May 7, 1896.]
payee was mentioned.
The real point was, Were these bills of exchange? Counsel read section 3 of the Bills of Exchange Ordinauce which gave the definition of a bill of excharge and argued that the translations showed that every condition necessary to the validity of a bill of exchange was contained in the documents, the word "order not being ne cessary to its negotiability. He submitted that the order or request to pay was entirely free from any condition either expressed or implied, and as to the form in which the order was made he referred to Byles, 14th edition, 1889, in which it was stated that no particular form was necessary to constitute a proper draw. ing. The case of Ruff v. Webb, 1 Esp. p. 126, clearly bore this out. The defence might rely upon the case of Little v. Slackford, Moody, and Malkin, p. 171, and counsel distinguished the two cases.
He then referred to section 17 of the Bills of Exchange Ordinance and said the mere signing of the documents would be suffi- cient acceptance, but the defendant had gone further. When the bills were presented the -defendant not only sigued his name across the face of them, but wrote the word 'accepted." gave the date
of acceptance, and that date was calculated to the number of days mentioned in each bill plus three days of grace-three days of grace being allowed only in bills of exchange. The plaintiffs contention was that that fact being now admitted defendant was absolutely stopped from denying that these were bills of exchange. Sub-section 2-of section 27 of the Ordinance said, "Where value has at any time been given to the bill the holder is deemed to be the holder for value as regards the acceptance." If the defendant had refused to accept the bills and had refused to recognise them they would have been sent back to Persia and the Imperial Bank of Persia would have probably been in a position there and then to recover against the drawer or against any other person concerned in the transaction.
His Lordship-Subject to anything Mr. Robinson has to say, what strikes me as the real point of the whole question is, are these bills of exchange?
CHINA OVERLAND TRADE REPORT.
The Court adjourned. at 12.30 for luncheon to enable the parties to come to an agreement respecting the translation of the documents.
After the adjournment Mr. Francis said he had consulted with his learned friend Mr. Pollock and they asked permission to withdraw the second is- sue. They could not agree with the translations on the other side and it was so extremely difficult to get evidence. If his Lordship decided against them on that issue it would have been an end to their case, and their proposal was tó issue a commission from Persia as to the precise translation of the documents. The plaintiffs now asked for his Lordship's decision on the first and third issues as to whether plaintiffs were entitled to sue on the question of fact, assuming the documents to be bills of exchange. Mr. Robinson-If the other side will submit to a non-suit for-
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Mr. Fraucis A non-suit on an issue! Mr. Robinson-Yes, that is what it comes to. They have brought their case for hearing and they cannot prove that part they were trying to. They cannot prove there is a bill at all.
His Lordship. The whole thing hinges upon the translation of the bill. You have had a couple of months to get up the case and surely plaintiffs' solicitor should have taken steps to get a proper translator and not take up the time of the Court by arguing that their transla- tion is correct and then finding they cannot prove it.
Mr. Francis-There are many difficulties in the way. my Lord. and I do not think that the time of the Court has been absolutely wasted, because only a comparatively small portion of the time has been taken up by arguing this question.
In the discussion which followed Mr. Francis mentioned that Mr. Ismail handed to Mr. Hastings a translation of the documents and therefore the solicitor had done all he could in the matter.
judgment in any part of the case until I know His Lordship-I am not going to give any what the instruments really are.
Mr. Robinson-The defendant does not admit that he made any acceptance of bill. If this is a bill, then of course there is an acc. ptance.
Instead of taking up the whole time of the His Lordship This is very unsatisfactory. Court surely-
Mr. Francis-In opening the case I am bound to state the whole of the case for the plaintiffs. Counsel always opens his case on the assump- tion that his witnesses will be able to prove
what-
His Lordship I am not suggesting it is your fault. What I say is that those getting up the case must have known that a correct translation was required.
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383
His Lordship-I am rather inclined to think that the plaintiffs ought to pay the costs of the day.
Mr. Francis said quite 80 and that was the particular point to which he was asking his Lordship's attention. The defendant had treated them and recognised them as bills of exchange and had practically said These are bills of exchange and I accept them and I take advantage to claim three days grace." The plaintiffs being the holders, and not the holders in due course, the question would have to be considered as to what defence the defendant might set up in reference to the posi- tion of the Imperial Bank of Persia. The plaintiffs were simply representing the Impe- rial Bank of Persia and the question was, what contract did the acceptor enter into with the Imperial Bank of Persia? The signature of the Imperial Bank was on the back of the bills as endorsees, and the entire argu- ment must rest upon the assumption that the bills were bona fide, and his Lordship's decision might be reversed and entirely put aside for all practical purposes if the counsel for the defence was ultimately able to prove that the Bank of Persia were not holders for good value in due course. The defendant had entered into an un- conditional contract to pay the bills on a fixed date, so that the plaintiffs were entitled to what counsel would call an interlocutory judgmenting. The only question now is a question of for the full amount of their claim, because there was no defence on that point. By the admission of the defendant himself it was proved that the documents were bills of exchange and that he had entered into an unconditional contract to accept; therefore he was stopped from denying that the documents were bills of exchange.
Mr. W. A. Cruickshank was called to give evidence as to the holding of the bills by Messrs. Jardine, Matheson aud Co., and a merchant named Sadeck Ismail was called for the purpose of trauslating the documents from Persian to Hindustani in order to enable the Court interpreter to translate them from Hindustani into English. The witness did not understand English very well, and--
Mr. Robinson said he could not accept this mode of translation, as he wished to have a direct translation from the Persian into the English language.
Mr. Francis-It has turned out to be a very grave misfortune, Mr. Hastings, the solicitor conducting the case, did the best he could to get all the evidence, and he is of opinion, if I may be permitted to use a slaug expression, that he has been sold" by the witness whom he called. The witness got into the box and his evidence differs from that which he lead us to believe that he was going to give.
*
His Lordship-It seems to me that the most satisfactory course to adopt would be to adjourn the case. I cannot try the case on its merits till I know what document it is we are discuss-
costs.
Mr. Robinson-They should be non-suited, or, if there must be an adjournment, we are entitled to the costs of the day. Supposing, my Lord, I am promoted to the Bench before this case comes on for hearing again,-
Mr. Francis-Then they can get a much less troublesome man to carry on the case. (Laughter.) and I think I had better state shortly what has His Lordship--I cannot decide the case now, happened as another judge will have to try the exchange brought by the holders against the action. This is an action on two bills of acceptor. The bills are in Persian, and the writ was issued on the 8th June and the purport of the bills is set out in English on the writ. A summons was taken out on the 28th June. calling upon the defendant to show cause why the plaintiffs should not have judgment for the sum of $7,264 with interest. On that Mr. Bell-Irving filed an affidavit and he has set out two English translations of the bills. He states in his affidavit that these two translations are true at least he is informed and believes they are.. Then on the 8th July defendant filed his affidavit showing cause why affidavit he sets out what he alleges to be a true he should be at liberty to defend and in that translation of the document. translation different from the translation set He makes the
out in Mr. Bell-Irving's affidavit. The matter ordered the suit to proceed in the ordinary way, then came before Sir Fielding Clarke and he giving the defendants leave to defend. Then, later on, the parties came before me in cham- bers and they arranged amongst themselves and tried. four issues which they thought should be raised Of course the pleadings themselves are on the file and I do not know that I need
A discussion ensued on the quest of costs of the day, Mr. Robinson strongly urging that the plaintiffs ought to pay them.
Mr. Hastings was then called. He said that Mr. Ismail gre him a translation of one of the documents viva voce in English. Witness produced what he wrote down. Mr. Ismail spoke English moderately well.
D
Mr. Ismail was recalled and said that Mr. Hastings wrote out a translation in English and read it over to him and asked him if it was correct. Witness said it was. He did not know he was going to be called as a witness.
A further discussion took place and Mr. Robinson said the justice of the case required the plaintiffs to be non-suited as their case had been heard and they came into Court un- prepared with evidence. They could begin a fresh action if they liked.
specially allude to them except to say that the defendant specifically denies the second paragraph, the words he uses being these bills of exchange or negotiable instruments "I deny that the said documents are
colony or according to the laws in Persia." either according to the laws in force in this
Now it seems to me that the first thing that the plaintiffs would have to prove in opening these issues-three of which are asked to
prove would be the correct translation of be tried by me to-day-the first thing to
the bill of exchange. They knew that in the pleadings the defence specifically put in issue the question whether these documents were bills of. exchange or not. We have spent some time in arguing these issues
on
the supposition that the translation put in by Mr. Francis was a correct translation, and, as I understand, the translation of these bills was obtained in this way. In respect to one of them Mr. Hastings went into the box
..
Mr. Hastings being the solicitor who is with Mr. Deacon and has charge of this case-Mr. Hastings says as regards the translation of the $3,000 bill that Mr. Ismail called at my office and gave me a translation " (which Mr. Francia, in his opening statement to the Court, said was a correct translation). "I took it down from his lips in English. He spoke English and I produce the original translation as I took it down. He speaks English moderately well." Then when Mr. Ismail was put into the box to-day to prove this translation he tells us that he cannot speak English sufficiently well to translate a bill, and I understand Mr. Francis's contention is that this witness, for some reason or other, is telling & somewhat different tale now from that he told Mr. Hastings. For some reason or other he does not want to translate this bill to-day. Well, I cannot tell whether he is to blame at all or not to-day. He swore himself that he was not told that he would be required to go into the witness box to swear to the translation, and it is quite possible that he might have considered that he knew enough of English to tell anybody the translation, but not to tell upon oath that the translation is absolutely right; that he is not in a position to go into the witness box and swear upon oath when he hears a discussion about many of the actual words used in this bill, and he thinks it would be most ri, hit and proper for him to say that he does not know enough of English to be able to make a verbatimi translation of this document upon oath. Under these circumstances
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