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THE HONGKONG DAILY PRESS, FRIDAY, MARCH 14rg, 1994.
THE EXCHANGE CASE
BANK OF EAST ASIA . J. H. N. MODY
MACAO NOTES. SENATOR FOR MACAO.,
[YROM OUR OWN CORRESPONDENT.]
The Senator for Macao, Mr. Francisco Xavier Ausdeto da Silva, is leaving for Lisbon, Portugal, shortly, in order to attend the next session of the Senate. It will be remembered that not long ago
The case in which Mr. J. H. N. Mody. zrekange broker, is sued in the Supreme Court by the Bank of East Asia, for the recovery at 877,434.80, an amount of money for which he stood as guarantor | a new Ministry came into power in Lisbon is an exchange transaction a few weeks and this necessitated a new representa- before the Banque Industrielle de China tive being elected for Macao.
Mr. F. X. A. da Silva represented failed, was continued yesterday morning Macno in the recent Senate and he has before the Chief Justica (Sir William been returned opposed on this occasion.
The Leal Senado of the Camara of Rear Davies).
Macao, in recognition of services render. Mr. Eldoa Potter, K., and Mr. F. Ced by Mr. Silva when he sat for Macao. Jenkin, instructed by Mr. E. Davidson (of Messrs. Hastings, Deanys and Bow ley), are Counsel for the plaintif Bank, and Mr. C. G. Alabaster, H.C., and Mr. Campbell Prosser, instructed by Messrs. Wilkinson and Grist, appear for the de- fendant.
is giving a banquet at the Macao Club, on Saturday 13th inst., in Mr. Silva's honour. Covers will be laid for upwards of one hundred and sixty guests, includ ing His Excellency the Governor with his wife and daughter, Judge A. Correa Mendes, Judge Dr. Pato, the Attorney- Continuing his arguments, Mr. Prosser, General. Mr. Saica Netto, Commander aid the parties (ie, the banks) deli-} Magalhaca Cerres, Harbour Master, the berately came together and made an Commandants of all the Military and arrangement whereby payment was pot Naval units, representatives of the to be made until a certain definite event Clergy, all the infidential Portuguese, and had bappered until advice had been reather Europeans and Chinese residenta ceived from Paris. He submitted that the very fact of making that arrange- ment was not birding in law.
The Chief Justice: So far as we know, the matters (the original contract and the alleged variation) may have been contemporaneous.
Mr. Prosser: Even if that was so, is is sufficient for our case.
The Chief Justice: The distinction you are attempting to make, Mr. Prosser, is so subtle that I must confess I have some difficulty in following it
of Macao. A number of guests from Hongkong will also attend, including the Portuguese Consul and Vice-Consil. The banquet is being, given' as a token of appreciation and as a mark of esteer to wish Mr. Silva bon voynge, good health and to convey to Macao's representative the acknowledgment of his constituents" faith in his ability and conscientiousness to further the interests and welfare of the people of Macao. The Macao-born residents of the Colony know that Mr. Silva realizes that their interests are safe in his keeping.
On Monday, 17th inst. His Excellency the Governor will entertain the Senator to dinner at Government House, to wish Mr. Silva the best of good fortune. It is hoped that the Senator may stay long enough in Lisbon to ecmplete at least the principal portions of his programme.
It is understood that amongst the measures Mr. Silva will agitate for are ;-- Extensive furlough to Portugal for locally appointed Government employés at the cost of the country,
Mr. Prosser: I will try to put my arguments simply. The original contract was to pay on 8th June. We have evi- dence of that. We therefore say that the money should have been paid then. or the matter treated as a default. That was the original contract. What exactly happened afterwards we do not really know. But we do know that whereas the Joint Bank demanda payment the Banque Industrielle says they were await ing instructions from Faris before paying The liabilities in the original contract were fixed. But we have more than Mr. Silva is the first Senator of Macao what Mr." Potter calls passive in-parentage to sit in the Senate of Portugal nctivity" we have the parties coming- On March 20th, the Portuguese com- together and making an arrangement munity in Hongkong will entertain Mr. whereby to-morrow (ie., payment on Silva at the Hongkong Hotel and present demand) is gone. In other words, the him with souvenir. On the 2nd inst., terms of the original contract are gone, Mr. Silyn, with 'bis wife and three child- and not only gone, but varied, whether ren, will leave Hongkong for Portugal the arrangement regarding confirmation per 6.s. Valdera. was a binding one or not.
The Chief Justice here put a supposi tious case in which the one bark agrees to wait for payment upon the other bank agreeing to pay interest on the amount outstanding.
Mr. Prosser: That would be a bind ing agreement.
The Chief Justice: And would, ac cording to your arguments, release the
surety?
Mfr. Prosser: Yes, my Lord. The essence of a contract of this kind is time. The very name of it-telegraphic transfer "-implies so. If it was not re- quired for the money to be paid on de- mand (" to-morrow -there were other ways in which the transaction would be negotiated. The essence, I say, was time.' in other words, speed.
morrow
Mr. Francisco Xavier Anadeto da Silva was born in lacno on August 10th, 1883, and was educated in Macao at the Lyceum. At the age of twenty-one he passed his examination in Chinese and was appointed interpreter, which position he held for seven years. He then passed his final examination as a lawyer and has beca in practice ever since. Mr.. Silva acted as Attorney-General on two occa sions, functioned as Commissioner of Police once, and was president of the Municipal Council for ten years. In 1811 he was appointed a member of both the Legislative and Executive Councils and remained in these positions till he was elected Senator for Macne.
in this case meant the sС. E. WARREN CO..
June, and the making of an arrangement whereby one party has to wait for con firmation to come from Paris is a dis- tinct and complete variation of the original contract,
Mr. Mody, Counsel continued: would
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never have entered into this contract as TE No. 189. HONGKONG. guarantor if he had any indication that the money was not going to be paid the next day, or if he had known that anything like a variation of the contract was copterapiated or take place. Plaintiffs (continued Mr. Prosser), Lad been guilty of gross negligence in not giving his client notice.
to
As Mr. Prosser was dealing with his third point of defence (the question of whether notice to the guarantor was re". quired) Mr. Potter entered a formal pro- test. He alleged that Mr. Prosser was raising a point-in particular regard to mercantile custom-which has not been previously raised..
Mr. Prosser contended that he was in order, and referred his Lordship to Mr. Alabaster's opening for the defence. His Lordship instructed Mr. Prosser to proceed with his reply.
A little later the plaintiff's Counsel raised another objection. If, said Mr. Potter, the case was that it was an im plied term that they should have given the defendant notice, it should have been pleaded, and the prosecution would then have pleaded that it was not an implied term, and would have brought evidence to support their contention.
After another formal protest" on the of the plaintiffs' Counsel, Mr. part Prosser himself lodged a formal protest against "the continual objections being raised by the other side."?"
CL
Mr. Potter thereupon appealed to his Lordship to say that there was nothing frivolous in his (Mr. Potter's) objections. After hearng further arguments for the defence, the Chief Justice adjourned. the case, until, to-day,
HONGKONG SHARE MARKET OLOBING QUOTATIONS
March 13th, 1924.0 Hongkong, and Shanghai
Banks
..................$1,145 b. Union
$248 b. R.K., C. & M. Steambosta 843) ». "Star Ferries. 31. b. China
Insurances
Sugar Kowloon Wharves........... Dacks
Lands
Ewo Cottons
Comenta
Hongkong Ropes
Watsonn
b.
• 18 Ꮒ
13
11. 12.
$64 b $29 B Hongkong Electrica.......$35 b Hongkong Trams », muna128 b.
B—buyers; «—deliers; 10.—-sales
"
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GENERAL REPAIRS PROMPTLY ATTENDID 10:
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