Page
February 26, 1898.]
had no control counsel would dispense with the evidence and sum up the case to the jury.
Mr. Drummond then proceeded with his ad- dress to the jury. He said he proposed to run through the evidence as briefly as possible, to touch here and there upon some points which appeared to have some imp ortance in regard to the issues at stake, and to make some general observations in regard to the whole case. Counsel submitted that the only question which the jury would have to decide was, Were the defendants guilty of fraud in respect of the three items or any one of them ? He first of all referred to the fact that the plaintiff had some time ago consulted Mr. Johnson, but as a matter of fact Mr. Master was not aware of that until just be fore the case came into Court.
His Lordship said he did not think it was suggested that Mr. Master had improperly kept that fact back.
Mr. Francis replied that there was no sug, gestion whatever of any improper conduct on the part of Mr. Master.
Mr. Drummond then referred to the state. ment that plaintiff had been laying traps for the defeudants. Did the jury think that such con- duct was at all reasonable? The plaintiff had said that he told nobody that he snspected the defendants of fraud, but that statement was flatly contradicted by his witness Perry. Was the fact that plaintiff bad entered into a share contract with the defendants in November which did not conclude until February, thus putting himself at their mercy, consistent with his state- ment that he suspe ted the defendants? One remarkable thing which struck conusel occur. red several times during the case. Many documents which were put in, even those which had little bearing on the case, wera examined with microscopic care. Entries in the books were submitted to a microscope and an endeavour was made to decipher what cer. tain figures could possibly be, indicating that the plaintiff suspected defendants of perjury and forgery as well as fraud. At any rate, if that was not the meaning there was no meaning at all. Was it fair and reasonable to attempt to keep on grinding suspicion in the minds of the jury by the aid of a microscope in order to ascertain whether a certain figure meant some- thing else? Counsel then referred to the fact that plaintiff bad done a large volume of busi- ness with the defendants and was yet able to bring forward only three items; Counsel for the plaintiff had questioned Mr. Potts respecting a previous case he was concerned in. Was it a fair and reasonable course for the plaintiff or those acting for him to rake up old cases-gut- ter garbage-to endeavour to prejudice the jury's minds against the defendants? The same course was adopted in regard to two wit- nesses. That was not only for the purpose of endeavouring to throw a cloud of suspi- cion in the jury's minds about the witnesses in reference to old stories and previous trans- actions in which they were concerned, but it was one of the arts of advocacy which, he hoped, would not commend itself to the jury. The jury knew perfectly well that if they were put into the box and some old story was brought against them and an endeavour made to put it in the worst possible light, they would be angry and thrown off their balance for the moment. That was the course of procedure adopted by the plaintiff's counsel. Mr. Potts was thrown off his balance and put in an irritated state of mind af the commencement of his cross-ex- amination so that he would not be so clear-headed ás usual Was it in human nature to be cool ander such circumstances, and was the course of procedure fair? It had been suggested that Mr. Polishwalla had some interest in the defendant's firm-that he was a dummy. and there could be no doubt that that suggestion was made with the object of prejudicing the jury's mind. Counsel further submitted that It was most improper for the connsel for the plaintiff to ask Mr. Potts the questions whether considerable astonishment was not expressed when he joined the firm of Benjamin and Kelly, and whether Benjamin and Kelly were a re- putable firm.
Mr. Kelly had also been asked if he was an Irishman, if his father's name was Kelly, and where he came from. Those questions did no harm, but were they fair? Would the jury like to be asked such questions? But that was a significant instance of the way in which the case had been conducted. The
CHINA OVERLAND TRADE REPORT.
145
case was a very nasty one, involving charges of at $40. On the afternoon of Saturday he heard fraud, and it had been conducted in a nasty something from Mr. Perry which gave rise 10- manner. Counsel contended that it had been his suspicions and on the following Monday clearly proved by the evidence that Polishwalla he verified the fact that the shares sold by was a bona fide independent speculator on his Benjamin, Kelly, & Potts to Mr. Perry were own account and was not in any sense of the identically the same as those delivered. to Mr. word a dummy. He had done a large business Potts. not only with the defendants but with other that there was an intermediate sale.
The answer that was set up was brokers.
Of sistent, and although the system of book-keeping bona fide intermediate sale the plaintiff's case His accounts were plain and con- course counsel admitted that if there was ↓ was not very brilliant the books gave every fell to the ground. But it was the defendants information and were straightforward and who set up that there was an intermediate sale honest. In regard to the transaction in Indo- and it was for them to prove it. It was for truthful statement. His lordship asked him if sale, but to show to the jury's satisfaction that Chinas Mr. Polishwalla had given a perfectly them to establish not only the intermediate be bought shares at.840 and sold them at $40.75 it was a bona file one. A mere nominal sale would he not make a profit, and his reply would not be sufficient. They had admitted
No." The explanation of that was very simple and
that the account rendered was at $40 a share. was contained in the word By their pleadings in defence they alleged what Brokerage." He bought the shares at $40 they had not proved, that they never sold these and paid a brokerage of 50 cents; that made shares at $41 on that day. $40.50 actual cost. He sold them again and
The question now was not whether there was paid another brokerage of half a dollar, making fraud, carelessness, or inadvertence, or anything error, mistake, $41. Therefore the together with the buying and selling bro-intermediate sale on that day. If there was, cost of the shares, of that sort, but whether there was a bona fide kerage, was $41. If he sold them at $40.75 there was an end of Mr. Gorham's case as far it was obvious that he must have wade loss.
as that was concerned. The defendants at the commencement of the case explicitly denied that they had sold these shares either on the attention to this point because it was very 6th or any other day at $41. He called their important for them to consider whether there had been a change of attitude on the part of the defendants in regard to this transaction.
was "
64
at all.
The witnesses for the defendants had proved that the practice of double broker- age. although perhaps not frequent, oc- e:sionally occurred. It occurred where there was a broker on the other side or where the price of the shares was particularly good. The first charge was built up on the allegation that Mr. Polishwalla was a dummy. If Mr. l'olishwalla had satisfied the jury that he was not.a dumny no other explanation was needed. The second and third charges depended upon whether the plaintiff agreed to double brokerage suggested, or insinuated; it must be proved, A charge of fraud must not be hinted, and lawyers had a peculiar saying that a charge of frand must be proved up to the hilt." The charge was of the most serious possible nature to make in regard to business men, and it was not right to ask the jury to infer that the charge was true; it was for the plaintiff to prove it was true. Had he done so? That was the question the jury would have to answer at the end of the case. Plaintiff had been flatly contradicted by two wituesses as against one, and he had been contradicted by his own courss of conduct, which spoke stronger perhaps than any witness could speak. If he did lay traps he had put his own conduct in a very pleasant light, and he gave that as some sort of explanation of his long delay, but such explanation was not one which would commend itself us truthful oue. He was charging the defendants with a most grave offence and one which would ruin them if it was proved.
i
nothing
а
"Twas mine, 'tis his, and has been slave to thousands. "But he that filches from me my good name, "Robs me of that which not enriches hit, "And makes me poor indeed."
Counsel hoped the jury would remember those noble words of Shakespeare, for they conveyed a truthful moral in this case. He asked the jury to give the defendants a verdict of acquittal of the grave charges brought against them.
His Lordship pointed out that what was pro- bably meant was that the plaintiff's shares were not sold at $41.
Mr.
So.
Francis replied that possibly that was Even supposing it was so the defendants in their answer ought to have said that the shares were subsequently sold by Polishwalla to Kelly at $41. He would ask his Lordship to put a question to the jury asking whether there The consequence of the findings of the jury was was a bona fide intermediate sale on that day.
a question for the Court. In regard to the second and third charges he put it that the question was whether in point of fact the plaintiff had agreed to pay double brokerage.
His Lordship intimated that he had already framed the question for the jury in that
Mr. Francis, continuing, urged upon the jury
way. the fact that they were not bound to form any opinion for themselves as to whether there was deliberate fraud or not. There were many things which in the view of 8 of equity constituted legal fraud. which did not necessarily constitute moral or deliberate fraud. The case for the plain. tiff was, he submitted, very simple and very. straightforward. Counsel then referred at con-
court
After luncheon Mr. Francis addressed the jury on behalf of the plaintiff. He said that subject to His Lordship's ruling on the subject he had again to call the jury's attention to the fact that the questions on which they had to make up their minds were the two questions which he had spoken very clearly about at the opening of the case. They were questions of fact and the jury were judges of the facts. The plaintiff alleged with reference to the 100 Indo-Chinas that they were reported to him and accounted for to him and paid for to him us having been sold at $40 a share. Tho evidence which supported that charge was that these shares were sold on the same day at $41. On the face of the evidence he had put before them the plaintiff was perfectly justified in say- ing that. They would remember that Mr. Potts and Mr. Perry said that there was, at that time. no market for that particular kind of shares. Mr. Potts emphasized that he had instructions some time before that to get rid of Indo-China shares for Mr. Gorham and that he had no buyers, and also that he was instructed that morning and again said that he had no buyers, On the next day he was told that they were sold'
"Who steals my purse, steals trash; 'tis something, siderable length to the evidence bearing directly on the transactions and contended that every- thing proved that the plaintiff was perfectly. justified in entertaining suspicion of the defen- dants. He submitted that the statement by: brokerage was untrue. That matter rested Mr. Potts that plaintiff had agreed to pay double. entirely between Mr. Potts and the plaintiff. The plaintiff positively denied that any statements
were made with regard to the state of the market and he denied that he agreed to pay double brokerage. Mr. Potts The jury had unfortunately to beliere one of asserted that double brokerage was agreed to. those two statements. Mr. Gorham had the
ber and he made an entry of the trans-. matter vividly before his mind in Novem- action in his could have had no idea that this case was diary, while Mr. Potts
coming on and he had to rely entirely on tion, which was one of many he had put through. his memory in regard to this particular transac- But Mr. Gorham was clear and positive that no such agreement was made. It was undoubtedly and naturally they had defended themselves a very serious charge against the defendants, very vigorously, and considering this the jury would say whether they were or were not likely to be a little reckless in their statements. It'
agreed to pay double brokerage. The jury must was hopelessly absurd to suppose that Gorham not forget that if Gorham did agree to pay double brokerage on these two transactions and then came into court and made this claim he would be a far bigger scoundrel than Banjamin, Kelly, and Potts all put to. gether: his guilt would be far greater than any
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