1922-11-03 — Page 5

EXCHANGE CONTRACT

ACTION.

PUISNE JUDGE'S STRONG PROTEST.

SUPPRESSION OF EVIDENCE BY

BOTH

SIDES,"

**FALSE EVIDENCE" BY THE DEFENDANT.

THE

NONE ARE TO BE

BELIEVED." SOLICITOK SUGGESTS THAT THERE SHOULD BE A LIMIT TO PERJURY.

Curious developments occurred in "au action brought in the Summary Court before the Puiane Judge (Mr. J. R Judgment was given, yesterday, by the Wood), yesterday afternoon by Chue Puisno Judge (Mr. J. R. Wood), in the Choi Ting, a merchant, against Cheung Supreme Court action brought by the Kew, formerly trading as the Hongkong Bank of Canton, L. against the and Shanghai Carage. Wanchail The British Chinese Trading Co. In this plaintiff claimed 2875, the amount of a case, much evidence was given by ex-bill due to the Standard Oil Co., which change brokers and the issue depended he had guaranteed for the defendant when largely upon whether Mr. J.-M. Xavier, the latter was in fuancial strait the defendants' manager, was entitled to Mr. C. A. V. Busse was for the plaintiff enter "into exchange contracts on behalf an Mr. M. H. Turner for the defendant. of the firm. The brokers and they

The plaintiff, in evidence, said that the always did business with Me, Xavier and defendant approached him, saying, "You nover sa Mr. Chin Tin Cho, the pro are the only friend I know: will you Pricter of the firm.

"guarantee a certain sum of money inj order to keep me from going bankrupt?" The witnees replied, "I must know the exact sum, because guaranteeing is a dan gerous game." He ultimately signed the guarantee. After judgment had been given against him as guarantor he was arrested and sent to prison, but was leased later, on payment of the amount,

Mr. C. Jenkin (instructed by Mr. Hooper Messrs, Johnson. Stokes and Master) appeared for the plaintif and Mr. C. G. Alabaster, E.C., and Mr. Eldon Potter (instructed by Mesars. G. K. Hall Brutton & Co) for the defendants.

THE JUDGMENT,

In delivering a writen judgment, the Paisne Fadge said the sole dispute was whether the defendant firm was or was not fiable upon an exchange contract dated April 7th, 19:21 The Judge re- marked that it was not customary" for exchange contracts, unless made directly between the parties, to be in the form of a document signed by the contracting parties themselves, The agreement be tween the parties was renched by verbal communication carried by the exchange

broker who travelled between the banks and their merchant customers. The broker-poncerned prepared and signed a record in dupliente of the terms of the contract, delivering one copy to the bank

and the other to the enstomer.

After legal argument the Judge con?! sented to Mr. Russ enlling as a witness fitter from the Exile Garage, whom the defence had subpoenaed. The fitter wen into the box and denied that the defend. ant was a partner in the Hongkong and

Shanghai Garage. He was interested in He knew nothing about the

it himself.

guarantee.

Mr. Turner objected, on the ground

treat the witness as hostile,

Mr. Russ I shall certainly ask the

!

HONGKONG DAILY PREAS, FRIDAY, NOVEMBER SED 1999.

THE POSITION OF MUI TSÄI HOW DOES THE MATTER STAND1

MAGISTRATE RAISES THE POINT.

In the course of a Mui Tsai case at the

THE PLAYS OF JOHN GALSWORTHY, INTERESTING LECTURE AT THE HELENA MAY INSTITUTE.

The first of a series of very interesting Magistracy, yesterday afternoon, Mr. literary lectures was given at the Helens Lindsell asked Mr. A. E. Wood, of the May lastitute yesterday morning, the Secretariat for Chinese Affairs as to the lecturer being Professor R, K. Simpson present position concerning, the muita of the University of Hongkong, who system in Hongkong. He understood addressed the members and friends of the that according to the proclamation some Reading Circle, on The Plays of John time ago there were no longer any mui | Galsworthy," esis in Hongkong. Mr. Wood described In introducing his subject Professor the position as "Routing."

Simpson briefly compared the play and the novel. The former was difficult to read whilst the latter made easy reading matter. Shaw had realised this difficulty.

The case was that of a Chinese woman who was charged with harbouring a gift under 21 years of age, and, with obtain ing the sum of $70 from a woman by false pretences.

Mr. A. E. Wood of the Secretariat for Chinese Affairs, prosecuted and R. E. A. Webster defended.

tried to make his plays readable by prefacing then with lengthy introduc tions, which really amounted to redee tions on the play and ample descriptions of the characters before they actually appeared. Galsworthy, on the other The girl involved in the case, one Ng hand,, restrained himself. He would Sui Hing, said she was 17 years of aga probably describe a character as "a mas and that she lived at No. 7, Chin Shin with a keen eye for the molehill and none- Street. West Paint. She had been a pur at all for the mountain." With that he fani for nine years. The defendant was!

was satisfied. That was why play read-

*was difficult. ing

I never had been her neighbour. On April ath last her! mistress having gone back to her native?

popular reading matter, though it was more popular to-day than ever before. village a concubine and the mud raai were The modern author was in rather a left in charge of the house. On that date dilemma. He felt the time had come for

house to make a purchase, and at 6 pin, sho and the defendant's daughter left the the play when the English taste

towards the drama. "Galsworthy first! when she returned home she found her started writing" novels, and produced mistress had come back from the country. Silver 'Box"

several novels before his first play "The For leaving the house against her this not adopt Shaw's style of lengthy intro- was published. He did:

tress's express wish, the mui ti was ductions. He trusted that his readers;

admonished and given a beating. On the following day the girl met the defendant

FIZIS

bad the necessary imagination and that a

the "stage it was a different proposition.

Galsworthy's plays, were in the upin- long preface was not essential. in the street. The defendant suggested ion of the lecturer, an required taste-. Mr. Russ expressed astonishment and that she should ran away. The defendant at least as regards rending waiter. On asked, Do you know me by sight?"

told her to pack up her things. "The same "A reading taste for Galsworthy's plays that Mr. Russ had not had permission tonight the defendant's daughter came to is like a taste for gin and bitters-it is the hui trai's house and removed her acquired, added the lecturer. He had a decided bitterness, a grimness which ffects. Next morning at 6 o'clock, while was only relieved by the piquancy of his out making a purchase, the mui tani met style. Some people might say that his hurt to allow me to treat him as the defendant who persuaded her to cross plays were like absynth, which was an hostile witness, and also ek leave to over to Yaumati where she lived with a not like Shaw's which, the lecturer even more acquired taste. They were The contract in question was made amend the writ in order to sue him as relative of the defendant for about 10 likened unto champagne, sparkling and Yet Galsworthy through Mr. Jarasetjee, a broker, and so partner. It is a disgraceful thing. This days. Later, the defendant herself moved

bubbling with humour. had one ** **O exceptions. The

some "house. Sometime later the defend rand" in "Pigeon" showed traces of a deficiency of ant married her to a young man named humour. There

humour in all his plays. Suicides ap- going on, in view of the evidence alrendy Lau Su, whom the did not kry. The appeared to be one of his main themes, given. None of these people are to be defendant at the time of the marriage but what little humour appeared was very quiet and thin, when it became believed. "We have seen them all before. told her in future to address her as obvious it was inclined to become grim.

Mr. Russ: It is rather annoying whendunt. Later she was discovered and people give instructions and then come here and say they know nothing about it, taken back to her mistress.

far

a

as the defendant firm was concerne man has instructed ug himself. He knows to Yaumati and rented a bed space in the Bohemian vagabond character. Fer.

the broker received hi- instructions orally from Mr. J. M. Xavier. In order

to succeed plaintiffs must show either that Mr. Xavier contracted as agent for the defendant firm and within the limits of his authority as such agent, or that he was held out by the defendant firm a possessing sufficient authority to bind the firm to the contract.

THE MANAGER'S POSITION IN THE FIOM

The British Chinese Trading Co. was the trading name of Mr. Chin Tin Cho, the sole proprietor, who appointed"Mr. Xavier managed on August 25th, 1019. Plaintiff's case was that Mr. Xavier had the necessary authority conferred upon him by the terms of his original appoint ment; or alternatively by the extension in practice of his powers, or, again, by express instructions relative to the par- Sicular contract. His Honour accepted the evidence of Mr. Tse, who grew up the agreement, that it was to confer on the manager no capacity to contract for the firm, whether orally or in writing. "The authority of Mr. Xavier is affirmat by the plaintiffs," said his "Honour. The onus of proof rests on them. In my opinion they have not discharged this onus." The plaintiffs are the less likely to succeed in this branch of their case by reason of the fact that the firm's letter to the Bank informed them that Mr. Xavier's authority was limited."

EXCHANGE BROKING RESTS ON INSECURE.

LEGAL FOUNDATION.

all about this guarantee.

"

The Judge: I am afraid it is, no use

was

Galsworthy had none of the abandon She had of the true humorist. In working at his plays he showed a great hardness and

I do not pretend to be a saint, your always been treated properly by her mis- caution and people were inclined to think lordship, but there are limits to which tress. perjury in the Courts can be permitted.

Mr. Turner argued that he witness could not be treated as a hostile witness. "He may not have a very fortunate face," said Mr. Turner, "but I do not think ho has given his evidence in a truculent manner."

The Magistrate: And yet you aways?

."

ran

that his caution war worthless, but his theory represented one of the professed duties of art. His theory was enlighten- ment. This theory had grown very pro- "The Mui Taat I had been enticed to minent during the last-hundred years. do so.

There had always been a tendency to work towards this end and that tendency was to give instruction and, not pleasure.

The Magistrate: If you were enticed

suppose.

The Judge decided to allow Mr. Russ to commit suicide you would do it. It was not a theory that was easy to to treat the witness as hostile. Replying to Mr. Turner he said he did so on the ground that he believed the witness was. interested in the other party.

produce with access. The public resent ed a work of art which tried to instruct. The girl gave no answer to this quesThe public did not like to read a play, tion. Mr. Turner: I would like to enter a

protest: This man has shown no hostility in the box.

At the conclusion of the man's evidence. the Judge non-suited the plaintiff and gavo the defendant costs.

which, for instance, propagated kro then asked Mr. Wood what was the pre-author arrested the reader's attention. It was at this stage that the Magistrate hibition. The real test of a play of enlightenment was whether" or not the

Mr. Bass pressed the witness with a sent position as regarda muž tenis. Who There was no doubt that Galsworthy number of questions but he did not alter has the control of them?" queried his succeeded in doing that. His plays were his statement,

always arresting. Worship.

Some people, continued the lecturer, Mr. Wood: I think if you will read said that literature as a work of art had the Ordinance that if anyone harbours or to transport one's feeling; others said a work of art should inspire awe and that takes away any girl under the age of 21.even the highest feeling of humour without the consent of the girl's guardian, should be that of awe. Galsworthy did all this. He arrested the reader, but he that person is liable.

gave little pleasure, though his reader always asked for more. To carry the! lantern of enlightenment was the objecti ol_Galsworthy's plays. - a

Dealing with the morals of the plays, the lecturer said it was the general

works all good

of opinion that art had a moral and that they were not good if there was no moral purpose. In this direction Galsworthy, one might say, was a contradiction of the great writers of the day, He was certainly in the minority, and did not write for the sole purpose of producing a moral.

There were three ways in which the moral could emerge from the play. Sir

The Maginrate: Where is the lawful guardianship now rested i Who is the lawful guardian of the mặt til The law, says there are no mus texia ?

A FALSIFICATION OF EVIDENCE." "I enter this judgment without hesita- tion,” added the Judge, on the case sa presented here. At the same time, I wish to add that the conduct of the case for both sides has been marked by the sup- pression of material evidence and on the side of the defendants by falso evidence given by Mr. Chia Tin Cho himself.

Mr. Wood: Technically speaking Throughout the ease the plaintiffs have, don't think that is clearly settled. That As to the custom of the exchange according to the statement made by their point will have to be settled when some market in the Colony, his Honour said counsel, been in communication with Mr.

it appeared that local banks accepted J. M. Xavier himself, the man.in which law is passed dealing with the matter. exchange contracts, not upon the faith of they have asserted the necessary autho The Magistrate: I understand a pro- any representations on behalf of the rity to exist, and yet his evidence has clamation has been passed which allows customer made by the exchange broker not been forthcoming on a matter which

(for he made none) but entirely in must primarily be within his knowledge. the mus tras to go free.

reliance on the professional care and skill On the other hand, I am satisfied that Mr. Wood pointed out that the guard-Walter Scott produced a successful bera of the exchange broker himself. It re- Mr. Chin Tin Cho connived at the pre-ianship now rested with the Secretary and a villain who was always punished. mained for the banks to satisfy them-paration of the exchange contract book

a typical

selves of the identity of the customer, for the purpose of this action, so as to for Chinese Affairs For a girl' to be He instanced" Ivanhoe" as

example of this. The second system of

*** SHOULD BE a cause of disSATISFACTION TO.COUNCIL.”

his solvency and his capacity to contract.found upon it a, false impression sa to taken away the person who did so had to bringing forth the moral was Shaw's The only responsibility of the broker was the custody of his firm's exchange con- have the written consent of the Secretary idea of setting up his code, of morals to ensure that the persons on both sides tracta—a falsification of evidence which from whom he took his instructions deceived his own solicitor, Mr. Brutton for Chinese Affairs: Further the onus against the accepted code of moral His [playe were nearly all written on that understood the agreement after it was I fully accept Mr. Brutton's explanation in this case was thrown on the defendant principle. In war Shay's idea of the reached, in identical terms. The ex-made in Court that he tendered the book to prove that she had the written con-hero was not the man with the long change broker performed his services in evidenco in entire good faith... within narrow and well understood

sent of the lawful guardian of the child winging sword but the keen business man who thought out the problems of hmita. He was not on agent of either

to do so, which in view of recent events war quietly, party to the exchange contract. The

Galaworthy, continued Professor Simp- parties, though they appreciated his as- "Mr. Chin Tin Cho has also given now rested with the Secretary for Chinese sistance, in fact reached an agreement false evidence in the witness-box. In Affairs Mr. Wood pointed out that the eon, was not satisfied with either of these. independently of it. He merely placed asserting that he, himself, made exchange point was worth considering at his Wor-He did not offer any new moral system, The agreement on record for their con-contracts with the brokers, Messrs. Cooper ship's leisure. What difference legisla He did not suggest any moral code, nor venience. If this statement of the prae- and Jamsetjes, he seemed to me, without tion would make to the system he could was it his purpose to establish any new tide in the exchange market to correct doubt, to be atating what was wholly un- not my. At present the whole thing was code. Ho did not want to set up

PIQUE. He pointed to the garbigo in the ald the Indge, it follows that no hold true. Further, in cross-examination, he floating.

Mr. Webster said that so far as the streets and left it to the readers them. ing out of an agent can be effected to a admitted that the defendant firm had in bank through an exchange broker: Until 1990 made a claim against an American actual facts were concerned the defendant solves to look for the moral,. His pur- an exchange contract is confirmed by the firm, the particulars of which would be did actually take the child, but under pose was purely that of enlightenment. -contracting parties, confidence in this material evidence in this action. Those different circumstances than those alleged At the conclusion of the lecture Mrs. market appears to rest, legally, on in-particulars have, nevertheless, not been by the girl. The defendant did not har-J. Kemp, the acting President of the -store foundations.from

disclosed to the Court. The position in bour her. They took her away for ber Institute thanked the Professor for the splendid "mental appetiser, he, had which the evidence in this cate has been own protection.

The Judge held that, in both section

дет

of their crec, the plaintiffs had failed to left is cause of dissatisfaction, to me. At this stage the argument was dropped given them, and hid they would eagerly establish their cause of action and be and I suggest that it should also be a and further evidence for the proscention look forward to hearing Professor Simp therefore entered judgment for the de canse of dissatisfaction to the counsel was called, after which the case, was ton again next week fendant firm with coste, "

engaged in it. Neither party has been adjourned to Monday neat for further The lecturer was heartily applauded frank with the Court."

bearing

and the meeting terminated. (Vontinued a foot of acel sodima.)

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