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THE HONGKONG TELEGRAPH,

A SUCCESSFUL APPEAL.

JUDGMENTS IN THE INFANTS"

MORTGAGE CASE.

MR. WOOD DISAGREES.

WEDNESDAY, MAY 23, 1926.

Confilet of Evidence.

there is no evidence on which it would be safe to come to the con- elusion that the release was over, in fact interpreted to either of the plaintiffa."

Dealing with authorities his Lordship said "In view of the opinion I have formed as to the absence of any fraudulent misre présentation on the part of the plaintiff it is not neetakary for me to express any definite opinion on this part of the case made on I will behalf of the plaintiffs. only say that most of the authori- ties cited were cases where the party aggrieved was suing an in- fant defendant; not of an infant plaintiff, who admitted his fraudu. sent conduct, seeking directly to victimise an honest and deceived defendant."

"think I am justifled in saying that the averago Englishman (not being a lawyer), who has an Eng- lish legal document read to him, would understand nothing or very liftie of what it was intended to convey. He would have to go through It sentence by sentence and phrase by phrase before he would realize the Faal purport of the document."

"How much more dificult it: would be for a Chinese speaking youth to comprehend the facts stated in the formal English legal deed, translated from the legal and technical English phraseology Into Chinese by a Chinese inter- preter. The appellants said that the documents were not translated to them, and I consider that the balance of the evidence shows that it is very doubtful whether they were translated."

Fraud Not Established.

was alleged by the plaintiffs, was mainly for the purpose of paying the respective percentages to Sung and Leung, his Lordship wont on to deal with the aspect of fraud put forward by the defendants in their plendinge. This was to the affect that the Jnfants fraudulent ly signed the documents by con- cealing the fact that they were not It was further alleged of age. that on February 10, 1825, in the office of Messrs. Wilkinson and The infants' mortgage appeal Grist, it was stated verbally on case, which was heard by the full behalf of the plaintiffs and in Court of Appeal at the Supreme their presence by T. L. Sung that Court by the Chief Justice, Sir the plaintiffs were both of age. Henry Gollan, Sir Peter Grain and In this connexion hie Lordship Mr. Justice Wood, was disposed of entd "Even, therefore, if I was yesterday afternoon when fudge satisfied that this statement had ment was delivered by Sir Henry been made by Sung on behalf of Gollan sitting with Mr. P. Jacka, Lam to Messrs, Hastings, Dennys in which the appeal was allowed, and Bowley, and that it was bind- The case centred round a mort- ing on the latter, I do not see how gage on-Hongkong property for it can be said to have deceived the $400,000 in which two brothers, defendants and induced them to Lo Kwong-lam and Lo Kwong-hin act to their detriment seeing that nover communicated to asked for their share of the it was mortgage to be ruled null and void them, so far as the evidenco on the ground that they were shows." under 21 years of age when they

cases to establish a plea of fraud. Post free at 60 conts por vial The respon- signed the deeds." dents, Li Koon-chan and Kan

His Lordship continued "Leung's not propose to deal with it I am therefore of opinion that the from the Dr. Williams' Mediathe elder brothers, Tong-po, two

"I am therefore of opinion that alleged that the appellants had ovidence on behalf of the defen-cept by saying that I do not think mortgage deed is null and vold." Co., 60, Kiangse Road, Shanghai,

He corroborates Ling tile rellef asked for on this this appeal be allowed and that falsely represented themselves to dants was most important in this it precludes this court from grant- be of age.

Koon-chun and Kan. Tong-po and uppeal," The original judgment was dee further stated that when the livered by Mr. Justice Wood, when mortgage was being executed at he was acting Chief Justice, which Messrs. Hastings, Dennys and adverse to the younger Bowley's Lam had, when the mat- brothers (plaintiffs and appelter of age was being discussed, lants) and against which the appeal was allowed. Both Sir tapped his chest and said I am of age Lam absolutely denies that Henry Gollan and Sir Peter Grain he did any such thing or made None of the ruled the mortgage null and void but Mr. Justice Wood adhered to other witnesses called for the de- his original decision in the main, fence speak to this incident and and expressed the opinion that the it is further to be observed that when the letter of 4th. September, The appellants claimed: 1.

1926, was written, Leung was also declaration that as regards their available anl yet nothing was said interest in one third part of the in that letter about this alleged whole of the property the inden-express misrepresentation made by turer be declared null and void. Lam as to his age." 2. A declaration that the coven- ant to repay was inapplicable to them and was, to that extent, null and void. 3. A declaration that one third part of the mortgaged property was yeated in the defen- dants (respondents) as trustees to have and to hold for the use of the plaintiffs (appellants). 3.

How delightful, it is te sally forth feeling well groomed, woll' breakfasled and well pleased with onc's-self and the whole world! Assuming that your tailor knowa his side of the business Plaketten His Lordship further said "A point was taken by Mr. Justice

will do the rest, for they keep the Wood in his judgment that this

"Having gone through all the liver goodtempered, the digestive action is not properly constituted as certain necessary parties are evidence at the trial I am of apparatus alert, the spirits cheery, lacking, Counsel for the respon opinion that there is no evidence the brain clear. Of chemists, dants did not rely on this point of that clear, conclusive and ex- Finkettes, the dainty little laxative in answer to the prayer of the applicit character which has been liver regulators, can also be had pellants that the judgment should held so necessary in many reported be set aside; and I therefore do

WA3

appeal should be dismissed.

A

connexion.

any statement.

After dealing further with the point, and remarking that Leung's recovery of five per cent, depended on the transaction going through, his Lordship gave it as his opinion that Leung's uncorroborated state ment should not be accepted in preference to Lan's denial,

Appeal Allowed. After referring to an authority, his Lordship concluded "I am of opinion that no express represen tation

has been conclusively brought home to either of the plaintiffs in this case, that this appeal, should be allowed, and that they are entitled to the relief they ask for in paragraph seven of the statement of claim, with corts here and in the Court below."

Sir Peter Grain.

In his judgment, which was read by Mr. P. Jacks, Sir Peler Grain, after enumerating the claims of the appellants, said "The main de- fence to the statement of claim, and I think I may say the only real defence, was that the plain tiffs represented themselves as being able to make the said mortgage or were privy to such representation, and that such re- presentation to the knowledge of the plaintiffs was false and fraudu- lent and, furthermore, induced the defendants to become parties to

The main issue in this case is, has the fraud alleged against the appellants been proved by clear, conclusive and explicit evidence?"

Leung's Personal Interest, An order from the court that the respondents execute an assign-

His Lordship continued to deal ment in favour of the appellants of an interest in the property with the case as regarda age and equivalent to one third of the fraud when the release was ox-the said mortgage.

ecuted, after which he said "After whole.

Mr. Eldon Potter, K. C., toa careful consideration of the gether with Mr. II. G. Sheldon, instructed by Messrs. Hall Brut Lon were for the appellants and the case for the respondents was conducted by Mr. F. C. Jenkin, In- structed by Messrs. Johnson, Stokes and Master.

evidence I have come to the con- clusion that, having regard to the personal interest which Sung and Leung had in putting this transac- tion through, and to the small amount of reliance that can he placed on the evidence of Leung,

the appellants are entitled to the

relief asked for in the statement NEW MUSIC

of claim, with costs here and in the Court below.

Deliberate Fraud.

the

In upholding the judgment given in the low court, Mr. Justice J. R.' Wood said, "I am still satisfied that the appellants both intended to obtain money for themselves, to which they know they were not immediately entitled, also, that with this object they deliberately exercised for themselves Jogal capacity of adults, fraudu lently, with the intention of do- nouncing their contract, if at any time the market. went against them. Solicitors and others were media through which the appel lants conveyed their false repre- sentation to the respondents, thus inducing them to contract. Their fraud was actual, and was actively prosecuted through agents."

merely acquiescent in the repre- sentation of others, or again might allege that the representation was not made to the plaintiffs in the action and did not induce any line af conduct on their part. Thus, though admitting their deceit, they might still aupport their contracts."

"The idea of fraud applicable to this case, may be analysed in the following way: If the appel- lants were sued by the respon- dents for a declaration that by reason of the appellants' fraud the respondents were entitled to avoid this contract, they could state that the representation made was so made without their knowledge, yet "In testing the evidence given it was made without their under- at the trial, I am of 'opinion that standing of its meaning and effect, the evidence of Sung. Taui-lun They would thus negative the al- and Leung Wing-cheung, the in-logation of intention to deceive. terpreters, should be jettisoned Also they could admit that they I am of both know the fact of the repre- After setting out the history of am unable to accept the evidence and not considered. the case Sir Henry Gollan referred of the latter when it conflicts with opinion that they were both blaa- sentation and its effects, and thus to the parts taken by Mr. T. L that of either of the plaintiffs, sed witnesses, they were interest-adopting the deceit might, plead- ing their infancy, say that they Sung, now dead, a former seniorAs his is the only direct evidence ed in the transaction being com- interpreter to Mesars. Dennys and as to any express misrepresenta-pleted, and each was to receive were not active participants in Bowley, which is now Messrs. Lion made by Hin, I am of opinion some commission on the comple- the representation itself, but were Hastings, Dennys and Bowley, and that I must accept Hin's statement tion of the transaction. Suspicion is therefore cast upon their credi- with regard. to this matter." Leung Wing-cheung in assisting

"As I have already. shown, bility and their crollibility is very the brothers to obtain their rights Leung is corroborated by the two material to the issue, and conse- when the former demanded 10 per defendants as regards the state- quently I do not rely on their cent, of the value they recovered and later demanded an additional ment made by Sung on the subject statements."

of Lamm'a age; but these latter

Meaning of "Full Age." five per cent. for Leung Wing were very late in recollecting any eheung, alias Walter Ford,

such representation. The defen "In the course of the negotia- cording to the evidence a sudunt Li Koon-chun only recollect- tations and the carrying out of totalling 15 per cent, was paid to Sung but Leung had sworn the cd the fact after a conference at the transaction, according to the money was paid to him on another which Loung was present, and all evidence, the phrase of being 21 found in the Court below that the

"It is not the circumstances of this case

years of age' never sedms to have appellants, who are plaintiffs, material to this case to assess the make me distrustful of any inspira- been used, the phrase always used knew that the false representation tion derived from that person, was full age According to made was being made, and also credibility of the evidence on this on the whole I have come to the Chinese law, full age' is about 15 understood its meaning and effect. point. It would be difficult to re-conclusion to accept Lam's denial years of age or thereabouts, and The judgment below has decided cord final decision upon it satis- with regard to this matter." the appellants had already carried that the representation was made factorily without Mr. Sung's evi-

"There is a further considera- through some transactions con-to all whom it might concern, and dence. A suspicion remains with tion which also affects my judg-cerning land in Macao either ac- that among those concerned were me that the plaintiffs and their ment. In none of the evidence is cording to Chinese law or the law the respondents."

"It also found that the appel- four brothers have, in this manner it ever said that Lam and Hin prevailing in Macao, where 21 years been victimised by their agents were stated or alleged themselves was not the age of majority, but lants actively perpetrated this

fraud through their agents, In a way for which they them- selves are in large measure to to be 21 years of age; the expresan age far less than 21 years.

sion used in each instance is "of "The learned trial judge in the thie issue of fraud, I re-affirm the "It is obvious that it was of im-fall age." Now, it is obvious that Court below found as a fact that opinion formed below. The dis- portance to Sung and Leung that such an expression with referance the appellants had acquired a honest purpose was carried into the documents executed on 10th. to a Chinese youth is, to say the working knowledge of English. I effect by concurrent signature of

least of it, ambiguoua,"

must accept that although as they a series of legal documents. My February, 1925, should be signed

did not speak English in the wit opinion was formed on seeing the without any question arising about

ness box, the only evidence of appellants as witnesses. It re- the infancy of Lam and Hin; it

their knowledge was that they had mains unshaken even though my been to Hongkong University and judgment seems to have been in said they could speak English, error in certain statements con-

account altogether.

blame."

Аст

No Interpretation.

It did the whole tramanction might After summarising the findings not have gone through. In any of Mr. Justice Wood, his Lordship case Sung and Leung would not went on to deal with the points from the two infants.

Plaintiffs Understood. "In theac proceedings it was

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pave received their 15 per cent, argued by the defence on the ques- English language and the under deed did not in fact contain au Reiss, Massey & Co., Ltd.

tions of age and fraud. In this connexion he said "Sung is dead standing of a legal document, express reference to the age of the op In English legal appellants themselves and it ap- Fraud Question. V

and the plaintiffs both deny that drawn

(Continued on Page 13.) After dealing with the second the release was ever interpreted phraseology, are two very differ pears never in fact to have been mortgage for $100,000 which, it to them; and I am of opinion that ent things.”

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