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December 23, 1907.]
it is any use, but if it is any use, I strongly re- commend some influential body of Chinese merchants to meet together and see if they cannot possibly abandon these tong names- either to abandon it themselves (the use of it) or to abandon dealing with partners, firms, in which tong names are used. A great number of issues come before the Court and the Court Counsel and everybody engaged are busily en deavouring to unravel what the parties know perfectly well is the truth. I may be absolutely wrong in the conclusions I have come to but all I can say is that it is the parties' own fault | for using tong names and dealing with firms who use them and not taking sufficient precautions to see that the actual partners are really known. Now, as to Yim Quon: There is a curious slip in the procedure with regard to this issue that is in the form of the partnership issu, it is directed to inquire whether two different people are partners in the firm. They are really two distinct issues and should not have been combined in one. The evidence in one is not evidence in the other. The two persons alleged to be partners stand on an entirely different footing. They are not co-defendants at all but unfortunately they were so treated and, if admitted, an exceedingly ingenions argument into the month of the plaintiff's Counsel. With regard to Yim Quon S I indicated when Sir Henry Berkeley moved for anonsuit that I had ve: y grave doub's as to whether there really was a case against him and I still have doubts, because the prim facie evidence against hil ip sccordance with the rule I will indicate presently is practically the fact of his having had dinner in the guest room aud that is consistent with the respect that might be shown to a landlord visit ing his premises as this being a partner. But I assume there is just enough evidence to satisfy the rule which shall refer to presently in order that Pun Sik Chi's evidence may be admitted as a statement made with regard to him and by his authority. But this confirms. tory evidence is the evidence of one man only and on the other side there is a double denial, a denial by Yim Qnon and also a denial by Chan Man Chi of the fact that he introduced him as a partner and I think it wil be too dangerous on such slender evidence to find that he was a partner. But then it was said suppos- ing I were to find that Chan Mau Chi wa a partner that would show Puu Sik Chi's evidence to be trustworthy in that respect and so trustworthy in Yim Quon's issue aud also that Chan Mau Chi's is unreliable. The
CHINA OVERLAND TRADE REPORT
two defendants are not joint defendants and I must treat Yim Quon as entirely distinct from Chan Man Cui. The evidence of the one could not be brought to support the case against Yı Quon. No jury would find on that evidence aud as far as the issue against Yim Quon is concerned he must have judgment. And now as to Chan Mau Chi: The first objection was taken to the reception of the evid-uce of Pau S.k Chi. I think on consideration it was pro- perly taken but my ruling must only be com sidered to apply to a trial before a judge, because he on do what a jury is supposed to, or very likely cannot do, omit from consideration evidence which has in fact been given. I do not see any harm in ad. mitting the evidence as I did admit it, b. cause the learned counsel opened with the fact that prima face evidence would be given as to the partnership and that confirmatory vidence by persons in the positions of Puu Sik- Chi could be admitted. I think it is a mistake to say that the current of authorities requires & partnership to be proved up to the hill before such confirmatory evidence Can be admil. ted. It is sufficient to show 8 sufficient prima facie case that a reasonable man might come to the conclusion that there might have been a partnership and that these state. ments as being on the authority of che alleged partner should come in to confirm the prima facie case. With regard to the admission of the letters I confess on consideration that I am doubt. ful erhether they should have been admitted, and if it were necessary for me to reply on them in the decision I am going to give, I think I should have asked that that point be further argued, Now. the case put forward is that some witnesses say that Chan Mau Chỉ took part in the management or consultations with regard to the management of the business; that at the
firm's opening festival dinner be sat in one of the seats of the hosts. This is a quite sufficient prima facie case of the partnership and then it is reinforced by Pan Sik Chi's statements which we may now take to have been made on anthority. The partnership was denied but the defendant undertook to show who Chan Pai Sin tong-the tong name in the partnership book-really is. I think some capital was made out of this quite legitimately, but I doubt very much whether, the circum- stances being as we know, could have been avoided. In fact, the documents pal in showed that that WAS the C188 from the very baginning. These books profess to show that Chan Pui Sia tong was Chan Chun Chiu (deceased), and that Chan Mau Chi acted for his widow and that all he did, or is alleged to have done, if he did anything at all, was done on behalf of the widow. Now here is a point of some interesi. Chan Man Chi puts forward a case which depends on a fraud of the revenue laws, not committed by him, but connived at and assisted by him. The proper course to substantiate a case of that course would b⋅ to put in the probate taken out by the widow but she did not take ont auy and I am not quite sure whether the case does not break down here, bat
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plaintiff's case which I must accept. I cannot call it a very strong one and I cannot omit to refer to the fact that Pan Sik Chỉ does not seem to have behaved very honourably to the firm, whose credit has been attacked on this ground. I may add, that if I had based my decision on the documents and letters, assuming them to have been properly received in evidence, I would have given judgment against Chan Mau Chi who juggled with his case and said be acted and spoke as these letters say he did, but in the capacity as representative of the widow. If I am wrong he has only got himself to blame,
to
Therefore judgment will be on the issue with regard to Yim Quon, for Yim Quon, and in the issue with regard Chan Man Chi for the plaintiff. The Registrar will have no difficulty in discriminating between
the onsls.
IN BANKRUPTCY,
BEFORE SIR FRANCIS Piggott (CHIEF JUSTICE).
APPLICATION TO RESCIND,
Re the Cheong Wing Bank.
Mr. G. Grist (of Messrs Wilkinson and Grist) said he appeared in support of an applica- tion to rescind the receiving order made in this bankrupcy. All the creditors were satisfied with to excoption of those for whom Mr. Master appeared.
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Mr. Mastor said there was a claim by a man from Singapore. He was to obtain counsel's advice that day on the matter.
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liis Lordship-Then it would be better to fix an early date for the bearing.
Mr. Master-I will have to get my client from Singapore.
The matter was adjourned.
A SOLVENT DEBTOR.
The Official Receiver said he had written to all the creditors. Most of them had answered and said they had no objection.
His Lordship-Have all had notice? Mr. Kemp-Yes, my Lord, Ifis Lordship-Have you any objection? Mr. Kemp - No, my Lord.
His Lordship (to Mr. Stephen) —What do you propose to pay ?
have no authority at hand to justify my opinion, so I will not press it. But two things I am certain of: If I give judgment for Chan Mau Chi a fins would be inflicted on someone for removing papers from the jurisdiction without taklug out probate and secondly i raises a suspicion against the bona files of the cise.
I cannot accept the view that this is often done by Chinese as AN EICHS . The Courts are bound to support the reveune laws of the Colony and I should be doing wrong in according to a do umeut removed in can'raven. tion of the ravenne laws the same weight as I should attach to a docum ut free of su-picion Then fiere is another way of looking at it.
Re J.mes Campbell Logan. The law provides a means of justifying the title Mr. M. J. D. Stephens applied for the to the property of a deceased in the person aunulling of this bankruptcy order. The justly entitled to it. It awards a public docu- petition was filed with reference to an action ment which in itself is a doenment of fille aud | brought by a man named Watkins. This action if a person does not choose to adopt the curse had been settled satisfactorily to Mr. Watkins, the law provules they must take the conséquences | and consequently there was no further reason and one of the consequences in this case would for proceeding with the bankruptcy. The undoubtedly have been that if I foned Chantakrupt was solvent, and the creditors who Mau Chi a partner he would have to boar al had proved their debts were satisfied to sanul the costs of the case, because the suit was stariol h order. entirely through his own neglect or the person for whom he was acting in not taking out probate and so justifying his title, if that title is true. If there had been probate as the law requires then the plaintiffs, having a public decument to which they could refer, would not have made their allegations of partnership, and therefore, as I say, supposing Chan Mau Chi was held to be a partner he would undoubtedly have to pay a large proportion, if not all the costs of the issue. This is not all: Auother suspicious circumstance is that the books on which much reliance was placed to show who Chần Pai Sin tong really was, are produced from the keeping. of the widow which is in fraud of the baukropicy laws and this adds a further suspici »n to 2 ca.a which from its very inception has been suspicions. If I had any doubt left about the unsonad vess of the defendant's cisa it is Bet at rest by another curions cousid-ration one of those which unfortunately escaped me at the trial. Chau Pai Siu Tong's copy of the partnership agreement had written on it in large imposing characters the alleged res! partner's name. That is to sag, ou a book which was the private property of a partner and which was not intended to be seen by other partners at all, which was to remain in his own keeping, had written on it in startling charac ters the name, which it is the admitted object of the ass of the long name to conceal; and it was written at the same time as the scribs of the firm was writing the tong name so carefully and beautifully. I do not believe this is possible and I do not believe any jury would believe so either. These three points lead me to a very clear opinion that the cise set up by Chan Mau Chi as to who really is the owner of the tong name has broken down and it is unnecessary for me to go into the many minor points which confused this issue and made it exceedingly difioult to unravel Therefore by the failure of the defendants to prove what they set out to prove sets up the
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Mr. Stephens-We propose to pay in full. We are solvent. The reason the bankruptoy palition was filed was that one of the creditors
Watkins-commenced an action for a large sum of money, and if he had succeeded in that action he would have left the other creditors out in the cold. So the debtor filed his petition in bankruptcy in the meantime. He showed the Official Receiver he really was not bankrupt and why he took that stop.
His Lordship-The simplest thing is to allow the bankrupt to go on paying his bills.
Mr. Komp-Tos baukrupt's father paid the amount of a promissory note to Watkins Nothing can be paid out of the etsate by me exc pt in the nature of a dividoud.
His Lordship-I cannot annul the bankruptcy until the creditors are paid. How much assete bave you?
Mr. Kemp-We have a launch, and there are over 31,000 in hand.
His Lordship-What about the debts ? Mr. Kamp-A large debt is due to the bank. rupt's father, and there is a debt to his mother. His Lordship-I must have a report from the Official Receiver that he is satisfied.
Th matter was accordingly adjourned, pending a report from Mr. Kemp.
ADVANTAGEOUS TO CREDI ́ORS.
Re the Ki Cheong Firm, application for approval of a scheme of arrangement.
Mr. F. B. L. Bowley said he had, as directed by the Court. given notice to the dissentient creditors, and to those who did not vote for the scheme. There had been no appearance in reply.