100
Mr. Francis-I do not like to interrupt my Lord, but my friend is a stranger to this Court, and what he has done and is doing is wholly in regular. He has been summing up the plain- tiff's case, and has been appealing to the jury it a most improper and most irregular fashion. If he had intended to make such an appeal and to rely upon, the weakness of the plaintiff's case I ought to have summed up the plaintiff's case first before my friend addressed the jury, and I would ask your Lordship, if necessary, to in- struct the jury before they separate for tiffin that they are not at liberty to consider the ques- tion of the plaintiff's case until I have had an opportunity of summing it up.
His Lordship I think the counsel for the defence is entitled to suggest to the jury that there is no case for them to answer and that they ought to return a verdict in favour of the defendants.
Mr.. Francis. But not to take that chance and then to go on with the evidence.
His Lordship-He cannot ask the jury formally to do it. He can only suggest and they can act on the suggestion if they like. I do not like the counsel to stand on two legs like that, and if one leg fails to rely on the other. I think you ought to open your evidence, Mr. Drummond.
+
Witness
- [February 12, 1898... His Lordship-Well, gentlemen, we have Mr. Drummond here from Shanghai.
Mr. Drummond-Do not consult me, my Lord, I do not wish the jury to be inconvenienced.
It was then arranged not to sit to-day án l to résume to-morrow.
Mr. Siebs-Can the jury have 810 a instead of $10 for the case, my Lord ?
His Lordship-That is a matter . the parties, gentlemen.
Mr. Mody (one of the jurors)-Our time is very valuable, my Lord, and even $10 a day will not repay us.
Mr. Drummond I am quite willing, my Lord.
I could not offer
Mr. Francis-So are we. if, because it is the defendants' jury.
His Lordship-The case may last a little longer, gentlemen. (Laughter.)
Mr... H. Potts, one of the plaintiffs, again went into the box and Mr. Drummond continued his examination in chief, intimating that, he wished to ask the witness about all the transac. tions he had put through on behalf of the plain- tiff from the 17th November up to the time the action commenced. Witness then read entries from his day book of cash transactions put through for Mr. Gorham on the following dates:-November 17th, November 18th, No- rember, 24th, December 1st, December 7th, December 10th, December 12th, December, 14th (two transactions), January 27th, February 1st, and March 15th. From another book witness read entries of time transactions put through on behalf of the plaintiff on November 27th (two transactions), December 12th (two), and February 22nd.
THE HONGKONG WEEKLY PRESS AND November witness went to the Chartered Bank and Mr. Whitehead asked him to sell 50 Indo- Chinas. He then went to the Pacific Mail Company's office and plaintiff asked him to sell 100 Indo-Chinas. said he had absolutely no buyers. Plaintiff again said he wished to sell the shares, and witness said "I will see what Kelly can do." He went to Kelly and returned to plaintiff, telling him the shares could be sold for $40. Wit- ness again saw Kelly, who said he would close at that. Witness asked him who the buyer was and he said, "125 to Rolishwalla and 25 to a friend of Polishwalla." Wituess read the following entries in the firm's books:-"75 Indo-Chinas bought from C. L. Gorham at $40; sold to M. B. Polishwalla. Credit, $2,962.50; debit 3,037.30: brokerage $75 cash. Cheque 7.11.96. The second entry was :-" 50 Indo-Chinas, bought from Chartered Bank, $40, credit $1,975; bought, by M. B. Polishwalla. Debit $2,025, brokerage $50 cash. Cheque 7.11.96." The third eutry was:-"25 Indo- Chinas bought from C. L. Gorham, $40; credit $987.50; sold to M. B. Polishwalla. Debit $1,012.50; brokerage, $25 cash. Cheque 7.11.96." All the entries, with the exception of the names of the buyer, were written by witness. The plaintiff was very disagreeable that morning. He was angry with witness for not having sold the shares before. After tin Mr. Perry went to witness's office and showed the tele- gram he had received from Shanghai re. specting 100 Indo-Chinas. Witness said.
I have nons speak to Kelly."
for sale myself, but I will Witness walked over to Kelly's desk and told him that Perry wanted 100 Indo-Chinas at $41,, but he could not give $41, as it was a sale to a broker. Mr. Kelly said "Give Mr. Perry. 100 at 8404.” Perry took the shares, and nothing more oc- curred that day with regard to Indo-Chinas. That transaction was entered in the book as follows:-" November 6th. 100 Indo-Chinas, bought from M. B. Polishwalla, $402. sold to J. S. Perry; brokerage $25 cash. Credit, $4,025, debit, $4,075." On the following day witness went away from the colony with Whitehead and returned on the 9th. On the morning of the 20th November Mr. Perry, met witness and asked him for $10 West' Points. Witness said he would give bin 50 at $18. Perry tried to get them cheaper. He closed the transaction at once. Shortly afterwards witness met Kelly and told ́ him of this transaction and said he was going to give the sale to Gorham. Kelly said,
Witness, continning, said that he had no idea. You that the plaintiff was in any way suspicious of can get them much cheaper, so ask Gorham to the defendant firm. The first thing that hap. allow the double brokerage.' Witness sawpened that led him to think the plantiff enter- Gorham, told him of the sale of 50 West Points | tained suspicions was the receipt of the letter of at $183, and asked him if he would allow them to charge the double brokerage. Gorbam agreed to allow the double brokerage. Witness told him at the time that there were cheaper rates, and Gorham was pleased with the sale. When agreeing to the double brokerage Gorham said, "Yes, brother, that's all right.”
Mr. Drummond said he thought he was quite right in.doing what he had, as everybody's time was valuable, and if the plantiff's case had broken down it was no good to go on with the hearing. He mentioned that some time ago he adopted exactly the same course in that court before. His learned friend Mr. Francis was for the plaintiff and be was instructed by Mr. Wilkinson. That case was tried before Sir James Russell, and at the conclusion of the plaintiff's case, which had occupied some time, he (connsel) asked the jury if they thought the plaintiff had proved his case. They said. they did not want to hear the evidence for the defence and gave their verdict straight off. His Lord- ship entirely approved of that course.
Mr. Francis said his recollection was that the jury interposed in that case and it was more on a point of law that the plaintiff lost. He submitted that his friend had acted irregularly in summing up and commenting on the plaintiff's case more than was necessary.
His Lordship-I cannot say that Mr. Drum- mond is acting outside his rights.
Mr. Francis-Not acting outside his rights but acting irregularly-that is your opinion, my lord ?
The adjournment for tiffin was then taken. His Lordship, in addressing the jury, said that Mr. Drummond had mentioned that if the de-. fence was gone into it would involve a good deal of evidence. He was quite sure that that would not influence the jury one way or the other.
Mr. Siebs (foreman of the jury)—I think, my Lord, we must hear the defence.
His Lordship Then, Mr. Drummond, you will have to open your case.
After the adjournment Mr. Drummond said be would call evidence to show that the Indo- China shares were bought by Mr. Polishwalla at $10 and that afterwards Mr. Polishwalla, thinking it would be better to sell the shares, resold them! to the defeudants, who disposed of them to Mr. Perry for $41. That was the simple explana- tion of all the transactions. In other words, there was an intermediate sale of the shares between the time that the plaintiff sold them to the time Mr. Perry bought them. If that, fact was proved to the jury's satisfaction it completely answered all the charges of fraud,
as the circumstances connected with the second and third charges were almost identically the same as in the first charge. It would also be proved that plaintiff consented to a double brokerage being charged in connection with the sale of West Point shares.
. George Frederick Hutton Potts was then called. He said he was one of the defendants and joined the firm on the 1st April, 1896. Plain- tiff had been in the habit of giving him business prior to that date-since December, 1893: Wit- ness had generally been on friendly terms with the plaintiff and did many transactions with him after April, 1896. Some weeks before the 6th November plaintiff wished to sell Indo- Chinas, but witness advised him to hold on. During that time the tendency of the market in Indo-Chinas was downward. On the 6th
46
Mr.
Mr.
His Lordship-He said what? Witness-He said "Yes, brother, that's all right." He always used to call me brother, my Lord. (Laughter.)
Witness, continuing, said two days previously he sold 100 West Point, shares to Mr. Cobhold for the plaintiff. The entry in the book was-
November 18th. 100 West Points, bought from C. L. Gorham, $184, credit, $1.85, sald le Rev. R. F. Colbold; debit, $1.875, brokerage $50 cash." If plaintiff bad not, agreed to the double brokerage he would probably have not had the sale of the West Point shares. The shares could have been got at, $18 at that time, On the 24th November Perry again asked wit- ness for 50 West Points. Witness said he could give him 50 on the same terms as the last lot and he closed. Witness toll Mr. Kelly and also plaintiff of this transaction. Plaintiff, in answer to a question by witness, said he would allow double brokerage and that closed the transaction. An entry was made of the trans- action in the book. Witness produced the cheque in payment for the shares.
10th February.
Mr. Siebs, the foreman of the jury, said that they did not wish to sit on Friday as it was mail day."
|
|
A discussion theu arose as to whether the time book was being put in as evidence.
}
the purpose of refreshing the witness's memory, Mr. Drummond said the book was put in for
but he was quite willing that the jury should see the book.
being marked unless the book was put in as Mr. Francis said he objected to the entries
evidence so that any item in them could be re- ferred to.
in as evidence in itself.
His Lordship said the book had not been put
Mr. Francis continued to object to the book being seen by the jury unless it was put in as evidence, and it was agreed that the jury should not see the book.
the 17th March. Witness received the writin the action in the same month. He remembered having a conversation with the plaintiff on the 10th April, a gymkhana day. On the previous day plaintiff had met Mr. Benjamin and had talked over the case. It was in consequence of that conversation that witness went and saw the plaintiff in bis private room above his office shortly after two o'clock in the afternoon. No one else was present. Witness asked him what he meant by bringing the action. Plaintiff said he did not wish to discuss the matter, but he wished witness to make a business proposal. Witness said, “Mr. Gorham, İ. do not understand what you mean." He said, Oh, you are a business man, you understand." Witness said, "I do not."
Plaintiff replied.. "Well, Mr. Benjamin understands it. Go back and speak to him. He has got all Sunday to think aboutit. Come back and tell me on Monday. I am not out here for the benefit of my health. Witness said, "Look me in the face like a man, and say it again," and plaintiff would not, Several other things passed. Another thing. that plaintiff said was that Mr. Kelly had a large house and plenty of money and could afford to pay. On returning to his office he made a note of the conversation. The note produced was the one he made at the office. Plaintiff also said that since the case was made known several people had been to him and offered to pay his expenses if he lost and smashed up the defendants. He also said Mr. Polishwalla was a dummy and sold shares 'twice over and had done so on several occasious. Witness told plaintiff to get anybody he liked to arbitrate in the case. Plaintiff said, "No, my friend,"
No comments yet.
Private notes are available after approval.