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THE INFANTS' MORTGAGE CASE.

APPEAL BY TWO YOUNG MEN SUCCEEDS.

NO FRAUDULENT REPRESENTATION,

THE MEANING OF "FULL AGE" IN CHINESE LAW.

Judgment in the appeal against the decision of Mr. Justice

J. R. Wood in the case which came to be popularly known as the "Infants' Mortgage Case," was delivered yesterday in the Full Court presided over by the Chief Justice, Sir Henry Gollan. Tho appeal was allowed.

The appeal was heard by the Chief Justice, Sir Henry Gollan, Sir Peter Grain and Mr. Justice J. R. Wood. It was concluded on March 7th, after a" 4} days' sitting.

The appellants were Lod Kwong Lam, 57, Caine Road, and Loo Kwong Him, of the same addrem, infanta, and the respondents were Li Koon Chum and Wing Fat Shing, 61, Wing Lok Street, and Kan Tong Po, the chief manager of the Bank of East Asia, Ltd., 10, Des Voeux Road Central.

.

Counsel for the appellants were Mr. Eldon Potter, "K.C., and Mr. H. G. Sheldon, while Mr. F. C. Jenkin appeared for the respondents.

The circumstances of the case are biefly that the appellants with four other brothers had mortgaged some property amounting to 8:00,000 an Inland Lot No. 1 in the course of the settlement of their father's will. Allegation was made against the appellants that they represented themselves to have been of fult age. Their claim was that they were not responsible for the mortgage, being minore at the time, and that they did not know the nature of the" documents which they signed."

Appellanta' age was the most important factor which the judges had to decide. Sir Henry Gollan's view of their age was given thus. In none of the evidence is it over said that the appellants stated on alleged themselves to be 21 years of age, the expression used in och instance is "of full age." Now it is obvious that such an expression with reference to a Chinese youth is, to say the least of it, ambiguoua,"

Sir Peter Grain's decision on this point was also to the effect that "of full age" to a Chinese would mean about 13 years of age or thereabouts. He in common with Sir Henry Gollan found that there were no fraudulent representations made by the appellants.

Mr. Justice J. B. Wood upheld the decision given by him in the Lower Court.

STATEMENTS OF CLAIM.

The statement of claims on which the appeal was based were follows:

as

Claim (a) a declaration that as regards the plaintiffs interest in one third part of the whole of the said property the indenture of mortgage for $400,000 on February 10th, 1923, on Inland Lot No. 7 is null and voidi

(b) A declaration that the said

further alleged that on February

Tall Age

"There is a further consideration which also affects my judgment. In none of the evidence is it ever asid that Lam and Hin were stated or alleged themselves to be 21 years of age; the expression used in each instance is "of full age." Now it, is obvious that such an expression with reference to

Chinese youth is, to say the least of it, ambiguous,"

After summarising the findings of Mr. Justice Wood, his Lordship went on to deal with the points argued by the defence on the ques- tions of aga and fraud. In this connection ho said "Sung is dead and the plaintiffs both deny that the release was over interpreted to them; and I am of opinion” that there is no evidence on which it would be safe to come to the con- clusion that the release was ever, in fact, interpreted to either of the plaintiffs,'

Dealing with authorities his Lord- ship said "In view of the opinion I have formed as to the absence of any fraudulent misrepresenta tion on the part of the plaintiff it is not necessary for me to express any deânite opinion on this part of the case made on behalf of the plaintiffs. I will only say that most of the authorities cited were caats. where the party aggrieved was suing an infant defendant; not of an infant plaintiff, who admitted his fraudulent conduct, seeking directly to victimise an honest and deceived defendant.

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A REFUSAL TO BE

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translated from the legal and Chinese by a Chinese interpreter. technical English phraseology into The appellants said that the docu- ments were not translated to them, PEDESTRIANS AND DISTRICT and I consider that the balance of the evidence shows that it iá very doubtful whether they were trans- lated.

Having gone through all the evidence at the triat I am of opinion that there is no evidence of that clear, conclusive and explicit character which has been held so necessary in many reported cases to establish a ples of a fraud. I am therefore of opinion that the mort gage deed is nult and void.

Concluding his Lordship said "A point was taken by Mr. Justice Weed in his judgment that this action is not properly constituted as certain necessary parties' are lacking Counsel for the respon- dents did not rely on this point in

I am therefore of opinion, that answer to the prayer of the ap- this appeal be allowed and that the pellants that the judgment should appellants are entitled to the relief be set aside; and I therefore do not | ušked for in the statement of claim, propose to deal with is except by with costs here and in the Cours saying that I do not think is pre- below, aludes this court from granting the relief asked for on this appeal.'

|

MR. JUSTICE J. R. WOOD. UPHOLDS HIS JUDGMENT IN

LOWER COURT.

After referring to an authority, his Lordship concluded. "I am of opinion that no exprear representa- tion has been conclusively brought home to either of the plaintiffs in this case that their appeal should in the lower Court, Mr. Justice J. To upholding his judgment given

| 10th, 1923, in the office of Meersbe allowed and that they are en-R. Wood said: "I am still satisfied

Wilkinson and Grist, it was stated titled to the relief they ask for in paragraph seven of the statement of rerbally on behalf of the plaintiffs claim, with costs here and in the and in their presence by T. L. Sung court below." that the plaintiffs were both of age. In this connection his Lordship said

Even, therefore, if I were satis fed that this statement had been made by Sung on behalf of Lam to Messrs. Hastings, Dennys and

SIR PETER GRAIN.

DIFFICULTIES OF UNDER- STANDING A LEGAL DOCUMENT.

WATCHMAN.

A Chinese-appeared before Major C. Willson at the Central Magis- tracy yesterday afternoon, on the charge of assaulting a

District Watchman on the 14th instant at

Morrison Street, off Des Vaux Road.

Hr. F. S. Losbey appeared on behalf of the defendant, and in- timated that he would file a cross- summons

against the District Watchman för assault.

up

The watchman told the · Court that the defendant and another Chinese were walking along Mor- rison Street, and he approached the man with the defendant and said that he wished to search him. He produced his official badge and the person allowed himself to be defendant and walked away accom searched. He did not search the ponied by another district watch that both the appellants intended man.

defendant Suddenly the to obtain money for themselves, to сате which they know they were not im- mediately entitled, also that with this object, they delijerately exer- cised for themselves the legal capa city of adults, fraudulently, with the intention of denouncing their contract, if at any time the market went against them. Solicitors and others were media through which the appellants conveyed their false thus inducing them to make the contract. Their fraud was actual, and was actively prosecuted through.

authority to search his friend, and and questioned his

called Indian constable to arrest. him (witness). The witness then asked defendant to come to the Police Station where he would prove his identity. The defondant refused to come, and witness at tempted to arrest him, but was struck on the face. He then blew his police whistle and chased the defendant was arrested and brought to the Police Station.

covenant to repay. is inapplicable | Bowler and that it was binding on after enumerating the claims of the representation to the respondents, defendant who had run away. The.

to the plaintiffs and is to that ex- tent null and void.

(c) A declaration that one third part of the mortgaged property is vested in the defendants as frustees to have and to hold the same to the use of the plaintiffs.

(d) An order from the court that the defendants do execute an assign meat in favour of the plaintifs of La interest in the said property equivalent to one, third of the whole. SIR H. GOLLAN'S JUDG- MENT.

APPELLANTS VICTIMISED BY

#

AGENTS.

the latter, I do not see how it can be said to have deceived the de- fendants and induced them to act ia their detriment seeing that it

The watchman who was with the last witnees at the time corrobor

Cross-examined by Mr. Losbey-

In his judgment, Sir Peter Grain, appellants, said "The main de tence to the statement of claim and delence was that the plaintiffs reagents, I think I may say the only real presented themselves as being able It was found in the Coart belowated, was never communicated to them; privy to such, representation and f.tiffs knew that the false representa- he said that he did not think the to make the said mortgage or were that the appellants, who are plain- that such representation to the tion made was being made, and knowledge of the plaintiffs was also understood its meaning and false and fraudulent and further effect. The judgment below has more induced the defendants to be- decided that the representation was come parties to the said mortgage.

made to all whom it might concern, and that among those concerned were the respondents

so far La the evidence shows. However, both the plaintiffs denied that they heard Sung make any

such statement.

must

jaw, knocking him down. The defendant, then took to his heels, but the watchman blew his police who was eventually caught and whistle and chased the defendant, taken to the Police Station.

last witness wanted to arrest the defendant but merely wished him to come to the Police Station to prove that he had the authority claimed.

One of the two Indian.constables His Lordship continued "Leung's The main issue in this case is

who were close at the time of evidence on behalf of the defendants whether or not the fraud alleged

the incident told the Court that he was most important in this.. con- against the appellants has been nection

If also found that the appellantsaw the watchman search the defen- corroborates Li Koon proved by clear, conclusive and ex: actively perpetrated this fraud dant's friend. When the watch- Chun and Kan Tong Po, the de- plicit evidence?

man wanted, to search the defen- through their agenta. On this fendants, and he further stated that

The In testing the evidence given at issue of frand, I re-affirm the dant the latter refused. when the mortgage was being ex- the trial, I am of opinion that the opinion formed below. The dis watchman then came up and told ecuted at Mesere Hastings, Dennys evidence of Sung Taui Lun and honest purpose was carried into him that the defendant would not After setting out the history of and Bowley's Lam had, he the Leung Wing Cheung, the inter-effect by concurrent signature of a allow himself to be searched. the case his Lordship referred to matter of age was being discussed, preters, should be jettisoned and series of legal documents. My Witness told defendant he the parts taken by Mr. T. L. Surg, tapped his chest and said "I am not considered. I am of opinion opinion was formed on seeing the allow himself to be searched, but of age.". Lam absolutely denies that they were both biassed wit appellants se witnesses. It remains when, the watchman approached, now dead, a former senior inter that he did any such thing or made inesses; they were interested in the unshaken even though my judgment the defendant struck him on the preter to Mesars. Dennys and Bow any such statement. None of the transaction being completed and seems to have been in error in ley, which is now Messrs. Hastings, others witnesses called for the de- each was to receive some commission certain statements concerning the

fened speak to this incident and it Dennys and Bowley and Leung is further to be observed that when tion.

on the completion of the transac- | deed of release. That deed did not Suspicion is therefore cast in fact contain an express reference Wing Cheung. In assisting the the letter of September 4th, 1928 was upon their credibility and their to the age of the appellants them- brothers to obtain their rights the written, Leung was also available credibility is very material to the selves and it appeare never in fact former demanded 10 per cent. of and yet nothing was said in that issue, and consequently I do not to have been sent to the office of

Mr. Losbey asked witness if it letter about this alleged express rely on their statements,

Messrs. Hastings, Bennys and Bow.

was possible that the watchman the value they recovered and misrepresentation made by Lam as la the course of the negotiation fey for interpretation.

struck the defendant, firit, but the later demanded additional to his age. After dealing further and the carrying out of the tran- The desire to obtain money from witness replied that they were both five per cent for Leung Wing Leung's recovery of five per cent. the phrase of "being 21 years of the appellants. This was, the direct struck the firet blow...

with the point, and remarking that saction, according to the evidence their father'e catate was evident in struggling, and could not say who Cheung, alias Walter Ford, and depended on the transaction going age never seems to have been used, cause of what was done.

The Magistrate: What made according to the evidence a sum through, his Lorthship gave it as the phrase always used was fuli totalling 15 per cent was paid to roborated statement should not be

If the finding of the issue of you think that the watchman want- hia opinion that eung's uncor- age. According to Chinese law, fraud in the Court below be main- ed to search the defendant ???

Witness: "He called out search Szog but Leung had sworn the accepted in preference to Lam's age

full age is about 15 years of Lained, the legal consequences have your person (in Chinese), and he

OT thereabouts, and the been in my opinion rightly assign- money was paid to him on another | denial. - BA account altogether. It is not

through some transactions concern the principles of equity with the appellants had already carried ed. The problem then is to adjust aleo told me so later,

Magistrate "The first two wit- material to this case to assess the

ing Land in Macao either according position of the infant st common

nesses say that the defendant went credibility of the evidence on this

to Chinese law or the law prevail-law. I adhere to what I have said

over to the Indian constable first, point. It would be difficult to

ing in Macao, where 21 years was in the Court below. I felt strangly man told you that the defendant

but now you say that the watch record a final decision upon it

not the age of majority, but an the force of the argument for the refused to be searched. The evi- satisfactorily without Mr. Bung's

age far less than 21 years evidence. A suspicion remains with

appellants that the order of the dence is very complicated and I Court below has enabled them to do me that the plaintiffs and their four terest which Sung and Leung had Court below "ound as a fact that nothing which they could not al. am inclined to, disbelieve the "first brothers have in this manner been victimised by their agents in a way for which they themselves are in large measure to blame."

His Lordship continued to deal with the case as regards age and fraud when the release was executed after which he said After & care ful ebasideration of the evidence I have come to the conclusion that having regard to the personal in- in putting this transaction through, and to the small amount of reliance that can be placed on the evidence of Leung, I am unable to accept It is obvious that it was of the evidence of the latter when it importance to Sung and Leung that conflicts with that of either of the the documents executed on Febrü- plaintiffs. As his is the only ary 10th, 1923, should be signed direct evidence as to any express without any question arising about misrepresentation made by His, I the infancy of Lam and Hin; Ifan of opinion that I must accept it did the whole transaction might Hin's statement with regard to this not have gone though. In any matter." case Sung and Leung would not have received their 15 per cent. from the two infants.

"As I have already shown, Leung corroborated by the two defend- anta as regards the statement made After dealing with the second

by Sung on the subject of Lam's mortgage for 8100,000 which, it was

Age; but, these latter were very late Alleged by the plaintiff was mainly tion. The defendant Li Koon Chun in recollecting any such representa for the purpose of paying the respective percentages to Bung and a recollected the fact after a

The learned trial judge in the the appellants had acquired a work ing knowledge of English. I must accept that although as they did not speak English in the witness box, the only evidenco of their know edge was that they had been to Hoag Kong University and said they could speak English. But a working knowledge of the English language and the understanding of legal document, drawn up in Bag- Lish legal phraseology, are two very different things.

יה

ready have done without it, and that the assistance of the Court is rugatory. The legal remedies of the appellants are not hereby ex hausted They may obtain a de claration that they are not liable on the personal covenant to repay, but this will not content them.

The respondents have not elected to rely upon my ruling. In my opinion the Court should order the co-inortgagom, to be made parties to these proceedings before varying by order this contract of mortgage.

In my opinion this appeal should

APPEAL ALLOWED.

I think I am justified in saying that the average Englishman (not being a lawyer) who has an English far. legal document read to him, would what it was intended to convey. He understand nothing or very little of would have to go through it sentence then said that the decision of the His Lordship, Sir Henry Gollan, conference at which Leung was preby sentence, and phrase by phrase Leung, his Lordship went on to Dent, and all the circumstances of before he would realize the realpuri majority of the Court was that the 1 deal with the aspect of fraud put this case make me distrustful of say i port of the document.bodhibernett) Jappent should be allowed. forward by the defendants in their inspiration derived from that per

Mr. Jenkins applied for a stay pleadings This was to the effect

On the whole I have come to be for a Chinese speaking youth of 14 days, and as Mr. Potter that the infants fraudulently sign the conclusion to accept Lam's to comprehend the facts stated raised no objection, the application ed the documents by comerating the denial with regard to this matter." in the formal English legal doed was allowed.

fact that were not of age. It was

How much more difficult it would

witness!!!

J

Mr. Losbey said that he would withdraw the summons against the watchman should his client be dis charged

and the case was dismitted,

The Magistrato agreed to this

GUNMEN IN MOSCOW.

On January 5th last Pravda, the official Soviet newspaper, reported:

A special group (of visitors) in composed of ten Irish revolution- aries. This group came to Russia, together with English delegates. under the leadership of Will Lawther

Speaking on behalf of the Trish group, Cornwell said: “Our country has to fight against Eng land exactly like yours. Trish sympathies are with you, and we hope that the next Soviet Repub

he will be Ireland.