of Chenng Kai, who was surety to the extent of $100,000 for the due performance of his duties of one Cheung Koon Sing, the compradore of the plaintiff Bank.
The claim is for $100,000, being part of losses sustained by the said Bank in the ordinary course of their business, for which it is alleged that the appellants as representatives of such surety as aforesaid are liable.
On the hearing of the appeal it was contended generally, amongst other things, that the evidence of the compradore was more worthy of belief than that of Mr. Darby, the accountant of the Bank. But on reading the evidence carefully I am strongly of opinion that where discrepancies occur in the evidence given by these two witnesses the evidence of Mr. Darby is far more worthy of credence. Again, it was contended that the compradore, being a Chinaman, was not properly acquainted with the true meaning and import of the various letters that passed between him and the Bank. I think, however, that this contention cannot be sustained for various reasons. Firstly, Mr. Darby states that he himself explained some of the letters to him. Secondly, the man from his then position and his previous history, as detailed by himself, was bound to have an ordinary business knowledge of English and would not be likely to sign anything he did not understand. Thirdly, the compradore himself admits that he writes English and filled in a Bill of Exchange (Exhibit Z) in English and Chinese; and fourthly, to suppose that the Bank got the compradore to sign these letters without his properly understanding them is practically to impute fraud to the Bank, an imputation which is not raised on the pleadings.
Again, it was contended that the compradore considered himself released from liability with reference to the Kwong Fuk and Wing Tung Yan Banks in consequence of what happened at the interview between Kan Sing Toi and Mr. Darby on March 27th, 1892; this, however, is contrary to the evidence, as it is clear from the compradore's own statements that he collected moneys from the Kwong Fuk and Wing Tung Yan Banks, in both of which Banks Kan Sing Toi was largely interested, after March 27th, 1892, so that his statement that he collected no moneys from those Banks after March 27th, 1892, as he considered the matter settled, is distinctly untrue. In fact, it is clear from Mr. Darby's evidence that the compradore and his surety all along considered themselves liable; indeed, if you are to believe Mr. Darby, the surety (Cheung Kai) on more than one occasion asked him (Mr. Darby) not to press for a settlement in the hopes that there might be some margin in Kan Sing Toi's security. I therefore think that the security taken was additional and not substituted, and I must say that the impression left on my mind is that the whole defence is only an ingenious afterthought.
Haring thus expressed my opinion generally on the question I will now proceed to deal with the points raised more in detail. The first point taken was that the arrangement between Kan Sing Toi and Mr. Darby on March 27th, 1892, was in fact a giving of time, but there is no evidence in support of this view except possibly the postscript to the letter of April 1st, 1892 (Exhibit Ab), written by the compradore to the Bank and any inference of the kind is, I think, contradicted by the letters of May 31st, 1892, and June 3rd, 1892 (Exhibits H1 and H2). It was then contended that the surety was discharged by taking substituted security, i.e., that Kan Sing Toi was substituted on March 27th, 1892, for the compradore so far as the Kwong Fuk and Wing Tung Yan Banks were concerned, but as I have shown before, this is contrary to the evidence, as it is clear that the compradore collected moneys from those Banks after that date.
DRAFT.
Hong Kong
No
[Page 32]
28205/197
MINUTE.
Machaghten 15/11
A. Sir W. Hamilton
Mr. Lucas.
Mr. Graham.
Sir J. Bramston.
Mr. Wingfield.
Earl Selborne.
Mr. Chamberlain.
And 2199/87 entitled "An Ordinance to authorise the appropriation of a Supplementary sum of one hundred and forty-one thousand and twenty-five dollars and seventy cents to defray ..."
[Page 165]
Sir,
November 2
I have the honour to acknowledge the receipt of your Despatch No. 202 of the 28th September last, enclosing for the signification of H.M.'s pleasure a transcript of Ordinance No. 16 of 1897, and to inform you in reply that before dealing with the Ordinance...
I shall await the arrival of Drafts with 22. to Audit No...
of Chenng Kai, who was surety to the xtent of $100,000 for the due performance of his duties of one Cheung Koon Sing, the compiadore of the plaintiff Bauk.
The claim is for $100,000, being partof losses sustained by the said Bank in the ordinary course of their business, for which it is alleged that the appellants as representatives of such surety as aforesaid are liable.
On the hearing of the appeal it was conter d generally, amongst other things, that the evid. euse of the compradore was more worthy of be. lief than that of Mr. Darby, the accountant of the Bank.but on reading the evilence carefully I am strongis of opinion that where discrepancies occur in the evidence given by these two wit- nesses the evidence of Mr. Darby is far inore worthy of credence. Again, it was contended that the compradore, being a Chivamao, was not properly acquainted with the true meaning and naport of the varions letters that passed betwen him and the Bank. I think, however, that this contention cannot be sustained for various reasons. Firstly. Mr. Darby states that he himself explained some of the letters to him. Secondly, the man from his then position nud his previous bistory, as detailed by himself, was bound to have an ordi, ary business know- ledge of English and would not be likely
DRAFT.
Hong Kong
No
to sign anything be did not understand. Thirdly W. Robison
the compradore himself admits that he write English and filled in a Bill of Ex- change (Exhibit Z) in English and Chinese: and fourthly, to suppose that the Bauk got the compradore to sign these letters without his properly understanding thein is practically to impute froud to the Bank. an imputation which is not raised on the pleadings. Again, it was contended that the compradore con- sidered himself released from liability with reference to the Kwong Fuk and Wing Tung Yan Banks in consequence of what happened at the interview between Kan Sing Toi and Mr. Darby on March 27tb, 1892; this, however, is contrary to the evidence, as it is clear from the compradore's own statements that he collected moneys from the Kwong Fuk and Wing Tung Yan Banks, in both of which Banks Kan Sing Toi was largely interested, after March 27th, 1892, so that his statement that he collected no moneys from those Banks after March 27th, 182. as he considered the matter settled, is distinctly untras. In fact, it is clear from Mr. Darby's evidence that the compradore and his surety all along considered themselves fiable; indeed, if you are to believe Mr. Darby, the surety (Cheung Kai) on more than one occasion asked him (Mr. Darby) not to press for a settlement in the hopes that there might be some margin in Kan Sing Toi's security. I therefore think that the security taken was additional and not substituted, and I must say that the impression left on my mind is that the whole defence is only an ingenious afterthought. Haring thas expressed my opinion generally on the question I will now proceed to deal with the points raised mora in detail. The first point taken was that the arrangement between Kanbing Toi and Mr. Darby on March 27th, 1892, was in fnot a giving of time, but there is no evidence in support of this view except possibly the postcript to the letter of April 1st, 1892 (Exhibit Ab). written by the compradore to the Bank and any inference of the kind is, I think, contradicted by the letters of May 31st, 1892, and June 3rd, 1892. (Exhibits Hland H2). It was then contend- ed that the surety was discharged by taking sub- stituted security, ie, that Kan Sing Toi was substituted on March 27th, 1892, for the com. pradore so far as the Kwoug Fuk and Wing Tang Yan Banks were concerned, but as I have shown before, this is contrary to the ovidence, as it is clear that the compradore collected moneys from those Banks after that date. It was not of course argued that the mere taking of addi- tional security would discharge the surety, bat it mag angarut iloś aftan uldītiemnt
ir
Mr.
Gov
32
28205/197
MINUTE.
Machaghten 15/11
A. Sir W. Hamilton
Mr. Lucas.
Mr. Graham.
Sir J. Bramston.
Mr. Wingfield.
Earl Selborne.
Mr. Chamberlain.
And 2199/87
entitled "An Ordinance to authorise the appropriation of a
Supplementary sure
of
tina
hundred and forty one thousand
and twenty five dollars and
to
thirty
-SEVEL
cent's
defray
Hongking
165
Sir,
November 2
I have the honour to
ach: the receipt of your
Despatch No 202 of the 28th
Septi last encloring for the
signification of H. Me pleasure
transcript of
Ordinance ho
16 of 1897 and
to inform
ic
You
reply
that before
the charges of the year 1876 dealing with the Ordinance
2 Draft5 with 22.
to Andit Nr.
I shall aurit the arrival
of
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