May 24, 1909.]
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CHINA OVERLAND TRADE REPORT.
or about December 24, and again on December | to one of themselves. Without going more, 29, and possibly on one day subsequently deeply into the matter there was no evidence, to that date, plaintiffs' manager went to and he did not see his way to assume that U Po the premises of the bank and saw Mr. Chi himself ever presented the draft or received Clark, the cashier. with whom he had the money for it. It appeared that the bank some conversation on the subject of the draft. simply paid on the endorsement and they had He told Mr. Clark that a draft for $849 no means of knowing, and did not allege that in favour of the Man Lee Chan firm had been they paid to any particular person. It was true lost or stolen, and he asked that the bank should that most of the cases where payees had recovered stop payment. On January 5 Mr. Otto Kong in an action for conversion of a bill fell Sing wrote on the plaintiffs' behalf a letter to under the statutory provisions relating to the defendants stating that a draft for $840, in crossed cheques, but he did not think that plaintiffs' favour, had been stolen from their section 82 of the Bills of Exchange Act premises, and giving the defendants formal introduced any now right in the owner of the notice not to pay until notice of presentation instrument or any new liability in the banker. had been given to the plaintiffs. The bank It merely gave bankers dealing with crossed acknowledged the letter, and stated that with cheques a statutory protection against their ont further particulars the draft could not be common law liability. After quoting numerons traced, and that payment could not be stopped authorities he said he did not think it made without advice from the person to whom the any difference that the bill was drawn abroad, draft was issued, coming through the issuing for the statutory protection was not in this bank. Nothing further came from the plain-Colony confined to inland bills. There was no tiffs and on January 6 the draft was pre- doubt that the payment was made in the sented to, and paid by, the bauk, on a Chinese ordinary course of business. The endorsement endorsement which read: Man Lee Chan was, he supposed, either forged or made without Shing Ki.
There was a direct conflict of authority. Did it purport to be that of the evidence as to what passed, at the interview
payee? between the plaintiffs' manager and
Mr. Clark. His Lordship did not believe that any mention Was made of the place of issue. At the same time it appeared that the plaintiffs knew or suspected that the place of issue might have been Vancouver, for they sent a cable on December 29 to their correspondent in that City, presumably to stop the draft. Very possibly the plaintiffs did not realize the importance to the bank of information as to place of issue, for even at a much later date, that is, in the letter sent through the plaintiffs solicitor on January 5, giving formal notice to the defendants not to pay the bill, there was no mention of Vancouver. He could not help thinking that it would have been easy for the compradore's department to make a note of the amount of the draft and the payees' names. It would then have been possible for them to have withheld payment temporarily until they had made some enquiries and notified the plaintiffs. His Lordship did not attach | any degree of blame to Mr. Clark, who he was satisfied, could not with the informa- tion at his disposal trace the bill. His Lordship had no diffienlty whatever in coming to the conclusion that the draft was paid in absolute good faith, and that it was not present to the mind of anyone concerned in the payment, that they had received previous notice of any irregularity. The Bank were, of course, quite justified in requiring notice to stop to come from the drawer of the bill. No indem nity had been offered them, and they would have acted at their own risk had they refused to honour the draft on a mere notice from the plaintiffs. It was clear also that if proper cable had been sent to Vau- on December 29th there was ample time under ordinary circumstances, and with reasonable diligence on the part of the plaintiffs correspondent, for the issuing bank to have stopped payment by cable before January 6th.
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As to the law of the case: the action was brought to recover from the bank the value of the draft, either as money received to the use of the plaintiffs, or as for a conversion. The defendants not being acceptors of the draft could not prima facie be liable on the instrument, and it was impossible to agree in the face of the authorities to the contrary, that the drawing of an instrument in this form could operate as an assignant of money in favour of the payees. He could not see how a payment which was clearly referable to a contract, expressed or implied, with the Bank of Hamilton, could be relied on as establishing contractual relations between the defendants and the payees. He was quite clear that the draft was nothing more than a request to pay a certain sum, and that nothing more could be read into it. If, then, the defendants were not liable in contract, was there a right of action against them in fort for conversion? It was objected for the defence that as it appeared from the evidence that the draft was stolen by U Po Chi, a partner in the plaintiff firm, and it being a necessary inference that that man cashed the bill, and the receipt of a partner being the receipt of the firm, the plaintiffs could not recover money which had been already paid
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books he came to the conclusion that defendant was a member, because he found the original entrance fee entered on November 1906, and payment therefor. In addition to that he saw in the register of the Club for the twelve months, which was kept by Messrs. Lowe and Bingham, subscriptions charged up to defen- dant together with chits which had been paid from time to time.
What subscription did the defendant pay P. A dollar a month.
The subscription provided for by the articles is $3; do you happen to know why he paid 817-It appears that in the early stages of the Club it was agreed that seagoing members should pay only a dollar a month.
Mr. Barlow asked permission to put in a copy of the Club rules, but Mr. Harris objected, remarking that his Lordship could not accept secondary evidence when the first was obtainable.
His Lordship-That is not a cast-iron rulo.
Witness, continuing, said there was a clause in the rules which provided for visitors, but visitors could not use the Club for more than one year. The 81subscription was payable whe- After reviewing the evidence, his Lordship ther a member was in the Colony or not. Witness said the draft was payable to Man Lee Chan received two letters from defendant in the and Co. in English, and had the endorsement | course of his applications for payment. In the been in English in the terms of the instrument | first, defendant, enclosed $2.45 due, but protested there could clearly have been no difficulty. The against the claim of $25, stating that he was not hank would not have been liable. It appeared on the same footing as the rest of the members to be a custom well known in the Colony for the as he had paid no entrance fee and had no voice signature of a Chinese firm, whether on a in the management. He looked upon himself receipt or otherwise to be made by the impres- | as an associate of the Club. sion of a stamp or chop, usually in Chinese Did you find among the papers of the Club characters. It was not easy to fit terms this proposal form (produced) ?—Yes. of English law 10 Eastern commercial The form in question contained the names of practice, hut. he must not forget that the proposer and seconder of a new member, the bill
was presented for payment if and also stated that the proposition was sup- not by. at any rate under the auspices | ported by the following members," defendant's of, a partner in the plaintiff firm. It appear-signature being included in the list. ed clearly from the evidence of their manager His Lordship asked that the second letter that the draft was stolen by U Yuk Wo, the | should be read. absconding partner. That man must have been familiar with the business of the firm and the chops in use, and there was no reason why he or his confederate or transferee, whose object was merely to get the money, should have put on the instrument a suspicious chop which did not purport to be that of the firm when it was just as easy to employ one on which the bank would he expected to make paynient without difficulty. He therefore gare judgment for defendants with costs.
On the application of Mr. Pollock his Lordship granted leave for formal judgment to bo drawn up, and for Conusel to be certified for.
A ST. GEONGE'S CLUB CLAIM.
E. A. M. Williams, liquidator of St. George's Club, proceeded against E. A. Greenwood, chief steward of the s,s. Empress of India, to recover $25, being the amount due under article 5 of the memorandum of association of the Club, in which it was stipulated that each member under-
took to contribute not less than $25 towards the assets of the Club in the event of the same winding up.
Mr. F. C. Barlow (of Messrs. Goldring, Barlow and Morrell) appeared for the plaintiff, and Mr. Reader Harris (of Messrs. Wilkinson and Grist) for the defendant.
Mr. Barlow, in opening said St George's Club was a limited company in this Colony.
His Lordship-Limited by guarantee? Mr.arlow -Yes. The speaker then read article 5, and stated that he proposed to prore that on December 23rd last the defendant was a member of the Club, and was a member until it went into liquidation.
His Lordship--Is that denied? Mr. Harris--Yes.
Plaintiff was called, and deposed to being the managing clerk of the firm of Messrs. Lowe, Bingham and Matthews. On December 23rd of last year he was appointed liquidator of St. George's Club. He had searched among the papers of the Club for the proposal form of the defendant, but had been unable to find it. All the proposal forms issued were not handed over to witness, and it was only by chance that he came across a few. Most of them had probably been destroyed.
His Lordship-What was the membership of the Club at the time?
Witness About 130. Proceeding, Mr. Williams stated that on going through the
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Defendant informed Mr. Williams therein that if the correspondence did not at once cease regarding his (defendant's) liability to the lato St. George's Club,he would immediately put the matter into the hands of the police, along with the correspondence and the solicitor's letter. This was an illegal action, and he (the defendant) was quite equal to the little game of bluff.
In cross-examination plaintiff said he was one of the first members of committee of St. George's Club, but he did not remember defen- dunt s name going up for election It may have been put up while he was in Shanghai. Witness could not say whether he was notified of defendant's election. A copy of the rules and articles should have been sent by the Secretary to Mr. Greenwood, who should also have received the balance sheet on December 31st, 1907. It would be sent to all members on that date.
What address would it be sent to P-
-The C. P. R. office.
Is it not usual in a register of members to have the addresses against the names? I suppose the name was so well known by the secretary that he did not bother.
But there were no addresses against any of the names; do you think he knew them all? Yes, the members were fairly well known to each other.
Do you happen to know whether the committee considered these sea-going people as members or subscribers?-I happened to be a member when the question was discussed; they were certainly looked upon as members.
Did you ever hear of the defendant objecting to become a member?-Never.
Is it not a fact that what really happened was that the defendant and some others refused to' become members and were told they could use the Club premises for a dollar a month ?- Certainly not.
Do you remember ever seeing Mr. Greenwood attend a meeting ?—No.
You were not on the committee when he was elected?-I resigned in December 1906. That was before the entry in the books.
For the defence Mr. Harris denied that the defendant ever became a member of the Club. r. Greenwood knew a great many members, and was pressed to join, but did not do so. Then he was told by the committee that if he paid a dollar a month he could use tas Club premises, in exactly the same way
as olub