evidence was not to be re- peated in the second action. Without stretching that I am jus ified in finding as a fact that Li this understanding unduly I am of opinion Leung instructed Mr. Otto Kong Sing to con- clude a second mortgage on the same conditions as the first; and that this was an express autho- rity to his solicitor to show to Li Ki Man's solicitor all material documents on the faith of which the first mortgage had been concluded, and that his solicitor did so,
the defendant was wholly wise in what he did: I am not prepared to say that the solicitor for
the point of adverse criticism here is that at the time of the conclusion of this mortgage Li Loung's promise to get the deed from Canton had not been fulfilled. Mr. Kong Sing should un- doubtedly have paused before allowing the second mortgage to be concluded; but the remarks I bave made on this subject in my former judg- ment apply here, and, I think, I am right to assume that he informed the defendant's solici- tor of the state of the case, and that he acted at Mr. Kong Sing had already acted. The evi- dence is clear that the money was paid to, and accepted by. Li Leang in full. I do not think there is any evidence to connect Li Ki Man with Lui King Chi's subsequent conduct, to withdraw both actions, which he, in fact, although the pressure exerted on Li Leung wa did. The order must be the same in this as in the previous case,
Monday, 29th July,
IN BANKRUPTCY,
His Lordship read his judgment as follows: In the second case, that against Li Ki Man, BEFORE MR. A. G. WISE (PUISNE JUDGE'. there is very little to be said, as the facts are much simplified, and many of the same consiter- ations apply.
APPLICATION FOR DISCHARGE.
that judgment should be entered agai at the Mr. Goldring-The terms agreed upon are debtor, and that he pay 30 per cent of his future earnings.
His Lordship-If I discharge the man how are you going to get his profits? That is what I pointed out before.
Mr. Goldring-The suggestion is Mr. Harston's, and my client is agreeable to it.
His Lordship-I am not going to make such an order. I will suspend his discharge. Mr. Goldring-It is quite satisfactory to me, bat perhaps your Lordship would like to hear Mr. Harston on the matter.
His Lordship-Mr. Haraton should be hera. If I suspead the order of discharge I can make no order as to earnings. What I wanted you to consider and asked you to consider supposing I grant the order,, what is the good of it to you?
WB8,
The application for the discharge of Shan Li Leung employed Mr. Otto Kong Sing as Cheung again came on for hearing. Mr. bis solicitor to secure a second loan property. He says he did not. Mr. Kong Singappeared for the debtor, Mr. J. Scott Harston on the Goldring (of Messrs. Goldring and Barlow) went into the box and stated that he did. He was (of Messrs. Ewens and Harston) for Messrs. What took place was this. Acting as not cross-eramined, and I see no reason why I Shewan, Tomes and Co., creditors, and Mr. solicitor for both parties his client Li Leung should disbelieve his statement. Much stress O. D. Thomson, for the petitioning creditor. said he was of full age, but that his title deeds was laid on the fact that I admitted evidence were in Canton. Thereupon having examined
His Lordship said he would not grant the to the effect that Li Ki Man had seen his soli-discharge except on certain terms, the memorials at the Land Office he required on citor who reported to him that there were two behalf of his client Tam Man Hing, a declara- documents, one that Li Leung was the son of Li tion from Li Leung as to his age. He then Ti Pao, the other that be was of fall age; that appears to have put the case to the defendant, the solicitor had said that the documents were not advising her, but asking her if she was all right, so he lent the money: aud I was pressed prepared to advance the money on these terms. t> reconsider my decision: which I have not She assented. I should have preferred the the slightest objection to do. solicitor taking more responsibility, and advising whether the defendant had lent the money The question be- ing that it was not safe to advance the money on the faith of representations made by the without seeing the deeds, but I cannot go to the borrower, but which were not made directly to extent of saying that he was wrong in doing him, and the further question being clearly what be did. And I certainly cannot attribute involved in this action whether he acted any ulterior and sinister design to him in get-fraudulently sad in bad faith, it seemed to me ting the declaration from Li Leung. Tie reason why, on the face of it, he should have as I think advised a delay pending the production of the deeds was the great hurry in which this young man was, even though he were of full age, and the possibility of there being an anregistered mortgage on the property, which would have entailed litigation. He took the registration memorials as proving the title of Li Leung and the non-existence of any other encum. brance. But the curious part of the case is that what he would have discovered was deeds of 1888 and 1895 apparently in perfect order, signed before an old practitioner of the Court. But then, had he reflected, as he would have reflected, for a moment, he would have come to one of two conclu sions either that Li Leung was not the actual person who had sigued these deeds, for if they had been duly executed he would have been at least 31, or that there had been personation, the solicitor before whom they were signed having been deceived, and that Li Leung was not the owner of the pro- perty at all. A little more consideration might have led him to the farther conclusion that the personation was so far harmless, that it was con- trived by the other for the benefit of his two infant sons. Whatever the ultimate conclusion to which he might have arrived he would at least have paused, and then it is more than probable that this fraud would not have been com- mitted. But the fact which underlies the whole
to be part of the "ras gestae" to enquire of him what the information was on whicu he acted. On reference to Taylor, although the cause oited in support of it differs in many respects from this, the admission of the evidence seems to fall within the principle given in sec. 576 "If the question to whether a party has acted rrudently, wisely or in good faith the information on which he acted, whether true or false, is original and material evidence." If this evidence were not admissible the defend. aut could not be asked the question which is vital to his defence in the action, but the solicitor must be put in the box to prove what he said to his client, which possibly he might refuse to answer on the ground of professional privilege; and he then might be cross-examined with a view to showing that he should not have given the advice he did, which is hardly germane to the issue, I, in fact disallowed a question put in chief to Mr. Kong Sing whether he gave inpection of documents to the defendant's solicitor, on the ground that it was within the privilege of his client.
On this state of the case plaintiff's counsel contended that there was no evidence of any representation by the plain'iff to the defendant A8 to his age. Take 8 simple case. A borrower authorizes his solicitor to procure him an advance on mortgage of his property and to tell the leader, through his solicitor, that he is of full age: whereas be of this aspect of the case is that the existence is not. If the rules of evidence were as they of a system of land registration in the Colony were contended for, the plaintiff has only to go is deceptive. If it implied what registration' into the box to deny the fact, and everything
Mr. GoldringIt is good for what it is worth. It is an order of the Court and can be brought up again before your Lordship. Mr. Haraton is not here, my Lord.
His Lordship-He ought to be here. What do you want?
Mr. Goldring-I want the man's discharge. His Lordship-I cannot make that order, The order for di-charge is suspended for two
years,
Mr. Goldring-That m ans that the man is discharged from prison.
the other day that if the man was kept in jail His Lordship Yes. I pointed out to you he could not earn anything.
Later, Mr. Harston appeared and asked his Lordship to hear him.
His Lordship-I'll hear you, but I won't alter my decision.
Mr. Harston-As a matter of fact I had to go to a dentist's to have a nerve stopped.
His Lordship-I'm awfully sorry. Mr. Harston-I would like your Lordship to hear me.
His Lordship-How can I? I've ordered the man's release from jail.
Mr. Harston-But with regard to his futare earnings.